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Kol v Shorncliffe (PNG) Ltd [2001] PGNC 83; N2121 (20 March 2001)

N2121

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. No. 913 of 1997

BETWEEN:

PETER NANGAIN KOL

Plaintiff

AND:

SHORNCLIFFE (PNG) LIMITED

Defendant

Mt. Hagen: Hinchliffe J
2001: March 20

ASSESSMENT OF DAMAGES ¾ Driver of motor vehicle injured ¾ Nose injury ¾ Awarded K9,500 for general damages.

Counsel:
P. Kopunye for the plaintiff.
K. Peri for the defendant.

20th March, 2001

Hinchliffe J: This is an assessment of damages in relation to injuries suffered by the plaintiff on the 23rd September, 1996 whilst driving a PMV through the town of Banz in the Western Highlands Province. The defendant had left a heap of rubbish and gravel on the road where it was up-grading the road and it left it unguarded and unlit. The plaintiff, at night, drove into the rubbish and gravel and was injured. Judgment was entered by default for the plaintiff on the 16th April 1998.

The plaintiff, who was in his middle to late 20’s, swore an affidavit on the 20th May, 1998, and he says, inter alia, as follows:

"21. The injuries suffered by me were lacerations to the nose, left knee as well as my chest.

22. I was admitted to the Nazarene Hospital at Kudjip and was in the inpatient for 4 days until a full recovery.
    
23. I have then since been discharged from the Nazarene Hospital at Kudjip but I went back again as I developed complication with the obstruction of my nose or nasal.
    
24. I was of course an out patient treatment on a daily basis.
    
31. Following the sustaining of injuries in the motor vehicle accident, although I have recovered fully in respect of the lacerations I still have got:-
    
    1. Block nose.
    2. I have problems in breathing; and
    3. It is a shame to have a nose which is not straight."
       

Annexure "A" to the affidavit of Dr. William K. Mckoy, dated the 27th August, 1998 is a Medical Report from the Nazarene Hospital dated the 3rd October 1996 and the 8th January, 1997. It reads, inter alia, as follows:

"3rd October, 1996

This is to confirm that Nangain Kol was injured in a motor vehicle accident on the 23rd September, 1996, suffering a laceration of his nose and left knee, as well as a chest wall contusion. His injuries required hospitalization for 4 days. A full recovery is expected in 2 to 3 weeks.

Sincerely,

Dr. William K. Mckoy, M.D.
Medical Doctor.

8th January, 1997

Addendum

In following-up, this patient continues to have nasal obstructive systems secondary to the MVA. These symptoms may well require corrective surgery in the future.

Sincerely,

Dr. Bill Mckoy, M.D.
Medical Doctor, Nazaren Hospital"

Dr. Allan Kulunga, the proprietor of Kintip Surgery Pty. Ltd, Mt. Hagen swore an affidavit on the 13th May, 1998 and annexure "A" to the affidavit in his Medical Report. The said report is dated the 8th May, 1998 and, states, inter alia, as follows:

"Medical Report
Ref: Peter Nangain Kol, M/A

Presenting History

I believe this man was injured in a motor vehicle accident on the 23/09/96. He sustained:-

(a) Nasal injuries
(b) Chest contusions
(c) Generalized body contusions.

History of Medical Treatment

He was admitted to Kudjip Hospital where management included:-

(a) Primary would debridement and suturing
(b) Antibiotics
(c) Daily dressing
(d) Analgesic for pain.

He remained in hospital on treatment for one week before discharged.

Current Presenting Complaints

- Nasal deviation
- Nasal stiffness over the injured site
- Sometimes has difficulty in breathing

Physical Examination

1. General Appearance

Fit young man but with obvious right nasal deviation.

2. Vital Signs

Normal

3. Head & Neck

- Nose deviated to the left.
- Small nasal depression at left nasion
- Nasal speech noted.
- Not much evidence of difficulty in breathing
- Eyes, ears, head, face, intact
- Normal neck movements.

Prognosis

Permanent cosmetic deviation of nasal and with nasal breathing.

Conclusion

The deviation and nasal speech are permanent. His other wounds have healed. He has a cosmetic permanent disability of 15% of the nose."

Also at clause 9 of his said affidavit, Dr. Kulunga states:

"9. He has a nasal deviation and stiffness of the nasal and finds difficulties in breathing and there is nasal speech. He has a cosmetic disability of 15% to his nose."

Counsel have provided written submissions which have been of considerable assistance to me. Mr. Kopunye, for the plaintiff, has suggested that the range of damages for pain and suffering would be from K8500 to K15,000 but in this case he submits that K13,000 would be reasonable. Mr. Peri, for the defendants suggests a figure somewhere between K4000 to K6500, so quite clearly Counsel are a fair way apart.

It is clear that there are not many past Papua New Guinea cases to refer to in relation to this type of injury and Counsel have referred to some of those cases. I should say that past cases are purely a guide to the Court and at times can be of assistance when arriving at a decision, however every case is different.

Mr. Kopunye has referred to, amongst others, Lus Minjuk v Independent State of Papua New Guinea [1988] PNGLR 302, where the plaintiff suffered injuries to the nose, hip and knee resulting in the deep fracture of the nose and lacerated knees with toe nail torn off and a continuing weakness in the knee with possibility of osteoarthritis in the knee. The Court awarded K15,000 in general damages.

I am of the view that that case was a more severe one than the present, needless to say I do note that it was thirteen year ago.

Mr. Kopunye also refers to a New South Wales case of Renard v. Coal & Allied Operation Pty. Ltd. 6/9/93 (NSW) Supreme Court, Hunt J. ALMD 4183. Mr. Kopunye sets it out, in his written submissions, as follows:

"Facial injuries ¾ grossly compound and communicated fracture of nose with lacerations ¾ Seriously disfiguring and sensitive scar on nose ¾ Difficulty in breathing assisted by painful surgery to septurm ¾ Fractured wrist healing with no deformity after open reduction ¾ Final surgery to nose justified postponed until conclusion of football playing ¾ No future economic loss ¾ Male aged twelve (eighteen at trial) ¾awarded of $15,500 damages (including $12,000 for pain and suffering)."

On today's figures $12,000 is equivalent to about K20,000. Again, it would seem to me, that that case was far more serious than the present, needless to say it is a useful guideline.

Mr. Peri relies heavily on the case of Pepa Mamando v Koi Goiya N1066 (1st June, 1992 at Mt. Hagen.) That was a matter where the plaintiff’s husband, in a rage, had bitten off the end of her nose. His Honour Mr. Justice Woods, in his Judgment referred to the husband "biting off the top of her nose." Paragraphs 3 & 4 read as follows:

"A medical report in 1986 stated that in the assault the front carilaginous part of the nose was bitten off. An operation was performed in which a new nose was made for her from her forehead and the result was very good. However a medical report done in 1990 noted that the tissue was dropping and partly blocking the nose and further surgical procedures were necessary to correct this. The doctor noted that there was 50 percent disability in terms of cosmetic appearance and function.

There is no real precedents on such an injury. I have been referred to some Australian cases, one where an award of $8,000 was given for fractured nasal bones where there was still some obstruction and scarring. Two other cases involved rather severe facial injuries. So I am left to assess a figure for minor cosmetic disfigurement and some blocking of the nose. The plaintiff is now divorced from her husband and aged about 40 years. She feels shy about the disfigurement to her nose although really it is not too unsightly. I will assess an amount of K4,000 for damages."

Will all respect to His Honour I am very much of the view that his award of damages was extremely low, in fact I am somewhat surprised that there was not an Appeal to the Supreme Court. Quite clearly the plaintiff in that case suffered very serious permanent loss and injury to her nose resulting in "50 percent disability in terms of cosmetic appearance and function." The present case is not nearly as severe to that of Pepa Mamando v Koi Goya (supra) and if I was to assess the present case on the basis of that one then I would arrive at a figure probably of about K1000, if that. To my mind the present case demands a much higher award than K1000. The plaintiff has suffered a permanent injury to his nose which has left him with nasal speech and some problems with his breathing. In fact his nose is noticeably permanently bent and because of that he suffers embarrassment and shame. His embarrassment should not be taken lightly as any disfigurement to a person’s face is extremely embarrassing for that person and even though the disfigurement may not appear so bad and unsightly to an observer, that is no consolation to the person with the disfigurement who quite often feels shy, ashamed and embarrassed and feels that many people are staring at him and making insulting comments. Some people with a facial disfigurement become quite withdrawn and have no joy in going out in public. The plaintiff in this case also suffers from shame and embarrassment and I also note that he spent four days to a week in hospital after the accident suffering considerable pain, requiring analgesics. The pain continued for some time afterward when he was attending the hospital as an outpatient. The cuts to the knee and chest have now healed but he will, for the rest of his life, have to live with the bent nose which causes breathing problems and effects his speech.

Taking everything into consideration I am of the view that the appropriate figure for general damages is K9500 and I so order.

Special Damages

I award K348.

Interest

I award interest at the rate of 8% per annum from the date that the Writ was filed up until today.

Therefore I order that there be Judgment for the plaintiff in the sum of K12,588 made up as following:

General damages for pain K 9,500-00

and suffering
Special damages K 348-00
Interest K 2,740-00
Total K12,588-00

I further order that the defendant is to pay the plaintiff’s costs, if not agreed then they are to be taxed.

Orders accordingly.
__________________________________________________________________________
Lawyers for the plaintiff, Kopunye Lawyers.
Lawyers for the defendant, Warner Shand.