Motor Vehicles Insurance Limited v Maki Kol (2007) SC902

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Lenalia and David JJ
• Judgment Date: 28 November 2007
• Citation: (2007) SC902
• Docket Number: SCA 69 OF 2006
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC902

Full Title: SCA 69 OF 2006; Motor Vehicles Insurance Limited v Maki Kol (2007) SC902

Supreme Court: Kandakasi, Lenalia and David JJ

Judgment Delivered: 28 November 2007

SC902

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 69 OF 2006

BETWEEN:

MOTOR VEHICLES INSURANCE LIMITED

Appellant

AND

MAKI KOL

Respondent

Hagen: Kandakasi, Lenalia and David JJ.

2007: 27 February

28 November

DAMAGES – Assessment of – Personal injuries – Leg injury – 80% to 100% loss of efficient use of – Plaintiff an unfaithful high school student at time of sustaining injury and loss – Award of K60,000 not inordinately high but lower – No cross-appeal- No proper foundation to increase award claimed in submissions.

DAMAGES – Economic loss – Plaintiff obliged to prove his loss – Unfaithful student with no evidence of engaging in any economic activity -Not entitled to past economic loss - Future economic assessable based on estimated residual disability and likely restriction in choice of employment - A global award to cover risks of either employment or unemployment in future and other contingencies in life, such as early death – Award of K75,000 based on allegation of K50 weekly loss without evidentiary support set aside and substituted with global amount of K20,000.

Cases Cited:

Papua New Guinea Cases:

Dillingham Corporation of New Guinea Pty Ltd v. Constantino Alfredo Diaz [1975] PNGLR 262.

John Alan Smerdon v. Tali Kaipeng Raquel [1973] PNGLR 313.

Kerr v. Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.

Andrew Moka v. the Motor Vehicles Insurance Limited (2004) SC729.

Pangis Toea vs. MVIT & PNG [1986] PNGLR 294.

Koko Kopele vs. MVIT [1983] PNGLR 223.

Pendagi Ban vs. The State (Unreported National Court Judgment) N827. Auwa Joe vs. The State [1988-89] PNGLR 545.

Cecilia Dir vs. MVIT [1991] PNGLR 433.

Richard Tom Mandui v. The Commissioner of Corrective Institution Services and The State [1996] PNGLR 187.

Korrolly, Tovue and Kolita v. MVIT [1991] PNGLR 415.

Rose Terema v. MVIT [1994] PNGLR 41.

Tambi -v- The State [1988-89] PNGLR 648.

Tom Tinpul v. Yere & Mt. Hagen Golf Club [1998] PNGLR 582.

Richard Mandui v. The State & Commissioner Correctional Services [1996] PNGLR 187.

Kepa v. Boi Gerek & The State [1991] PNGLR 424.

Coady v. MVIT [1987] PNGLR 55.

Nali Matabe vs. The State & MVIT [1988]PNGLR 309.

Overseas Cases Cited:

Livingstone v. Rawyards Coal Co (1880) 5 App Cas 25 (HL).

Counsel:

J. Naipet, for the Appellant.

S. Kak, for the Respondent.

28 November, 2007

1. BY THE COURT: The National Court assessed and awarded damages in favour of Maki Kol at K60,000 for general damages, K2,000 for special damages, K19,257 for past economic loss and K75,400 for future economic loss against the Motor Vehicles Insurance Limited (MVIL) out of a motor vehicle accident. In the accident, Maki Kol suffered a serious injury to his left leg resulting in an estimated residual disability ranging between 80 percent and 100 percent.

2. MVIL is appealing against the damages assessed and awarded against it except for the award of K2,000 in special damages. In support of its appeal, the MVIL argues firstly that, the award of K60,000 for general damages represents an increase of more than fifty percent (50%) from past comparable verdicts and arrived at after applying a formula that is contrary to the purpose of awarding general damages. Hence the MVIL argues that the award is inordinate and excessive. Secondly, the MVIL says the award of K19,257 for past economic loss and K75,400 for future economic loss were without the support of any evidence and, in any case, excessive and without applying the usual 3 percent compound interest tables. Proceeding on that basis, the MVIL argues for a set aside of these awards and be substituted with no award for past economic loss and a lower amount for future economic loss. Of course, Maki Kol says the learned trial judge did not fall into any error and argues for an upholding of the decision of the National Court. Alternatively, it argues that, the learned trial judge erred in awarding general damages at K60,000 which was inordinately low and asks for an increase of that part of the damages to K90,000.

ISSUES

3. Going by the arguments of the parties, the following are the issues presented to us to determine:

(1) Was the award of K60,000 in general damages erroneous, inordinate and excessive or low having regard to the comparable verdicts and principles for award of such damages?

(2) Was the award of K19,257 for past economic loss and K75,400 for future economic loss excessive and without the support of any evidence and in any case erroneously arrived at?

(3) Was the learned trial judge obliged to apply and if so did the learned trial judge err in not applying the usual 3 percent compound interest table before arriving at his decision on future economic loss?

4. We are of the view that, the second and third issues can be dealt with together under the broad heading, economic loss, while the first issue can be dealt with on its own. We deal with the first issue first and then deal with the second and third issues.

First Issue- General Damages for Pain and Suffering

5. This was not the first time the National Court had to deal with an assessment of damages for personal injuries and more so following a motor vehicle accident. Both this and the National Courts have dealt with many such cases, so much so that, the principles governing the assessment of general damages for pain and suffering are now well settled.

6. Generally speaking, a desire to compensate one’s loss and suffering is at the very core of the whole body of law governing the assessment of damages, be it for a breach of contract situation or personal injuries. Usually, the law looks at awarding damages in monetary terms not more or not less than what has actually been suffered or lost. Lord Blackburn in Livingstone v. Rawyards Coal Co,

1 (1880) 5 App Cas 25 (HL), at 39.

1 formulated the classical and often quoted principle in the following terms:

“where any injury is to be compensated by damages, in settling the sum of money to be given for … damages you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation.”

7. In time, this principle has become known as the principle of restitution in integrum. This principle applies to personal injuries cases with emphasis on the plaintiff being compensated to make good “so far as money can do’” his loss or damage.

2 See Dillingham Corporation of New Guinea Pty Ltd v. Constantino Alfredo Diaz [1975] PNGLR 262, for an acceptance and application of this principle.

2 At the same time, it is accepted that, an order for payment of money cannot possibly fully restore a condition of physical injury or loss by a person. In other words, assessing damages for personal injuries is not a matter of mathematics. It is rather an estimate in money terms, what one’s loss or injury is, with the aim of, trying to restore the loss as is nearly as is possible to do. This therefore, leaves much room for difference of views in assessment of damages in anyone given case. That is why, it is settled law that, an appellate court reviewing an assessment of damages can only interfere with the trial judge’s assessment of damages if it is satisfied that the trial judge acted on a wrong principle of law or has misapprehended the facts or for other reasons has made a wholly erroneous estimate of the damage suffered.

3 John Alan Smerdon v. Tali Kaipeng Raquel [1973] PNGLR 313.

3

8. In addition to the main principle set out above, there are a number of other well accepted principles of law governing the assessment of damages. One of them is the need to take into account the prevailing circumstances, especially the economic conditions at the time of the assessment of damages in the country as well as the views of the community as to what is fair and reasonable compensation. However, where the plaintiff is an expatriate who is temporarily in the country, the conditions prevailing in his country of origin needs to be taken into account.

4 See Kerr v. Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 for a detail discussion of the principle and its application.

4 The main reason for this is simple. The plaintiff will have to use the money awarded in compensation to cover for his loss in the country where he or she is going to live and within that country’s prevailing economic circumstances.

9. Another principle is the need to take into account, awards in previous similar or comparable cases and arrive at an award of damages that are similar to the awards in the comparable verdicts. This does not however, mean that the Court must be oblivious to the change in circumstances since the award in the past comparable verdicts. Instead, they are duty bound to take into account such things like rise in inflation and chances in the economy since the awards in the previous cases. A latest statement and application of that principle in our jurisdiction is by the Supreme Court in the case of Andrew Moka v. the Motor Vehicles Insurance...