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Pumbu v Tenken and The State [1986] PGLawRp 375; [1986] PNGLR 289 (5 September 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 289 - David Yala Pumbu v S/Constable Teta Tenken and The State�

[1986] PNGLR 289

N553

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DAVID YALA PUMBU

V

TETA TENKEN AND THE STATE OF PAPUA NEW GUINEA

Mount Hagen

Los J

10-11 July 1986

17 July 1986

5 September 1986

DAMAGES - Personal Injuries - Particular awards of general damages - Abdominal injuries from shotgun wound - Lengthy hospitalisation - Severe scarring and permanent large hernia - Probable future complications - Inability to perform heavy work or play sport - Male police officer aged thirty-two years - Award of K38,000.

The plaintiff, a male police officer aged thirty-two years, claimed damages for personal injuries suffered in an accident involving the discharge of a police shotgun. The principal injuries suffered were as a result of the cartridge entering the plaintiff�s stomach perforating the large intestine and damaging the wall muscle. The plaintiff was in hospital in a serious condition for several months and has permanent severe scarring of the lower abdomen and a permanent large hernia. Future problems are likely to arise from intestinal obstructions and incisional hernias, requiring surgical intervention. As a result of the injuries the plaintiff is confined to light office duties only and is disabled from playing sport or undertaking physical activities.

Held

Damages for pain and suffering and loss of amenities should be assessed at K38,000.

Cases Cited

Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Trial

This was an action in which the plaintiff sought damages for personal injuries suffered as a result of the discharge of a police shotgun whilst on duty as a police officer.

Counsel

D O�Connor, for the plaintiff.

D Lambu, for the first and second defendants.

Cur adv vult

5 September 1986

LOS J: The plaintiff was injured by a discharge from a firearm on 28 May 1979. The evidence has established that the plaintiff, a policeman, and other policemen were out on duty investigating a complaint in relation to a break, enter and stealing at a trade store at Wapenamanda. They went to a village and saw many persons drinking who they believed to be involved in the break, enter and stealing. They managed to catch one. In the process of taking this man away, a shotgun was fired and the plaintiff was shot in the stomach.

The plaintiff claims that the first defendant who was the only member of the police party carrying a firearm had negligently discharged it and injured him. Alternatively he claims that the first defendant�s negligent act in care and control of the firearm caused the suspects and their relatives to take the firearm from him and shoot the plaintiff.

The evidence established that the plaintiff went to assist other policemen who went ahead to investigate the complaint. Mr Lambu�s appearance to represent the first defendant and the second defendant left little doubt that the plaintiff was on duty and he was injured in the course of his duty. Therefore the second defendant will be liable under s 1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) if negligence is proved against the first defendant.

The police party was a small one headed by a Senior Inspector. During the search and chase the only firearm that the party had was carried by one member. After catching a suspect the firearm was given to the first defendant to provide a rear guard defence. The suspect was caught down a cliff and the plaintiff and others had to take him up to a better or level place. Then the plaintiff for some reason had to control the suspect himself. During this time he was injured. I cite a part of his evidence taken during the examination-in-chief:

�I held the suspect. I was in the middle of the village. I held him firmly and we fought. He put me to the ground and I also put him to the ground. He put me to the ground and he ran away. When I fell down, I hurt my both knees. I was getting up slowly. As I stood, I thought I was stung by a bee or an insect. When I opened my shirt, I saw my intestine coming out. I looked around for help. ... When I looked, I saw Senior Constable Tenken (the first defendant). ... He appeared from the bushes and went to a singsing place. He followed the road to the main road. I called in Enga language �hapa� meaning father. He didn�t hear me. So I called again, Senior Constable Tenken, I am hurt please help me. He did not hear me and continued walking.�

The first defendant�s response to the plaintiff�s claim that he did not hear him was that as he was seriously injured himself and that he was scared and was thinking about his own life, he could not assist the plaintiff.

Something had suddenly gone wrong! All other members seemed to have disappeared from the scene. Even if they did not assist in any particular way, their evidence could have assisted in a general way. None of them was called to give evidence. I am now faced with the evidence of one member against the evidence of the other. The first defendant was at the time a policeman of considerable experience, having joined the Force in December 1954. How he had allowed himself to be pounded upon I cannot understand. How he could have wandered off from the main party when he was entrusted with the only firearm the party had for protection is a mystery. He himself knew that the party had fewer men and a lot of people were around, many of them were drunk. His statements made to the police about five months after the incident differ materially from his evidence in court. In his statement he said:

�The people started to attack us. Seeing I had the shotgun, six (6) people attacked me, grabbed me and threw me on the ground. At the same time they grabbed the shotgun and tried to take it off me but I grabbed it so tight that they could not take it. I quickly got to my feet. At that time we were still struggling and the gun went off. I honestly do not know how the gun went off. When the gun went off, this took me by surprise and at the same instance they grabbed the gun and hit me with the butt on my head.� (My emphasis.)

In Court he said the gun was taken off him and he was hit with it. He became unconscious and fell down and he did know how and when the gun was discharged.

In my view neither version states the real truth. I acknowledge that the first defendant was entitled under the law not to incriminate himself. I do not expect therefore he could confess. I also appreciate that the first defendant could have been very embarrassed about the whole situation. On the balance of probabilities I believe the first defendant misjudged the �target� because of a constant movement as explained by the plaintiff: at one moment the suspect put him down on the ground and on another time he put the suspect down on the ground. In my view the first defendant shot the plaintiff by mistake. As an experienced policeman he should not have fired the gun in the circumstances when it was not safe to do so. However, if what he said was true, which I doubt, that the gun was taken off him he could not absolve himself from his responsibility. Somehow he got himself away from the main party that he was supposed to protect. He also needed the help from the other members of the party. He was disorganised. As a member who had the shotgun to defend the party from any attack, he owed a duty to every member of the party. Likewise the whole party needed to organise itself in such a way that no member was placed at risk. Instead the plaintiff was left to attend to the suspect himself. The first defendant had breached his duty to provide sufficient protection for the plaintiff. I find that the plaintiff was injured because of the negligence of the first defendant. As the first defendant was on duty that time, the second defendant is liable as the employer of the first defendant.

DAMAGES

There is no evidence of any economic and other special losses. The plaintiff was on full pay throughout his hospitalisation. He is still employed by the Police Force doing paper work. The claim is largely for pain and suffering and for loss of amenities. Except for future disabilities the State has not vigorously disputed the evidence of pain and suffering. Dr Nelson and Dr Kulunga agreed on many aspects of the injuries suffered by the plaintiff. There was a narrow entrance wound to the abdomen and a large exit wound due to the spread of the cartridge pellets. A large amount of abdominal wall muscle was destroyed and there was perforation of the large gut. Only prompt medical attention saved the plaintiff�s life. He was in a serious condition for several months at Wapenamanda and at Goroka Hospital. He suffered from infection and malnutrition because he could not eat. He has a severe scarring of the lower abdomen and a permanent large hernia.

Mr Lambu asserts that all the injuries have stabilised. The plaintiff has faced no serious trouble since he left the hospital so he cannot have any problem in future. This assertion is quite contrary to the medical opinions. The plaintiff was lucky to be alive and the doctors give credit to those who did the emergency surgery. Dr Kulunga says five years (ie, date of injury to date of hearing) is too short a period to indicate the plaintiff�s condition in the future. The complictions may come about in ten to twenty years. He is likely to suffer from intestinal obstructions and incisional hernias for which he will require operations in the future. He can undertake light duties like office paper work. He is unable to engage in any of his former heavy physical and sport activities. Dr Nelson estimates the plaintiff�s permanent disabillity to be 50 per cent. I accept this estimation. If he lives on, as he is approximately thirty-two years of age, he would live a further thirty-two years. I accept Mr O�Connor�s submission that this is a long time to bear a 50 per cent disability.

Most awards in Papua New Guinea have been for injuries to fracture of bones in certain part or parts of the body. Many cases therefore cannot fare well as yardsticks to use in assessing damages for this kind of injury. I am assisted by Mr O�Connor�s submissions that the type of awards that can compare well with this kind of injury are awards in the paraplegic cases because the 50 per cent disability refers to loss of total bodily function. The injury to abdomen (with intestines and all) affects the plaintiff�s ability to perform all activities unlike the damage to an arm or leg. In Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350, for instance Bredmeyer J awarded K90,000 and K75,000 respectively for pain and suffering and loss of amenities. While I think I can get general assistance from the paraplegic cases such as the case I have just cited, I should not equate an award for this kind of injury with the awards for paraplegic cases because the paraplegic cases have their own peculiarities. For instance a plaintiff in a paraplegic case faces an unpleasant life of not being able to control his bladder or his is bedridden most of the time. If these go together, a plaintiff has the worst kind of life to live before he dies. In the case before me the award should fall in between the awards for paraplegic cases and the awards for fractures of arms or legs. I therefore award K38,000 for pain, suffering and loss of amenities.

INTEREST

The power to award interest is contained in s 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52). The Act does not prescribe any rate of interest. The National Court Rules, O 12, r 6, before amendment, prescribed 8 per cent as the rate to be applied. The rule has now been amended so that subr (1) retains the discretionary powers under the Judicial Proceedings (Interest on Debts and Damages) Act. This subrule covers the period before and up to the judgment. Subrule (2) prescribes 8 per cent as the rate to be applied on any judgment debt remaining unpaid as from the judgment. The application of 8 per cent on awards for non-economic losses for both periods seems to have become a rule rather than an exception. I therefore take 8 per cent as the maximum that can be applied upon the award for pain and suffering and loss of amenities in this case.

For the purpose of paying interest I divide the award into two components � pre-judgment and post-judgment. As to when the interest should commence, there has been some differences of views. Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act leaves it open for the courts to decide on the interest rate to be paid on the whole or part of the debt or damages as well as to decide whether �for the whole or part of the period between the date on which the cause of action arose and the date of the judgment�. (My emphasis.)

One view is that interest should commence from the date of accident or injuries because pain and suffering and many other losses commence from there. The reasons for the view are logical. As the power to determine when to start the interest is discretionary, it seems to me that it is open to a Judge to decide depending on the case before him. The predominant view, and it has also been the practice, is to award interest as from the date of the issue of the writ. But the Supreme Court in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 has laid down the rule as it were that both commonsense and justice require that the interest on an award for pain and suffering and loss of amenities should be awarded from the date of accident similar to the interest on an award for economic loss. I follow this rule. The plaintiff was injured on 28 May 1979. From this date to 5 September 1986 is about seven years and three months. I think that the plaintiff would have suffered more pain and suffering during the hospitalisation and soon after. He would have been shocked that his life has changed. As the time goes on, he will accept that he is no longer the man that used to be. I would therefore apportion K25,000 for pre-judgment, pain and suffering and loss of amenities. I determine the interest on this amount at 4 per cent to be K7,250. I award this sum as interest upon � K25,000.

I order the second defendant to pay for the damages to the plaintiff in the sum of K38,000 plus the interest of K7,250.

Verdict and judgment accordingly

Lawyer for the plaintiff: D O�Connor.

Lawyer for the first and second defendants: State Solicitor.