National Court of Papua New Guinea

(d)p>(d)&>(d) #160; & &#160 Both eyerids gaine eyes;

(f) L60; Left eeft eye feyls dels dark and blurry;

(g) ـ҈ eye see close objects but not clearly;

(h)&#16) <ـ S aing at a spot for a whia while makes tears fall;

(i) &##160;&##160; Sees oees objects y;

(j) &##160;; Vi0; Visibiliibility worsening since the accident;

(k) ;&#16lour blind.

The defendant’s counsel nsel in cross-examination sought to test test the extent of the disability. To some limixtentwas ao show that the Plaintiff’s visibility may not be completely lost lost.&#16. Bu0; But then it difficulticult area for us n to make accurate judgment on these kind of matters. I accept Dr. Ko’s ev;s ev;s evidence as to the Plaintiff’s diity as at 27 May 1993. These was howno medical rcal rcal report as to the Plaintiff’s percentage disability at the time o trial (July 1995). T60; The disabilay have deve deteriorated or improved since 27 May 1993. I do now. In the abse absence of any other evidence, I am left to accept Dr. Korimbo’s assessment and which I do.

QUANTUM OF DAMAGES

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The Plaintiff was admitted to Arawa GenerGeneral Hospital after receiving these inje injuries. He was in a state of uncousciousness when he was taken there. He was an impatient for 7y8 days. After he was discharge rete returned later o subsequent days for review. He was flownoroka General eral for an eye-operation whic which was done where he was admitted for days.; Up to this day day he complains of sight problems and pand pain in the right eye, etc. He would nbt have sufferedfered pain and discomfort during the period of hospitalisation and subsequent review and the eye-operation.

For all these pain and discom he is entitled to damages. Allother injuries exes excs except the eye are cosmetic injuries which healed well. I award K1,000or general dral damages for the other cosmetic other injuries.

As for the eye-injury, in assessing quantum of damages, I had recourse to a decision of Salika, J. in Sale Dagu v The State N1316 (5 April 1995) in w in which the Plaintiff a male security officer earning K95.00 per fortnight suffered 90-95% incapacity representing a near blindness of the right eye. His Honour h considered thed the award in eye-injury causes such as Jacqueline Kennedy v Jerry Nalau & The State [1981] PNGLR 543; Takieay v Norman Kinamur [1983] PNGLR 446; June Rohrlach v Evangelical Lutheran Church [1985] PN5] PNGLR 185 and Seke Opa v State [1987] PNGLR 469. His Honour award0,000 gene general damages for the eye-injury. The Plaintiff&#8 lawyer haer has referred to various other cases like Takie Murray v Norman Kinamur [1983] PNGLR 446, Rouney Aura v Papua Airline Transport Ltd [1983] PNGLR 273 Baduk v Papua New Guinea [1993] PNGLR 250 and others.&#160 He lso quoted passages fros from various learned authors on the subject and cited some awards in some Australian cases. The Plainteeks K65,000.00.0.00.

In the case before me, I consihat a fair and reasonable able amount for pain and suffering and loss of amenities would be K30,000.00. In total, I award K31,0 for general damages. #160; In arrivi this amountmount, I have taken into account the award in Sale Dagu v The State, supra.&#16 this case, the plaintiff is also a male security guard with “near blindness” i21; in the right eye only. I have decidedncrease the the award here because the medical evidence shows that both his right eye and his left eye are affected and the 95%bility assessed by Dr. Korimbo relates to the total visual disability of both eyes.

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Special Damages

The oral evidence of the Plaintiff supports the following expenses associated with his medical treatment:

Hospital at K250.00 each:

The Defendant submits that there is no evidence as to any specialist treatmeing required and costs incu incurred whilst attending at Goroka Hospital. He also submits the aancesances at Dr Korimbo’s Clinic at Port Moresby is not supported by receipts. I reject submissions on thon the basis that oral evidence given by taintiff on these matters has not been controverted by the Dthe Defendant. I find on the balance of probabilities that the Plainincurred these expenses ands and they were necessary expenses.

The Plaintiff’s Counsel in his submission has particularihe Plaintiff’s expenses and arrived at a total of K3,f K3,526.97. However, I have to allose hose expenses supported by the evidence. My figure comes to 8.00.&#00. I would allow K250.0y for for one attendant at Arawa General Hospital.&#1 award the total sum of K2,328.00.

ECONOMIC LOSS:LOSS: LOSS OF INCOME AND LOSS OF EARNING CAPACITY

Immediately beforeaccident, the Plaintiff wasf was employed as a Security Guard with catering firm SHRM at Panguna commencing in 1979 from which he earned K264.00 nett pay per fortnight (see payslip, Exhibit “C”). There is howeveevidence toce to support loss of income for the period he was hospitalised and was obtaining medical treatment. It is probable his employeployer paid him ose time he was away from work.

It is submitted by t by the Plaintiff’s counsel that the Plaintiff’s loss of actuanings should be calculated from the time the Plaintiff resi resigned (28/7/89) from his job due to the disability (this is disputed) to the time of trial (21/7/95). He submits the Court should award K37,615.80 He then goeso submit that that the Plaintiff should be awarded K80,436.47 for loss of future earning capaciich iich is the total income he would have earned for emain4 years of his wois working life.

In my view howeverwever, the following unsatisfactory evidence appears from the Plaintiff&#8 oral evidence:

1.&#>1. & H60; He continued to be employed by SHRM after the accident for some 2 years after sustaining the injury even though he was under substantial disability.

2. ـ H6 dd to n in whilswhilst SHRM SHRM was iwas in then the process of reducing its workforce due to the Bougainville crisis. The Bougainvilleis in teri teriodch isl conng toady, is a matter of publ public knic knowledowledge ange and I take judicial notice of it. Eveny, SHRM shut down due due e crisis. The Plaintiff says “if the Company asny asked me whether I wanted to resign, I would have said 1995. Becaf the acci I resigned gned in 1989”. It is comm common knowledge now that due to the Bougainville crisis, BCL operationsuding SHRM sere shutdown and the Plaintiff would have left employment earlier than 1995.&#15. It is probahat he resignedigned fis ement on his own acwn accord due to the prevailing crisis and not as a result of the injury.&ury. But it is probable that hiat hiability may have deteriorated over the years and this affecaffected his livelihood and his earning capacity as years went by in termsinding alternative similar employment.

3. &#160 ټ&##10; There iere is no expert medical evidence, etc. to support his contention that he resigned because of the disability.

On the evidence, I am unable to find that his eye - ilityed hiresign sign his ehis employment. However, I do find tind that before the accident, he was engaged in various paid employment in Bougainville culminating in being a Security Guard immediately before the accident and the injury to the right eye would have aed his ability to perform eorm effectively in some form of paid employment.

In assessing his loss of earning capacity, it is difficult to use the type of job and income he was earning before the accident as a basis to calculate future loss because he did not posses any special skill apart from being a labourer and security guard for SHRM which is a special catering company which was contracted to B.C.L. Uhe closure of the mine, wne, whether the Plaintiff would have obtained similar employment elsewhere on similar income is doubtful.

Doing the best of estimates, I award a nominal amount of K10,000.00 for economic loss generally, inclusive of future economic loss.

SUMMARY

In summary, I award damages in the total sum of K43,328.00 inclusive of general damages, special damages and economic loss. I award interest at 4% fatm date of commencement of proceedings (19/12/91) to date of judgment (28/6/96) which I calculate at K7,799.04. I award total 1,127.04 inc4 inclusive of est plus costs. The Plaintiff shall costs osts of thef the proceedings.

Lawyer for the Plaintiff: Pato Lawyers

Lafor the Defendant: Young & Williams Lawyers

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