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Mandui v Commissioner, Corrective Institutional Services and The Independent State of Papua New Guinea [1996] PGLawRp 722; [1996] PNGLR 187 (6 May 1996)

PNG Law Reports 1996

[1996] PNGLR 187 - Richard Tom Mandui v The Commissioner, Corrective Institutional Services and The Independent State of Papua New Guinea

[1996] PNGLR 187

N1425

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RICHARD TOM MANDUI

V

THE COMMISSIONER, CORRECTIVE INSTITUTIONAL SERVICES;

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Injia J

6 May 1996

DAMAGES - Personal injuries - Male assistant correctional officer aged 28 years - Right leg amputated above knee � Assessment of damages - General damages - Claim for economic loss as Assistant Correctional Officer and prospects of becoming a lawyer - Award of K40,000 general damages and an amount for economic loss limited to earning capacity as an officer of Corrective Institutions Service.

Facts:

The plaintiff sustained a compound fracture of his right leg in a motor vehicle accident involving a vehicle owned by the second defendant and operated by the first defendant. His left leg was amputated above the knee and he was an inpatient at Port Moresby General Hospital from August 1990 to June 1991 and later received specialist medical treatment in Australia. The plaintiff claimed loss of earning capacity including loss of the prospect of completing a law degree, completion of a course of practical legal training and working as a lawyer for the balance of his working life of some 26 years.

Held:

Assessment of damages for diminution of earning capacity is a two stage process. Firstly, the Court must have before it proper and sufficient evidence of diminution of capacity and secondly the court must apply the correct method of calculating the loss. The evidence showed that the alternative career as a lawyer was doubtful as there was no evidence that his employer had sponsored the plaintiff for further studies, and whether or not he would have successfully completed a law degree, the course of practical legal training and found employment as the salary indicated were matters for speculation. Accordingly, no loss of earning capacity would be allowed for a career other than that he had with the first defendant.

Cases Cited:

Aida v MVIT (August 1993)

Etape v MVIT [1992] PNGLR 191

Kerr v MVIT [1979] PNGLR 251

Koeba v MVIT [1984] PNGLR 365

Lumbering v Bougainville Copper Ltd [1977] PNGLR 183

Pinzer v Bougainville Copper Ltd [1985] PNGLR 160

Staup v MVIT N179 (1979)

Toea v MVIT [1986] PNGLR 294

Counsel

V Mirupasi for the plaintiff

F Wally for the defendants

6 May 1996

INJIA J: This matter comes before me for assessment of damages only. On 16 August 1990, the plaintiff sustained a compound fracture of his right leg in a motor vehicle accident involving a motor vehicle operated by the first defendant and owned by the second defendant. At the material time, the plaintiff was a C.I.S. officer based at Bomana C.I.S. and was a passenger returning from Moreguina, in the vehicle, on duty, when he met the accident. As a result of the said injury, his left leg was amputated above the knee. He also sustained injuries to his buttock. The plaintiff obtained medical treatment as an in-patient at the Port Moresby General Hospital from 16 August 1990 - 2nd June 1991 and later he received specialist medical treatment in Brisbane, Australia, from 28th July - 9th September 1992.

GENERAL DAMAGES

The plaintiff is entitled to receive reasonable damages to compensate him for pain, suffering and loss of enjoyment of life. Prior to the injury, he was a healthy, happy and attractive young man aged about 28 years old. Whilst performing his official duties, he was involved in athletics and sports and other social activities at the C.I.S. institution. As a young man, he had girl friends who visited his parent�s home; there was one particular girl whom he loved who was in Nursing School.

As a result of the injury he was rendered unconscious for some days. He experienced severe pain and discomfort during the entire period of his hospitalisation and thereafter. He still continues to experience some pain and discomfort to this day. He cannot exercise regularly and become involved in sports and other social activities at the C.I.S. He has lost his beloved girlfriend. His injury is a source of embarrassment, particularly coming from a family where his brothers have done well in school and attained University education. He is now confined to a desk job at the C.I.S. Headquarters in down-town Port Moresby.

For all this, the plaintiff claims general damages in the sum of K40-45,000.00. His Counsel refers me to past awards in cases like Lumbering v Bougainville Copper Ltd [1977] PNGLR 183 (K45,000.00)], Etape v MVIT [1992] PNGLR 191 (K29,000.00), Koeba v MVIT [1984] PNGLR 365 (K19,000.00), Toea v MVIT [1986] PNGLR 294 (K35,000.00) and Aida v MVIT [August 1993] (K30,000.00).

It is submitted for the defendants that a reasonable award would be between K18,000.00 - K35,000.00 but no more than K40,000.00. None of these cases referred to me involve an amputated right leg. The only case I am able to find which involves an amputated (left) leg is Staup v MVIT N179 [1979] where K20,000.00 was awarded for general damages for pain, suffering and loss of enjoyment of life which included sexual life placing stress on marriage. However it is some 16 years since and damages awarded have generally increased over the years due to rising and better standard of living, inflation, etc. The plaintiff in this case is an educated and working young man who had wide range of opportunities for enjoyment of life. I consider that the sum of K40,000.00 is fair compensation for general damages and I award the same. The plaintiff claims 30% on the K40,000.00 to compensate for rising inflation which has resulted in the devaluation of the PNG Kina by about 30% (according to the plaintiff). However, the award of K40,000.00 in my view takes into account inflation generally and this amount is adequate compensation.

SPECIAL DAMAGES

The plaintiff claims re-imbursement of past medical expenses and future medical expenses which is for the cost of purchasing wheel chair and false leg. He also claims out-of-pocket expenses for cost of purchasing police accident report, food and accommodation expenses for himself and his mother who looked after him during the period of hospitalisation in Port Moresby. He also claims on behalf of his mother loss of salary income as a Nursing sister during the period of her son�s hospitalisation when she was absent from duty. All these losses and expenses, except the cost of food for the plaintiff and his mother, are not really in dispute. In relation to food expenses, the plaintiff says they spent about K10.00 per person per day. The defendant submits a reasonable amount would be K5.00 per person per day. I consider that a reasonable amount would be between K5.00 - K10.00 per day per person but in view of the plaintiff and his mother�s modern living style, a reasonable amount would be about K7.00 each per person per day inclusive of smoke and betelnut for the mother. I allow this amount. I also allow the other total of the amounts claimed under the items which are not really in dispute. A summary of the awards I make under this category is as follows:

The total PNG Kina equivalent of past and future expenses in Australia using current exchange rate (buying rate) offered by the Westpac Bank (which is 0.9830) is K7,906.31.

The grand total past and future expenses is K20,250.71. This amount is to be subtracted from the sum of K1,126.00 which was paid by the C.I.S. for his medical expenses. The balance is K19,124.71. I award K19,124.71. Of this amount, the sum of K6,113.40 will be paid to the plaintiff�s mother, Mary Mandui, and the balance of K13,011.31 paid to the plaintiff.

ECONOMIC LOSS

The plaintiff claims damages for economic loss under four (4) headings:

N2>(a)����� Loss of salary from present employment

N2>(b)����� Public Officers Superannuation Fund Board contribution difference

N2>(c)����� Difference on accommodation

N2>(d)����� University education and Legal Training Institution benefits and difference of benefits for subsequent employment as a lawyer.

The plaintiff is still employed by the defendants as a Correctional Officer based at Headquarters. The loss of any salary income from his present employment or the loss of prospect of future alternative employment as a lawyer really relates to diminution of earing capacity. Therefore these two heads of damages will be dealt with together under diminution of earning capacity.

The loss of Public Officers Superannuation Fund benefits and loss of accommodation entitlements whilst in the employ of C.I.S. are also part of the plaintiff�s diminution of earning capacity as a C.I.S. officer and they will also be dealt with together under diminution of earning capacity.

Assessment of damages for diminution of earning capacity is done in two stages. First, the Court must have before it proper and sufficient evidence of loss or diminution of earing capacity. In Lumbering v BCL [1977] PNGLR 183, at p 205-206, O�Meally, A.J. quoted with approval on page of Samuel, A.J. in Allan v Loadsman [1975] NSWLR 789 at p. 793:

�....the inquiry concerns the difference between what he could have earned without the injury and what he can earn affected by the injury and its consequences. Whether the assessment is made in the conventional way, using the tables as guide, or by recourse to intuition, it is ultimately a money differential which is in question. It is necessary therefore, to have evidence as to the extent of the remuneration which the plaintiff remains capable of earning, and this imperative is not satisfied by establishing the nature of the work which the plaintiff is physically capable of performing. There must also be material which translates physical capacity into economic reward.�

Secondly, the Court must apply the correct method. In Kerr v MVIT [1979] PNGLR 251 at p. 271-272, Andrew, J. set out two alternative methods, which are:

�There are two main general methods of assessing future economic loss. The first and most common is to compare the pre and post-accident earnings of the plaintiff together with any contingencies. The second is the approach as illustrated in Dessent v Commonwealth of Australia [1977] 51 A.L.J.R. 482 to allow a percentage of the plaintiff�s pre-injury gross earning capacity. In other words if a person�s earning capacity is reduced by twenty-five per cent of his full capacity one takes twenty-five per cent of what he would have earned over his working life together with the appropriate allowance for interest and vicissitudes.�

By its very nature, diminution of earning capacity is incapable of precise mathematical calculation due to the many vicissitudes and contingencies facing life. I must do the best I can.

The evidence for the plaintiff is that before the injury, he was earning K79.71 nett per fortnight. But that is incorrect. His gross fortnightly salary was K257.55 and after-tax nett salary was K238.35 and his nett take-home pay was K79.71. For our purposes, the nett income is the after-tax nett: Pinzer v Bougainville Copper Limited [1985] PNGLR 160. The plaintiffs pre-tax gross fortnightly salary of K257.55 comprised of K237.55 for ordinary pay and K20.00 for service allowance.

The plaintiff says he�s still receiving the same nett income whilst his peers like ACO Moliwara Molik who earned the same income as him in 1990 is now earning after-tax nett salary of K318.73. ACO Molik says he received the same income received by the plaintiff in 1990 but since then, his nett income has increased to K318.73 of which K257.21 is the ordinary pay and the rest is for overtime (K27.70), other pay (K52.54) and service allowance K20.58). His take-home pay after deductions for tax (K39.30) and other deductions for his other benefits such as C.I.S. Savings & Loans Society and Life Insurance is K149.35. On the converse the Plaintiff�s ordinary pay in 1990 and service allowance has remained static.

The plaintiff says he has lost the prospect of married accommodation with the C.I.S. at the rate of K15.00 per fortnight because he did not get married due to the injury. He also claims that he has lost government contribution to the Public Officers Superannuation Fund of 15% and the loss of additional overtime and other pay.

The plaintiff seeks loss of income for the whole of the remaining balance of his working life with the C.I.S., which is 31 years. He was about 28 years old at the time of the injury and he expects to work until the public service compulsory retiring age of 60 years. He claims K57,940.00 in lost income but he is prepared to discount 10% for contingencies.

In addition to the above, the plaintiff then goes on to claim for the loss of prospect of legal education and employment as a qualified lawyer in the work force, preferably in the public service. This is what he says in his affidavit:

N2>�10.��� If I were not involved in an accident, I was to return to my law studies at the University of Papua New Guinea in 1991. I would have completed that Law studies in 5 years including the course offered at the Legal Training Institute, which course I would have completed in 1995. I would then have been employed in 1996 as a lawyer either in the private, statutory or Government Legal Departments, depending on where I wanted to go. My interest was to initially get employed within the Attorney Generals office and later switch to private. I applied to the University for further studies and was accepted by letter dated 6th December 1993 from the University Administration. However, I withdrew due to difficulties faced in attending classes and carrying of pads, note books and texts as well. Further, my disability was too much to allow me to continue a normal student life. If I had gone back to study law, [I was and] now a more matured man and I am absolutely confident that I would pass my courses and obtain a job. Annexed hereto and marked with the letter �L� and �M� are true copies of acceptance and withdrawal letters.

N2>11.���� My reason for being employed with the Corrective Institution Services was to obtain a sponsorship to study with full pay which I succeeded partly but withdrew.�

Under cross examination, he said the following:

N2>�Q.���� You applied for University - Did you actually attend UPNG?

N2>A.������ I was at UPNG for 2 months and the Department withdrew me from studies.

N2>Q.������ Why did they do that?

N2>A.������ Due to my disabilities, was told I could not cope with the studies.

N2>Q.������ Was there any truth in this reason?

N2>A.������ I didn�t face any difficulties with my academic work, I felt fine. The only problem was transport difficulties.

N2>Q.������ How were you able to carry books, attending mess, etc?

N2>A.������ Because I wasn�t boarding, it was hard. I used my bilum. I had friends who helped me.

N2>Q.������ Why do you think you would easily have graduated, got a degree and got a job as a lawyer?

N2>A.������ I was attending University doing law in 1986 but given 2 semesters off. So during that period, I joined C.I.S. Dept. in the hope to get some money or able to seek money from them to continue studies. But before that would eventuate, I got injured doing official duties. My desire to get back to my studies is very strong.

N2>Q.������ Are you more mature and confident now then before?

N2>A.������ Yes

N2>Q.������ You say if you were student at UPNG, you would have money benefits from government, i.e. boarding fee, etc?

N2>A.������ Yes

N2>Q.������ You are certain you would proceed to LTI and graduated?

N2>A.������ Yes

N2>Q.������ Tell the Court what qualifications your other brothers have got?

N2>A.������ One brother has a Bachelor Geography Degree with Honours, thats my younger brother, I am second born, my third brother has got Bachelor of Arts - Environmental Science with Honours.�

The plaintiff also relies on the affidavits of two legal private practitioners. Mr Harvey Nii attended the Legal Training Institute in 1988 and later joined Kirkes Lawyers. By 1994, he received an annual salary of K50,000.00. Mr Erastus Kamburi graduated from the Legal Training Institute in 1990 and joined the Public Solicitor�s Office as a legal officer on an annual salary of K12,000.00 per annum.

The plaintiff claims economic loss for the prospect of completing his Law degree course, completing his Legal Training Institute and working as a lawyer for the balance of his working life which is some 26 years. He claims K6,952.00 for lodging and tuition fees, pocket allowance of K13.00 per fortnight for 4 year from the governments National Scholarship Scheme whilst attending University. He then claims K4,290.00 being loss of government salary whilst attending the Legal Training Institute. Finally he claims K214,753.24 being loss of salary as a qualified practicing lawyer for some 26 years.

Evidence called by the defendant shows that the plaintiff is based at the C.I.S. Headquarters Office and he is still entitled to do overtime work in the office. However there is no evidence to show if overtime work is allowed for office work and if so, whether the Plaintiff has been permitted or refused overtime engagements.

From the evidence, I find that whilst he has not completely lost his employment prospects with the C.I.S., his present employer, he may have suffered diminution of earning capacity in terms of loss of prospect of earning over-time pay, promotion and increase in salary and other benefits as a result of his disability. In relation to promotion, there is little doubt that the C.I.S. saw his potential of becoming a senior officer and undertaken the task of sponsoring him for further studies. That is the most I can infer from the evidence in the absence of any evidence to show what his further training and promotion prospects were.

His alternative career as a lawyer is doubtful. First of all, there is clear evidence to find that the C.I.S. sponsored the Plaintiff to undertake further studies. I infer from this that the C.I.S. sponsored him because it suited their interest. Had the C.I.S. known that the Plaintiff was using the C.I.S. as an avenue or stepping-stone to obtain a sponsorship to study law and become a lawyer for his own purposes, I doubt whether the C.I.S. would have sponsored him in the first place.

Secondly, I find that his future really was with the C.I.S. as evidenced by his present position where he is still employed as a C.I.S. officer.

Thirdly, it would be pre-mature to say whether he would have successfully completed his law degree course and his Legal Training Institute course; found employment and passed through the provisional admission period, qualified as a lawyer, found secure employment and earned an income in the tune of K20,000.00-K50,000.00 per annum. If what he says about studying first year law in 1986 is true, then the letter from the Academic Registrar of UPNG dated 6th September 1993 shows that he withdrew from first year first semester courses in 1993. And it was some 7 years since he withdrew that he revived his intention to continue studies. Therefore, there is much uncertainty as to his ability to study effectively and complete his courses in pre-injury time that it is unsafe to find that he would have completed his law degree course. Even if he managed to complete his law degree and LTI courses, and became a lawyer, he would have most probably become a lawyer for the C.I.S. Department and this is part and parcel of his general diminution of earning capacity as a C.I.S. officer which I have already considered. For these reasons, I dismiss his claim based on his prospect of becoming a lawyer inclusive of school fees, pocket allowance, meal allowance and LTI salary.

Returning now to his diminution of earning capacity as a C.I.S. officer, whilst comparing the income received by ACO Molik and the plaintiff, the ordinary pay differs by only K19.66 in favour of the former. The service allowance component differs by a meagre .58t in favour of ACO Molik. The overtime component and other pay for ACO Molik comprises of K70.24 which the plaintiff does not receive. In total, ACO Molik is receiving K90.48 more than the plaintiff.

The plaintiff also claims loss of married accommodation and loss of superannuation benefits.

All these perceived losses are uncertain. There is no evidence as to whether overtime and other pay components are standard payments or dependent on hours of work performed, etc. There is no evidence as to whether the increase in ordinary pay is automatic, whether it is granted annually and by how much and so on. It is not certain whether the plaintiff would have got married and entitled to married accommodation. If he did, then it seems he would be entitled to receive subsidised accommodation for which he would pay K6.99 per fortnight in rental to the C.I.S. whereas he is claiming K15.00 per fortnight which the defendant denies. The superannuation benefit is also uncertain. Then there is no evidence, in percentage terms, as to any reduction in his post-injuries earning capacity. In these circumstances, I intend to apply the first method of assessment referred to in Kerr v MVIT. With all these uncertainties, I am prepared to do the best I can and allow the plaintiff a rate which would fairly compensate him for diminution of earning capacity as a C.I.S. officer, an officer who had the potential to work overtime and to become a senior officer on higher pay with other benefits like housing, increased superannuation benefits, etc. Taking into account the usual vicissitudes of life, and doing the best I can, I allow K40.00 nett income per fortnight or K20.00 per week for the remaining period of his working life of 31 years in the C.I.S.

Using the 3% capitalisation factor approved in Pinzer v Bougainville Copper Ltd [1985] PNGLR 160, I arrive at the amount of K21,184.00. I assess past economic loss at K5,296.00 and allow interest at 4% per annum. commencing from date of commencement of these proceedings to the date of judgment. I calculate interest at K466.12 on past economic loss. The total amount I allow under this heading is K21,650.12.

Whilst on interest, I allow 4% interest on general damages of K40,000.00 calculated from the date of commencement of proceedings to date of judgment. I award K2,400.00 for interest.

SUMMARY OF AWARDS:

There will be a verdict for the plaintiff in the sum of K83,174.83 with costs of this action in favour of the plaintiff as agreed or taxed.

Lawyer for the plaintiff: Nii & Mirupasi Lawyers

Lawyer for the defendants: Solicitor General