Andrew Tony v The Independent State of Papua New Guinea (2008) N3477

• Jurisdiction: Papua New Guinea
• Judge: Makail, AJ
• Judgment Date: 11 September 2008
• Court: National Court
• Citation: (2008) N3477
• Docket Number: WS NO 1263 OF 2004
• Year: 2008
• Judgement Number: N3477

Full Title: WS NO 1263 OF 2004; Andrew Tony v The Independent State of Papua New Guinea (2008) N3477

National Court: Makail, AJ

Judgment Delivered: 11 September 2008

N3477

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1263 OF 2004

BETWEEN

ANDREW TONY

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 - injury to left eye - 100% loss of vision of left eye - 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:

Ronnie Aura -v- Papuan Airline Transport Limited [1963] PNGLR 272

Takie Murray -v- Norman Kinamur [1983] PNGLR 446

Jane Rohrlach -v- Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185

Seke Opa -v- The State [1987] PNGLR 469

Melinda Baduk -v- The State & Ors [1993] PNGLR 250

Yange Lagan -v- The State (1995) N1369

Jonathan Mangope Paraia -v- The State (1995) N1343

Sale Dagu -v- The State (1995) N1316

Jack Lundu Yalao -v- 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. It 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 both 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 also presented Written Submission as well as making brief oral submissions. I reserved my decision to 11 September 2008. 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 Andrew Tony sworn on 19 November 2004 and filed on 26 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 remained unchallenged and not rebutted. Thus, from these Affidavit materials of the Plaintiff and his witnesses, it is the evidence of the Plaintiff and his witnesses that:

1. He is about 34 years old at the date of trial and comes from Nogoi Three village in the Banz District of the Western Highlands Province. At the relevant time, he was a Grade 9 student at Togoba High School. 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 a week for medical treatment. According to the Medical Report from Nondugl Health Centre of 25 November 1999, he sustained bruises, swollen body distended abdominal inhalation of water, swollen red eye, several wounds on his right lower limbs and 2 deep cuts to left lower ribs.

3. The only injury that he complains of now is the injury to his left eye which was confirmed by Dr Allan Kulunga in his Medical Report of 24 December 2003 where he gave 100% permanent loss of the Plaintiff’s left eye. The other minor injuries according to Dr Kulunga have healed over time.

4. Due to the injury to his left eye, he stopped going to school and did not complete his education. He lives in the village and owns coffee blocks and vegetable gardens. From the sale of coffee and vegetables, he makes about K 600.00 to K 700.00 per annum.

5. As a result of the injuries, the Plaintiff’s ability to do subsistence farming and other manual work has been greatly reduced as he cannot see with the left eye. He is now married and has one child.

ASSESSMENT OF DAMAGES

6. It must be borne in mind that although the Plaintiff has obtained 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 foot bridge collapse. 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:

1. General damages - K42,000.00;

2. Economic loss - K 10,000.00;

3. Special damages - K 260.00;

4. Out of pocket expenses

5. 8% Interest

6. Costs

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

General damages

9. The Plaintiff makes a claim for general damages. He claims K48,000.00.

10. Mr Kopunye of counsel for the Plaintiff in his written submissions under this head of claim refers to a number of past cases and awards made for eye injury. Like wise, Ms Tindiwi also refers to the same cases which I will refer to shortly to make a comparison with this present case to determine a fair and reasonable award for the Plaintiff.

I set out these cases briefly hereunder:

1. Rouney Aura -v- Papuan Airline Transport Ltd [1963] PNGLR 272. This is a case where the Plaintiff, a 20 year old trainee telephone technician earning 3 pounds a week was injured when a flying glass cut the upper part of his face and a portion of it cut the cornea of the left eye. His vision was diminished by more than 50%. The Court awarded general damages of 1,150 pounds. The decision was made on 7 June 1963.

2. Jacqueline Kennedy -v- Jerry Nalau & State [1981] PNGLR 543. In this case, the Plaintiff, a female child of 8 years and 8 months suffered facial injuries resulting in permanent facial scarring requiring future cosmetic surgery and a scarred eye in a motor vehicle accident in February 1977. The Court awarded general damages of K 10,000.00 inclusive of future economic loss and future medical expenses. Total award including interest and special damages was K 12,736.00. This decision was made on 22 January 1981.

3. Takie Murray -v- Norman Kinamur [1983] PNGLR 446. In this case, the Plaintiff, a married woman suffered injury to her left eye as a result of an assault. Her eye was surgically removed and artificial eye inserted. It created irritation, disfigurement and psychological distress. The Court awarded general damages of K 20,000.00 on 26 August 1983.

4. Jane Rohrlach -v- Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185. The Plaintiff, a 15 years old student was blinded in one eye by a staple fired by a fellow student. A settlement figure of K 52,452.86 was approved by Court. After deduction for legal costs and medical expenses, the balance of K 47,089.39 was invested for and on behalf of the infant. This decision was made on 17 May 1985.

5. Seke Opa -v- The State [1987] PNGLR 469. In this case, the Plaintiff, a villager in mid 20’s (mid 30’s at date of trial) suffered severe head and other injuries including an eye injury resulting in total blindness, disfigurement and paralysed eyelid. The Court awarded K 60,000.00 in general damages for pain and suffering and loss of amenities of life on 5 October 1987.

6. Melinda Baduk -v- The State & Ors [1993] PNGLR 250. In this case, the Plaintiff was a 9 years old Grade 4 pupil at Waigani Community School. On 2 February 1989, another pupil threw a sharp pointed lead pencil at her right eye and it poked her eye thus, causing severe injuries resulting in the removal of the eye. It was assessed that she suffered 100% loss of vision of right eye and a false eye was inserted. The Court awarded K 35,000.00 in general damages plus K500.00 in special damages giving a total K 35,500.00 on 01 July 1993.

7. Sale Dagu -v- The State (1997) N1316. The Plaintiff was a 34 years old security officer who sustained injuries to his knee, head and face including his right eye. He suffered eye irritation which developed traumatic cataract of the right eye consequently reducing his vision dramatically. The cataract was removed and he suffered a 90 to 95% visual incapacity which represented near blindness. The Court awarded K20,000.00 in general damages for pain and suffering and loss of amenities plus interest of K1,390.47 and economic loss K 2,000.00, totalling K 23,390.47. This decision was made on 5 April 1995.

8. Jack Lundu Yalao -v- MVIT (1997) N1488, the Plaintiff, a security officer suffered...