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Jinamy v Independent State of Papua New Guinea [2008] PGNC 135; N3481 (11 September 2008)

N3481

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1262 OF 2004

BETWEEN

THOMAS JINAMY
Plaintiff

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Makail, AJ
2008: 11 September
: 4 September

DAMAGES - assessment of damages - for physical injuries, pain and suffering - 15% loss of use of left arm - pre existing disability - arising from collapsed foot bridge - general damages - increase in amount - based on and commensurate with inflation - economic loss - proof of - adult male villager - based on earnings of subsistence farmer.

Cases Cited

Papua New Guinea Cases
Armiger -v- The Government of Papua New Guinea [1978] PNGLR 516
Kokonas Kandapak -v- The State [1980] PNGLR 573
Kaka Kopun -v- The State [1980] PNGLR 557
Aundak Kupil -v- State [1983] PNGLR 350
George Pep -v- The State [1987] PNGLR 485
Nali Matabe -v- The State [1988] PNGLR 309
Nentepa Paim -v- The State [1988-89] PNGLR 651
Cecilia Dir -v- MVIT [1991] PNGLR 433
Mark Tumu -v- MVIL [1988-89] PNGLR 638
Peter Kuriti -v- The State [1988-89] PNGLR 633
Ambua Kulange -v- MVIT (1990) N842
Sangasib -v- MVIT [1991] PNGLR 449
Yange Lagan -v- The State (1995) N1369
Jonathan Mangope Paraia -v- The State (1995) N1343
Lin Wan Xin -v- Wau Yanhong (2001) N2160
Shelly Kupo -v- MVIT (2002) N2282
Roselyne Cecil Kusa -v- MVIT (2003) N2328
Andrew Moka -v- MVIL (2004) SC729
Swingley Oni -v- MVIT (2004) N2767
Wiri Kauli -v- The State: WS No 1209 of 2007 (Unnumbered & Unreported Judgment of 21 July 2008)

Overseas Cases:
Pickett -v- British Rail Engineering Ltd (1978) 3 WLR 955

Counsel:
Mr P. Kopunye, for the Plaintiff
Ms J. Tindiwi, for the Defendant

JUDGMENT

11 September, 2008

1. MAKAIL AJ: This is a very tragic case as the Plaintiff was one of the victims of a foot bridge disaster at Waghi River in the Nondugl District of the Western Highlands Province on 5 November 1999. The foot bridge was recently built by the Department of Works but the irony of it all is that, after it was officially opened by the then member for Parliament for North Waghi, Honourable Fabian Pok a few minutes earlier, the people in their jubilation and excitement walked across in numbers and it collapsed under their weight, sending many of them including the Plaintiff into the river. The Plaintiff was seriously injured. He seeks inter alia damages for physical injuries, pain and suffering.

2. Liability against the Defendant has been determined by entry of default judgment on 6 June 2005. Thus, the matter comes before me for assessment of damages only.

3. At the close of all evidence, I invited counsel to make submissions on the appropriate amount of damages I should award to the Plaintiff. Mr Kopunye of counsel for the Plaintiff presented a Written Submission and made brief oral submissions. Ms Tindiwi of counsel for the Defendant did not provide a Written Submission and I directed her to file and serve a copy on the Plaintiff by or before Friday 5 September 2008. I reserved my decision to 11 September 2008 to allow her to do that and she has done so and this is my decision.

EVIDENCE

4. The Plaintiff relies on the following Affidavits to support his claim for damages which were admitted into evidence without objection from the Defendant:

1. Affidavit of Thomas Jinamy sworn on 2 November 2004 and filed on 4 November 2004 (Exhibit "P1");

2. Affidavit of Micca Kaieng sworn on 8 July 2008 and filed on 28 July 2008 (Exhibit "P2"); and

3. Affidavit of Dr Allan Kulunga sworn on 21 September 2004 and filed on 5 October 2004 (Exhibit "P3").

5. Except for Micca Kaieng and Dr Allan Kulunga, counsel for the Defendant only cross examined the Plaintiff on his Affidavit evidence. The Defendant offered no evidence, thus much of the evidence of the Plaintiff and his witnesses remains unchallenged or not rebutted. Thus, from these Affidavit materials filed by the Plaintiff, it is the evidence of the Plaintiff and his witnesses that:

1. He is 33 years old at the date of trial. He is married and has 4 children. He was one of the many people on the foot bridge that tragic day when it collapsed and was seriously injured.

2. He was admitted to Nondugl Health Centre for four weeks for medical treatment. He sustained injuries to his upper left arm when the wire of the foot bridge struck him. He received deep cuts which required 9 stitches.

3. According to Dr Allan Kulunga’s Medical Report of 27 August 2004 he reported that there was a general wasting of the left arm, the left arm was useless from the shoulder down, loss of sensory of the whole left arm and all joints are of fixed extension. He further reported that the shoulder joints are stiff and painful for any movement. The fingers are in fixed flexion. The stiffness and no sensation of the left arm may have been caused by the nerve supply been damaged due to aggravation of a pre-existing condition. It was assessed that the Plaintiff lost 15% effective use of the left arm and 85% loss due to other unrelated cause thereby giving 100% loss of use of the left arm.

4. He has a pre existing condition on the same arm in that he suffered from polytonalities when he was a child and the arm is smaller in size.

5. He owns coffee trees and vegetable gardens including selling pigs. From these activities, he makes about K200.00 to K300.00 per annum.

6. As a result of the injuries, the Plaintiff’s ability to do subsistence farming and other manual work has been completely impaired as he cannot grip and hold tightly objects with his left hand. It is useless.

ASSESSMENT OF DAMAGES

6. In terms of assessment of damages, it must be borne in mind that although the Plaintiff has obtained a default judgment against the Defendant, hence liability is not in issue, the Plaintiff still bears the onus to prove his damages as a result of the injuries sustained from the collapsed foot bridge incident. See the cases of Yange Lagan -v- The State (1995) N1369 and Jonathan Mangope Paraia -v- The State (1995) N1343.

7. The Plaintiff claims the following damages:

8. I consider each of the head of damages below.

General damages

9. The Plaintiff makes a claim for general damages. He claims K14, 000.00.

10. Mr Kopunye of counsel for the Plaintiff in his written submissions under this head of claim has not referred me to any recent decisions of this Court or the Supreme Court for pre-existing condition being aggravated by fresh injuries which have awarded general damages up to and over K 14,000.00.
He only relies on the following cases to support his submission of K14, 000.00 for arm injuries:

11. Kaka Kopun -v- The State [1980] PNGLR 557 where the Court awarded K18,000.00 in general damages and K7,000.00 in economic loss to the Plaintiff who was a village subsistence farmer, coffee grower and vegetable gardener. There, the Plaintiff suffered a fractured left forearm (lower arm) and wrist resulting in an inability to grip and grasps objects, clear land, chop wood etc and was fit for light work only.

12. Nali Matabe -v- The State [1988] PNGLR 309, where the Court awarded K10, 000.00 to the Plaintiff who suffered fractured clavicle and there was 15% disability in the use of the left arm. In that case, the Plaintiff was a subsistence farmer.

13. George Pep -v- The State [1987] PNGLR 485 where the Court awarded K15,000.00 in general damages and K6,000.00 in future economic loss for reduction in village garden skills as well as a further K12,000.00 future economic loss from employment. In that case, the Plaintiff suffered fracture to his left arm bones which took a long time to heal and which required a bone graft and where all his disabilities resulted in a deformed arm and a 50% permanent disability of the use of his arm.

14. Ambua Kulange -v- MVIT (1990) N842 where the Court awarded K8,000.00 to the Plaintiff who was a village elderly female and who suffered fracture to her wrist and had the right thumb deformed, left preame obviated laterally, stir left wrist resulting in 10% loss of use of left hand and 100% loss of use of thumb.

15. Armiger -v- The Government of Papua New Guinea [1978] PNGLR 516 where the Court awarded K8,500.00 to the Plaintiff for a whiplash type of injuries which involved injuries to the shoulder, arm and laceration to the scalp, neck and gum. But there were no fractured bones.

16. Mr Kopunye submits that those cases show that the Court has awarded general damages for this kind of injury between K8,000.00 and K35,000.00 but as these awards are some 20-30 years old, the award in this case should be increased to between K8,500.00 and K18,000.00.
17. Apart from the fact that those awards were made some 20-30 years ago, he did not give me any reasons to support his submission for an increase in the award nor did he refer me to any recent case authorities to show that the awards have been increased by the Court for this kind of injury.

18. Ms Tindiwi for the Defendant submits on the other hand that an award of K 4,000.00 would be a fair and reasonable amount to be awarded when considered in light of such cases as Sangasib -v- MVIT [1991] PNGLR 449 where the Plaintiff, a 25 year old male community health worker and keen sportsman suffered fractures of 2nd, 3rd, and 4th proximal phalanges involving joints from a motor vehicle accident. The Court awarded K6, 500.00 in general damages for pain and suffering and loss of amenities.

19. In Mark Tumu -v- MVIL [1988-89] PNGLR 638, the Plaintiff a male medical orderly sustained personal injuries to his left arm and wrist, pain and limited movement. He was awarded K 9,000.00 in general damages.

20. Having considered the parties’ submissions, I am of the view that the amount of general damages I will award should be higher than those awards made some 20-30 years ago. I say this because I consider that inflation is a relevant consideration in the assessment of general damages. The object of such consideration is best explained in the English case of Pickett -v- British Rail Engineering Ltd (1978) 3 WLR 955, thus:

"Increase for inflation is designed to preserve the "real" value of the money; interest to compensate for being kept out of that "real" value. The one has no relation to the other. If the damages claimed remained, nominally the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same".

21. This English case has been cited with approval in the case of Aundak Kupil -v- State [1983] PNGLR 350. See also Lin Wan Xin -v- Wau Yanhong (2001) N2160, Shelly Kupo -v- MVIT (2002) N2282, and Roselyne Cecil Kusa -v- MVIT (2003) N2328. In Andrew Moka -v- MVIL (2004) SC 729, a 2004 personal injury case, the Supreme Court emphasized the effect of inflation on assessment of general damages in the following manner:

"We are of the opinion that in the light of high rate of inflation existing at the present time the Courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now than what the Court was awarding in 1988 and 1998.... Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case."

22. In the present case, the Plaintiff sustained injuries on 5 November 1999 which is nearly 9 years ago. There is no doubt that the value and the buying power of the kina has dropped significantly over the last 9 or so years. And so bearing in mind inflation in light of what the Supreme Court said in Andrew Moka’s case (supra), I proceed to assess a fair and reasonable amount of damages for the Plaintiff. This will depend on how much I will award as the starting point and increase it to cover for inflation.

23. In Andrew Moka’s case (supra), the Supreme Court after upholding the appeal of the Plaintiff, in that it found the Defendant liable for the personal injuries suffered by the Plaintiff went on to assess general damages for pain and suffering at K35,000.00. In that case, the Plaintiff, a male security guard of 32 years was injured in a motor vehicle accident in Lae and suffered comminuted fracture of the left tibia and fibula and minor head injury with no disability. It was estimated that he lost 40% efficient use of his left leg.

24. In the case of Swingley Oni -v- MVIT (2004) N2767, the Plaintiff suffered injuries when the motor vehicle he was in rolled backwards while trying to ascend a hill and rolled over. He dislocated his right shoulder and the doctor assessed 80% loss of effective use of right hand, 60% loss of use of right shoulder joint and gave an average of 70% loss of efficient use of right arm and shoulder. The Court awarded general damages of K40,000.00 after taking into account the high inflation rate in the country but reduced it to K32,000.00 because of 20% contributory negligence.

25. I have also considered the award in Kaka Kopun’s case (supra) where K18,000.00 was awarded to the Plaintiff, who suffered fractures of the left forearm and wrist from a fall whilst a detainee in a corrective institution. The injuries resulted in permanent deformity because of misalignment in union. Loss of efficient use of his forearm was assessed at 40-50%. The Plaintiff in that case also had a pre-existing disability in his right hand.

26. In Kokonas Kandapak -v- The State [1980] PNGLR 573 an award of K10,000.00 in general damages was made where the Plaintiff suffered a compound fracture of the right humerus with damages to the ulna nerve causing claw hand deformity. The initial non union of the fracture was corrected by treatment with bone plating and bone grafting. His loss of the effective use of his right hand was estimated at 50%.

27. The case of Peter Kuriti -v- The State [1988-89] PNGLR 633 involved a 27 year old male who was injured as a result of being savaged by a police dog on the left arm. He suffered 30% loss of efficient use of the forearm and also left with minor disfiguring and scarring. General damages were assessed at K9,000.00.

28. These cases represent a fairly wide range of awards for shoulder and arm injuries in the past. Except for Kaka Kopun’s case (supra), where the Plaintiff had a pre-existing condition, I have been unable to find any recent publications of awards on pre-existing condition being aggravated by a fresh injury, nor have either counsel referred me to any for the period 2004 - 2008. But doing the best I can in relying on those past awards I have referred, I bear in mind what has been said about increases in awards due to inflation and the need to make awards consistently with the current economic situation of our country as averted to by the Supreme Court in Andrew Moka’s case (supra) and His Honour Salika J in Shelley Kupo’s case (supra) where he stated:

"I am of the view that the injuries by the plaintiff are similar to Ron Tinpul. In that regard taking into account the current economic situation in the country and the value of the currency now and the inflation level I am prepared to go toward an amount double that awarded to Ron Tinpul. In the circumstances I award K80,000.00 for general damages."

29. In the present case, I have considered the Medical Report of Dr Kulunga of 27 August 2004 relating to the injuries sustained by the Plaintiff and I am of the view that such injuries are quite serious warranting a higher award for pain and suffering and loss of amenities of life. Besides, the Defendant did not challenge the assessment of Dr Kulunga of 15% loss of use of the left arm by reason of the injury. I accept the assessment of 15% loss of use of left arm.

30. There is evidence before me and I accept that the Plaintiff’s ability to do manual work has been impaired when he aggravated the pre-existing condition and the left arm is now useless. He cannot grip and hold any objects with his left hand. For example to grip a spade and fork to dig in the garden and to hold a knife to cut trees and so on. But I do not accept his evidence that he has completely stopped doing these kinds of manual work. I say this because he still has another arm to do them but at a reduced capacity.

31. In this case, the Plaintiff did not suffer any fracture to his legs or arms nor did he suffer any dislocation or broken clavicle as in Andrew Moka’s case (supra) and Swingley Oni’s case (supra) respectively. He only aggravated the pre-existing condition which has now rendered his whole left arm useless. And so I would assess K 8,000.00 as the starting point and allowing for inflation the final figure will almost double that amount. I would assess and award K 14,000.00 for general damages.
For these reasons, I award K 14,000.00 for general damages.

Economic loss

32. The Plaintiff also makes a claim for economic loss of K3,000.00. Mr Kopunye submits that based on Kaka Kopun’s case (supra) where the Court awarded K7,000.00 for economic loss and Nentepa Paim -v- The State [1988-89] PNGLR 651 where the Plaintiff was awarded K5,000.00 for economic loss for injuries to his teeth, head, right knee, thigh and developed abscess on his right knee with a 15% loss of use.

33. Ms Tindiwi urges me to award only K600.00 on the basis that the loss of efficient use of the left arm is only 15% but as there was a pre-existing condition, it was aggravated by the fresh injury which rendered the whole left arm completely useless. She also relies on the case of Kokonas Kandapak (supra) where the Court awarded K1,650.00 to the Plaintiff for economic loss.

34. Economic loss is one form of compensatory damages and it is intended to compensate the Plaintiff for the loss of earnings as a result of the injuries. This assessment is not easy because there is no wage to work from so it is necessary to consider a figure for a village subsistence economy. Even then, in a subsistence economy like in this case, it is quite difficult to accurately workout the loss of earnings of the Plaintiff. Thus, the Court is required to do the best it can to assess a fair and reasonable amount of damages for the Plaintiff.

35. The Plaintiff submits that he is a subsistence farmer and relies on gardening and planting coffee to earn a living in the village. Since the accident, he has been unable to work on the land to do gardening and planting coffee including building houses. He says that he earns about K200.00 to K 300.00 per annum from doing gardening and selling coffee. This equates to about K12.00 per fortnight. At least there is some evidence of the Plaintiff’s earning capacity in the past. As I said above, I also do know that he is not completely incapacitated and that he can still work using his right hand, but to a lesser degree.

36. I am able to see some similarities between this case and the cases of Kaka Kopun (supra) and Nentepa Paim (supra) and I am of the view that K3,000.00 is an appropriate figure for economic loss and I so order. Past economic loss from 5 November 1999 to 11 September 2008 I assess a round off sum of K3,000.00 based on K12.00 per fortnight.

37. I award a total sum of K 6,000.00 for economic loss.

Special damages & Out of Pocket Expenses

38. The Plaintiff also claims K150.00 as special damages as medical costs. There is evidence from the Plaintiff that he incurred this amount by way of receipts annexed to his Affidavit. The Defendant does not dispute this amount and I award this amount.

39. Secondly, the Plaintiff claims out of pocket expenses for transportation costs to pursue this claim against the Defendant. This he says is for the expenses incurred for numerous trips to and from his village to follow up his claim with his lawyers. He is unable to produce receipts of payments as PMV owners do not provide them. Here, I note the Plaintiff is from Tolpa Olo village located in the Banz District of the Western Highlands Province. Surely, he would have paid for PMV to get to Mt Hagen and for his return journey in order to pursue this claim thus far.

40. But he did not give an amount and so going by what I have awarded in the case of Wiri Kauli -v- The State: WS No 1209 of 2007 (Unnumbered & Unreported Judgment of 21 July 2008) I award K300.00.

8% Interest

41. I calculate 8% interest based on the principal judgment of K20,450.00 from date of issue of Writ of Summons of 20 September 2004 to the date of Judgment of 11 September 2008 which gives a total of 1,448 days at K6,487.04.

Costs

42. I award costs to the Plaintiff to be taxed if not agreed.

SUMMARY

43. In summary, I award the following:

ORDERS

I formally order as follows:

1. Judgment is entered against the Defendant in the total sum of K20, 450.00.

2. The Defendant shall pay 8% interest calculated from the date of issue of the Writ of Summons to the date of Judgment at K6,487.04.

3. The Defendant shall pay the Plaintiff’s costs of the proceeding to be taxed if not agreed.

4. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

____________________________________________

Kopunye Lawyers: Lawyers for the Plaintiff
Acting Solicitor General: Lawyers for the Defendant