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Tamarua v Alert Security Services [2002] PGNC 133; N2200 (20 May 2002)

N2200

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 471 of 2001

BETWEEN:

GORUA TAMARUA

Plaintiff

V

ALERT SECURITY SERVICES

First Defendant

AND:

STEAMSHIPS TRADING COMPANY TRADING AS 5 MILE KWIK SHOP

Second Defendant

WAIGANI: DAVANI .J
2002: 10, 20 May

DAMAGES – Personal injuries – Assault – Bruises to left neck – swelling to left parietal area of head – clotted blood in left ear – mild hearing loss and 5% loss of efficient use of left ear –K2,000.00 assessed for General Damages;

PRACTISE AND PROCEDURE – to specifically plead certain aspects of claim – loss of wages and salaries including future economic loss – mental distress and psychological loss - National Court Rules o. 8 r. 33(1) c; o. 8 r.33 (1)(g); o. 8 r. 33.

Cases Cited:
Pinzer v Boungainville Copper Ltd [1985] PNGLR 160
Dawa Yomi v the State N823 19.3.90
Jacob Paul an infant by his next friend Paul Rouse N896 1.8.90
Boiya Danny Nomane v MVIT N1019 22.11.91
Nita Yyakalo v MVIT N1092 25.8.92

Counsel:
A. Tupou for the Plaintiff

DECISION

20 May 2002

DAVANI J: The plaintiff applied for and obtained default judgment on 21 September 2001. The matter is now before me for assessment of damages.

Preliminaries

Default judgment is only against the first defendant. On the morning of the trial, the plaintiff filed a Notice of Discontinuance discontinuing proceedings against the second defendant. This notice was endorsed by both counsel for the Plaintiff and Second Defendant.

The assessment of damages is therefore against the first defendant only. On the morning of the hearing, the first defendant was represented by Pattersons Lawyers. The Lawyer in attendance informed the court that the lawyer who had carriage of the matter had only learnt of the hearing and was not in a position to proceed. Plaintiff’s counsel objected saying that the first defendant’s lawyer was always aware of the proceedings including the applications for default judgment and the hearing now before me but chose not to respond. I upheld the objections and ruled that the first defendant’s lawyer had not made any effort to contact the plaintiff’s lawyers and cannot now on the eve of trial expect or request the court to adjourn to suit him. I ruled that the court will proceed to hearing as the first defendant’s lawyer had no good reason to request an adjournment.

The plaintiff’s claim

By a Writ of Summons and statement of claim filed on 17th April 2001, the plaintiff alleges that he was assaulted by security guards employed by the first defendant on the 4th September 2001 and that as a result of that assault, he suffered injuries to his body. The plaintiff sought the following reliefs;

1. general damages for the assault;
2. special damages being:
   • (i) medical examination fees;
   • (ii) costs of groceries confiscated by the defendants; and
   • (iii) lost wages/salaries.
3. mental distress and psychological loss.
4. Costs

Evidence

The plaintiff relies on his affidavit sworn on 8th May 2002. He deposes in the affidavit that he was punched and kicked around his body and received a lot of kicks to his head. The medical report by Dr L Puloto dated 7th September 2001 referred to the following:

"there was swelling in the left parietal area of the head measuring 8 x 4 cm in size with clotted blood in the left external ear carnal. Bruises were also seen in the left neck with some muscular stiffness in the left lower back.

A hearing test done confirmed a moderate hearing deficit of conductive origin".

A further review of the plaintiff’s condition was conducted by Dr L Puloto on 10th May 2002. This was shown by a medical report which was tendered into evidence and marked as an exhibit. The report confirmed that hearing tests showed moderate hearing deficit on the affected ear consistent with nerve damage.

With regard to percentage disabilities, a report was completed by Dr L Puloto done on the standard Workers Compensation Act of 1978 "Medical Report on Injured Worker" form on 11 December 2000 and is attached to the plaintiff’s affidavit as an attachment, showed the following questions and answers which I set out in full below. These are:

Workers compensation Act 1978 medical report on injured worker

Patient’s name: Gorua Tamarua

Name of Hospital: Jacobi Medical Centre

Date of Admission: 5/9/2000

The following to be completed by the examining doctor only.

1. Brief description of injury assaulted by Police and Securities
2. Estimated period of incapacity: 1 week
3. Is patient’s condition static? Yes
4. Is further treatment necessary? No
5. Is patient fit to resume duty in his occupation shown above? Yes
8. Describe the permanent physical loss in accordance with the table (s.66 of the Workers Compensation Act) which is printed on reverse of this form. Where necessary state percentage loss (e.g 50% loss of distal phalanx left fore finger) for injuries not specified overleaf (see Q. 10).
   

- Had bruises and swellings in the head and ears plus neck and left lower back.

9. In addition to the actual physical loss shown in your answer to question 8, give a percentage estimate of a permanent loss of the efficient use of that part of the body in relation to the worker’s occupation.
   

- Pain and Discomfort - 10%

- Injury (left) ear - 5%

10. In cases where the injury is not specified on the table, give a permanent estimate of the permanent loss of the efficient use of the part of the body in relation to the worker’s occupation.

Total 15% impairment"

This table was prepared for a possible claim for works compensation which was not pursued. It therefore means that the disabilities relate to the persons occupation and the efficient use of that part of the body for that occupation. In this case the plaintiff is a motor mechanic and the disabilities relate to his form of employment as a motor mechanic.

Relief Claimed

The plaintiff’s claim consists of several components which I will address separately.

A. General damages

The plaintiff’s lawyer presented written submissions where she made reference to several cases and also suggesting an amount of K25,000.00 to be awarded to the plaintiff.

For comparison purposes, I will refer to several cases authorities that may assist in determining the amount. In the case of Nita Pyakalo v MVIT N1092, a judgment of Woods J. of 25/8/92 K8,000.00 was awarded to a plaintiff injured in a motor vehicle accident and who suffered perforations to his ear. Medical examination a year later showed a persistent pain and discharge with large perforations of the ear drum. The examination also showed that the plaintiff was still suffering from bilateral ear discharge and very bad hearing loss. There, the doctor could not confirm that the hearing deficiency did eventuate from the motor vehicle accident however the court found on the balance of probabilities from the evidence that it was more likely than not that any ear problems now suffered by the plaintiff did result from the accident and that this hearing loss was only partial.

In this case, the plaintiff also sustained bruises to the left neck. This coupled with the hearing loss shows that the plaintiff did suffer to a certain extent and now continues to have some mild hearing loss. However, his disabilities are not as serious as Nita Pyakalo’s.

I also do not know how this hearing loss affects his employment as a mechanic although the Medical (Workers Compensation) report completed by Dr Puloto shows there to be a 5% disability.

There is very little case law on hearing losses. Without much guidance from case law, I must now have recourse to other cases to assist me in determining a suitable amount to be awarded. I note that in the case Dawa Yomi v the State N823 dated 19/3/90, the court awarded the sum of K500.00 for general damages for minor abrasions suffered by the plaintiff. In the case Jacob Paul an Infant by his next friend Paul Rouse v MVIT N896 dated 1/8/90 the court awarded a one-year old infant the sum of K1,000.00 for general damages for a simple fracture of a collar bone sustained in a motor vehicle accident.

In relation to physical evidence of disabilities, the workers compensation medical report completed by Dr Puloto refers to a 15% impairment. Pain and discomfort is assessed at 10% and injury to the left ear is assessed at 5%. Pain and discomfort I would assume is what was suffered by the plaintiff immediately after the assault. Injury to the left ear is I assume, the loss of the efficient use of that left ear. As in the case Boiya Danny Nomane v MVIT N1019 dated 22/11/91 His Honour Woods J. awarded K8,000.00 in damages to the plaintiff for having suffered shoulder injuries when he fell off a motor vehicle thus sustaining a 15% permanent disability. There, the court found the 15% disability to be from the shoulder injury. In this case, the plaintiff suffers a 5% loss of efficient use of his ear and 10% impairment for pain and discomfort. I do not have evidence from the plaintiff as to how this affects his performance as a mechanic. The amount to be awarded to the plaintiff should be below K8,000.00. This is because his injury is not as serious as Boiya Danny Nomane or Nita Pyakalo. His disabilities are also minor.

His disabilities are described in general terms only and do not expand any further. They are described as "mild hearing loss" with no explanation from him or the doctor as to what this mild hearing loss is. I can only speculate. I therefore consider an amount of K2,000.00 sufficient for pain and suffering and disabilities he presently suffers from because the nature of his injuries are more serious than Dawa Yomi’s and are similar to Jacob Pauls.

B. Special damages

1. Medical examination fees
   

I have copies of receipts which are:

(i) PMGH receipt dated 6/9/00 for K2.00

(ii) Jacobi Medical Centre receipt dated 5/9/00 for K10.00

(iii) Jacobi Medical Centre receipt dated 8/9/00 for K80.00

(iv) Jacobi Medical Centre receipt dated 8/12/00 for K100.00

These monies will be paid to the plaintiff, the total sum of K192.00.

2. Cost of Groceries confiscated by the defendants

I have copies of three receipts issued after payment of groceries for the sum of K1.29, K1.39 and K1.39, a total of K4.07. This can be paid to the plaintiff.

3. Loss of Wages/Salaries

There is no evidence before me on this aspect. It is also not pleaded in the Statement of Claim.

The law on pleadings is clear on this aspect as provided in o.8 r.33(1)(g) of the National Court Rules which states inter alia that loss of wages, both present and future, must be specifically pleaded in the statement of claim endorsed to the Writ of Summons.

I refuse this part of the claim.

100. Mental distress and psychological loss
     

The plaintiff has not provided any evidence on this aspect nor is this aspect of the claim pleaded in the Statement of Claim, as is required by o.8 r.33(1)(c) and o.8 r.33(3) of the National Court Rules. These rules state that full particulars of injuries sustained by the Plaintiff, which includes a person’s mental condition, must be pleaded.

In any event, the Plaintiff’s lawyer abandoned this part of the claim at the trial.

I need not consider this part of the claim.

4. Interest
   

I assess interest on General Damages of K2,000.00 at 8% from the date of the filing of the writ to date of judgment, a period of 1 year, 1 month and 4 days, an amount of K180.95.

I assess interest on past loss at 4% on the amount of K196.07 being the out of pocket expenses (see Pinger v Bougainville Copper Ltd [1985] PNGLR 160), to be assessed from the date of the accident to date of trial, a period of 1 year, 7 months and 3 weeks, an amount of K318.36.

E. Costs

The first defendant will pay the plaintiff’s costs of the court proceedings to be taxed if not agreed upon.

F. Future Economic Loss

I note also that plaintiff has made a claim for future economic loss. This is only addressed in the plaintiff’s submissions and is not pleaded in the Writ of Summons and Statement of Claim. (see o.8 r.33(1)(g) of the National Court Rules).

I will not consider this part of the claim.

7. Total To Be Paid
   

The First Defendant will pay the Plaintiff the sum of K3,194.69 calculated as follows:

1. General Damages - K2,000.00

2. Special Damages -

i. Medical Examination Fees K192.00

ii. Cost of confiscated groceries K4.07 K196.07
3. Interest - K499.31

TOTAL - K3,194.69

8. Court Orders
   

The court’s formal orders are that;

1. The First Defendant shall pay the Plaintiff damages inclusive of General and Special Damages and interest thereon, assessed at K3,194.69;
   
2. The First Defendant shall pay the Plaintiff’s costs of the proceedings to be taxed if not agreed upon.

_______________________________________________________________________
Lawyer for the Plaintiff: Henaos Lawyers