N11713

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS	184 OF 2023

JAMES NANE
Plaintiff

V

G-MAN CONSTRUCTION
Defendant

KIMBE: ANDELMAN J
11 NOVEMBER 2025; 13 FEBRUARY 2026

DAMAGES – assessment of quantum of damages following entry of default judgment - workplace injuries – arm injuries – 100% loss of efficient use of right arm – contingent onset of osteoarthritis in affected upper limb – labourer – measure of damages for past and future economic losses - credible evidence of loss of income following the workplace accident–– special damages for medical and other related expenses – nominal damages awarded.

The plaintiff suffered a workplace injury as a result of the negligence of the employer. The injury resulted in 100% functional loss in the efficient use of the plaintiff’s right upper arm. After the injury the employer did not make any payments to the plaintiff and because of the injury the plaintiff has not been able to secure paid employment. The defendant failed to attend mediation and default judgment on liability was entered against it.

Held:

(1)	The Court awarded the plaintiff the sum of K91,450.
(2)	Interest calculated at the rate of 8% per annum from the commencement of the cause of action to the date of judgement to final settlement to the plaintiff pursuant to Judicial Proceedings (Interest on Debts and Damages) Act 2015.
(3)	The defendant shall pay the plaintiff's ordinary costs of the proceeding to be taxed if not agreed.

Cases cited

Kerr v Motor Vehicle Insurance (PNG) Trust [1979] PNGLR 251; PGSC 13 
Pangis Toea v Motor Vehicle Insurance (PNG) Trust & Anor [1986] PNGLR 294; PGNC 54
Posa & Anor v Sergeant Aiga & Ors [2022] N10056
Oni v Motor Vehicles Insurance (PNG) Trust [2004] PGNC 16; N2767
Takura v Motor Vehicles Insurance Ltd [2010] PGNC 113; N4105

Counsel

Mr N Loloma, for the plaintiff

1.	ANDELMAN J: The plaintiff commenced proceedings by way of a Writ of Summons filed on 13 September 2023 alleging negligence against the defendant. Liability was established by way of default pursuant to Order 12 Rule 25 and Rule 32(1) of the National Court Rules on 14 March 2025. This is a decision on the assessment of damages.

Pleadings

2.	The Statement of Claim filed on 13 September 2023 pleaded the following material facts:

a.	Mr Nane was employed by the defendant from 17 May 2021 to 18 September 2021 working on the New Britain Highway Project in Kokopo. 
b.	On 18 September 2021, Mr Nane suffered an injury as a result of the negligence of a fellow employee, Mr Sioti for which the defendant was vicariously liable.
3.	The particulars of the negligence of the defendant were pleaded as:
a.	 failure to provide supervision at a high risk area; 
b.	failure to instruct another workmate to watch out for the plaintiff;
c.	failure to provide a safe working environment;
d.	failure to use proper tools/machinery such as forklift to remove the drums; and
e.	failure to remove the drums during the daytime.

4.	 The particulars of the injury were pleaded as 100% functional loss in the efficient use of right upper limb and displaced fracture of midshaft right radius and ulna bones. The particulars of the special damages were medical expenses and assorted typing and stationary costs. The particulars of damages and losses suffered were pleaded as loss of salary from 18 September 2021 for future economic loss until the plaintiff attained the age of 65. The Statement of Claim sets out particulars under Order 8 Rule 33 of the National Court Rules. As to people dependent on the plaintiff’s earnings, Mrs. James at K150 a fortnight and Mr. Lapa Nane at K50 a fortnight were listed.

5.	 The plaintiff’s action is founded on the liability of the defendant at common law of tort and section 84(2) of the Workers Compensation Act.

The Evidence

6.	The plaintiff relied on the following affidavits:

a.	Affidavit of James Nane sworn on 26 May 2025;
b.	Affidavit of James Nane sworn on 27 August 2025; and
c.	Affidavit of James Nane sworn on 11 November 2025.

7.	The evidence was that Mr Nane was employed by G-Man Constructions Limited from 17 May 2021 as a labourer working on sealing roads in the Sealing Crew. 

8.	On 18 September 2021 he was involved in a work accident. He was at that time 30 years old. An excavator bucket was dropped on top of him and he fell. Four buckets of tar also fell on him as a result of the motion of the excavator. The injury was a crushed right arm.

9.	The medical evidence is from Dr Lapu, Senior Specialist Surgeon, Nonga General Hospital. He stated that Mr Nane’s right forearm (ulna and radius bones) was fractured as a result of a fall from a backhoe bucket whilst attempting to position drums in preparation for road sealing. He was taken to hospital and the physical examination revealed a grossly swollen right forearm. The radiological X-ray confirmed displaced fracture of midshaft right radius and ulna bones. He was managed on analgesics, antibiotics and was taken into the operating theatre on 28 September 2021 when the swelling was reduced. The fracture was manipulated for reduction. The repeat X-ray thereafter revealed partial reduction of the fracture ends. X-rays after six weeks showed delayed callous formation due to partial and unstable reduction. He continued in a cast.  He was recommended only for light duties allowing for enhanced slow healing to proceed further since he is right-handed. 

10.	The review undertaken on 4 July 2022 showed:

…complete malunited fracture with consequence post traumatic osteoarthritic pain and disuse of the concerned right upper limb. This clearly demarcated by muscular atrophy of the forearm and significant bonny deformity. The current X-ray confirmed gross deformity. The osteoarthritic condition is likely to be worsened as he advances with age in the future. … He is awarded 100% functional loss in the efficient use of the right upper limb.

11.	Since 18 September 2021, Mr Nane has not received any payment from his employer and has been unable to find any employment due to his injury.

12.	He has a wife and a younger sibling whom he looks after. Prior to the accident he supported his wife with K500 and his sibling with K50 per fortnight.

13.	He attested that as a result of the accident and the injury he has suffered emotionally, physically and psychologically.

14.	At the time he was employed he was receiving K415 a fortnight. He has spent K500 on medical expenses, and K5000 on travel costs associated with his travel from Kokopo to Kimbe.

Submissions
15.	The plaintiff sought general damages in an amount between K30,000 and K50,000. He referred to three cases that dealt with arm, hand and shoulder injuries; Oni v Motor Vehicles Insurance (PNG) Trust [2004] PGNC 16; N2767; Takura v Motor Vehicles Insurance Ltd [2010] PGNC 113; N4105; Pangis Toea v Motor Vehicle Insurance (PNG) Trust & Anor [1986] PNGLR 294; PGNC 54.

16.	K60,000 was sought for both past and future economic loss on the basis that he was 30 years old at the time he suffered 100% functional loss in the efficient use of his right upper arm, that he was an employee earning around K415 per fortnight recognizing the usual contingencies of life.

17.	 Special damages were sought for medical expenses and costs associated with travel associated with these proceedings.

18.	The plaintiff also sought interest and costs.

Consideration
General Damages

19.	A person who is injured by another person’s wrongful conduct is entitled to general damages, this applies as a tort principle.  When assessing general damages for personal injuries, the Court endeavours to award such amount as will fairly compensate the injured person for his or her pain, suffering and loss of amenities: Kerr v Motor Vehicle Insurance (PNG) Trust [1979] PNGLR 251; PGSC 13. There is no fixed mathematical formula for assessing these components of general damages.
  
20.	In Takura v Motor Vehicles Insurance Ltd (2010) the court awarded general damages of K30,000 where the plaintiff suffered 40% loss of efficient use of the right shoulder, arm and hand.

21.	In Posa & Anor v Sergeant Aiga & Ors [2022] N10056 the Court awarded K60,000 in general damages for pain and suffering where the second plaintiff suffered 40% loss of impairment of the right upper limb.  

22.	There has been significant inflation since 2010 which should be accounted for. In this case the plaintiff has suffered 100% functional loss in the efficient use of his right upper arm. He is right handed and will suffer pain as a result of osteoporosis in future years. I accept that Mr Nane has also suffered emotionally, physically and psychologically because of the injury he sustained.

23.	He was 30 years old when he suffered the injury and he will be handicapped for the rest of his life. I consider that K50,000 is an appropriate amount for general damages in this claim.

Economic loss
24.	 There is a claim for past and future economic loss. The claim is for K60,000 in totality.

25.	Mr Nane’s fortnightly pay was K415 a fortnight, this would make his annual salary to be 415 x 26.071 fortnight = K10,819.46.

26.	Mr Nane was only employed for a few months prior to the accident. This makes it difficult to assess whether he would have continued in that employment for a long period into the future. I accept Mr Nane’s submission that as a labourer it is not possible for him to find employment as he is unable to use his arm which makes his future economic loss substantial. This also goes to the issue of an obligation on him to mitigate his loss.

27.	I accept that Mr Nane planned to work until retirement age. I am prepared to find that Mr Nane would be still working for the defendant had it not been for the injury, this is a period of 4 years. I would reduce the sum by 10% for future contingencies such as early resignation, termination, retirement or death. 

28.	The sum for four years is K10,819.46 x 4 = K43,277.84, minus 10% - K4,327.78 equals to K38,950.

Economic loss of Wife and Sibling

29.	The plaintiff claimed damages in the form of economic loss for his wife and younger brother as a result of the defendant’s negligence. There is no evidence from his wife or sibling.

30.	 I am not satisfied that the plaintiff has satisfied the onus of proving that his wife and siblings’ losses are directly attributed to the plaintiff’s injury or that the loss was in the amount claimed. I reject this claim.

Special Damages
31.	Special damages requires proof. There are no receipts for payments for medical and associated costs incurred by the plaintiff. There is evidence that the plaintiff was hospitalised and underwent surgery and had to have numerous X-rays and medical assessments. This evidence is sufficient to support an award of special damages of K500. The claim K5,000 for travel costs is not supported by any receipts. There is evidence that the plaintiff worked and resided in Kokopo and had to travel to Kimbe for this proceeding. I am prepared to only award a nominal amount of damages for K2, 000. The total special damages awarded is K2,500.

Claim for Interest of 8%

32.	Interest at 8% will be awarded pursuant to Judicial Proceedings (Interest on Debts and Damages) Act 2015.
Costs
33.	The plaintiff has been successful in the claim. He has claimed K5,000. I am unable to come to any factual finding that the costs sought are reasonable or appropriate. I consider that in these circumstances, I should make the ordinary orders that costs be awarded on a party party basis to be agreed or assessed.

Orders

34.	I make the following Orders:
a.	Judgment is entered against the defendant in the sum of K91,450 which comprises of:
i.	K50,000 as general damages for pain and suffering of the plaintiff;
ii.	K38,950 as damages for past and future economic loss; and
iii.	K2,500 as nominal damages for medical and travel expenses.
b.	The defendant shall pay interest at the rate of 8% on the judgment sum of K91,450  from date of issue of the writ of summons on 13 September 2023 to final settlement to the plaintiff pursuant to sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015.
c.	 The defendant shall pay the plaintiff's ordinary costs of the proceeding to be taxed if not agreed.
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Lawyer for the plaintiff: Public Solicitor