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Iari v Motor Vehicles Insurance Ltd [2004] PGNC 4; N2841 (15 September 2004)

N2841

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]

WS 673 OF 2003

BETWEEN:

CECILIA IARI
-Plaintiff-

AND:

MOTOR VEHICLES INSURANCE LTD
-Defendant-

WAIGANI : INJIA, DCJ
2004 : May 5th, 19th
June 7th
July 12th
September 15th

CIVIL – Damages – Personal injury – Adult female - Pelvic injuries – 15% to 20% permanent disability in efficient use of lower limb – Awarded K18,000.00 for general damages – Declined to increase award due to inflation and devaluation of Kina.

Cases cited in the judgment:
Angogo Gambia v The State N1502
Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557
Palga v MVIT [1991] PNGLR 446
Rom Tinpul v Moses Yere [1996] PNGLR 585.

Counsel:
R. Uware for the Plaintiff
V. Mirupasi for the Defendant

15th September 2004

INJIA, DCJ: Following the Defendant’s consent on the issue of liability in favour of the Plaintiff in the course of the trial, I now assess damages.

Before the trial, the parties entered into negotiations to reach a compromise on damages but those negotiations were unsuccessful. Consequently, on 4 June 2004, the Defendant’s filed a security to pay into Court the sum of K30,000.

The Plaintiff’s action is for damages for personal injuries sustained in a motor vehicle accident which occurred on 30th June 2000 along the Magi Highway, Central Province. The Plaintiff, who was a passenger in one of the motor vehicles, sustained injuries to her pelvis.

The evidence for the Plaintiff and the Defendant are as those set out by Counsel for the parties in their written submissions. Medical evidence provided by both parties feature prominently in the evidence. On the evidence, there is no issue taken that the Plaintiff sustained a fractured pelvis which healed well. There is issue taken as to the extent of permanent disabilities. Dr. Amana who filed an affidavit and gave sworn evidence, examined her first on 14 July 2001 when she attended at the Port Moresby General Hospital. After examining her, he assessed permanent disability at "80% of the efficient usage of her left leg and will not have normal vaginal delivery". His findings are set out in his report dated 20 September 2001. On 19 March 2003, he issued his final report after examining her. He stated that "she has lost 80% of quality life due osteoarthritis following the MVA."

Dr. Ikau Kevau’s affidavit sworn on 23 April 2004 was tendered by the Defendant on 4 March 2004. He confirmed the fractures but found normal joint movements and there was no shortening of limbs. He assessed 15 – 20% of "loss of efficient use of her left lower limb from the accident."

Permanent Disability

It is not contended that Dr. Kevau is an Orthopaedic surgeon and a bone specialist whereas Dr. Amana is not. He is a general medical practitioner.

The Plaintiff’s counsel in his submissions did not seem to be pressing for Dr. Amana’s assessment of permanent disability but appeared to rely upon Dr. Kevau’s assessment (see p.4 of his submissions). Mr. Mirupasi submits Dr Amana is not an orthopaedic specialist and his assessment is exaggerated and not reflected by the Plaintiff’s physical condition. He submitted Dr. Kevau’s assessment should be accepted.

I accept Mr. Mirupasi’s submission. Dr. Amana’s assessment appears unclear as to whether he was speaking of assessment of physical disability arising from injuries or disability generally in her enjoyment of life.

General Damages

In relation to quantum of damages for general damages, both parties do not significantly differ. Mr. Uware submits a reasonable amount for general damages for pain and suffering and loss of enjoyment of life is K18,000.00. Mr. Mirupasi submits a reasonable amount is K17,000 – 21,000. I accept the Plaintiff’s submission the figures she seeks is within the range suggested by the Defendant. I award K18,000 for general damages.

Mr. Uware then submits the K18,000 should be adjusted upwards to reflect the current economic climate due to inflation and devaluation of the Kina against major overseas currencies. He submits the amount should be adjusted between K35,000 – K40,000 which is over 100% of the K18,000. He cites Angogo Gambia v The State N1502 as authority for this proposition. Mr. Mirupasi submits there is no proper basis for an upward adjustment.

In my view, I am not persuaded that the award should be increased by over 100% due to inflation. I accept that awards of general damages over the years have generally increased due to a number of factors including inflation and this is generally reflected in the award for general damages, but I do not think it is proper to allocate a specific amount or percentage increase for inflation per se.

In my view, the sum of K18,000 in the present case is reasonable and sufficient. This amount also falls within the range of awards for the type of injuries and permanent disabilities of the type the Plaintiff suffered in this case. The case of Palga v MVIT [1991] PNGLR 446 has been used by both parties as a basis for suggesting the sum of K18,000 for general damages. In Palga’s case however the Plaintiff sustained more serious multiple injuries, some of which required extensive surgery, than the present Plaintiff. Using Palga as a guide, the Plaintiff in the present case would received less than K18,000. I consider the sum of K18,000 in a way taken into account the increase in awards over the years.

Economic Loss

The Plaintiff claims K18,228 for global economic loss under the principles set out in Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557 and Rom Tinpul v Moses Yere [1996] PNGLR 585. The Defendant submits the Plaintiff is entitled to a global sum for economic loss which he submits should be K5,000.

The Plaintiff in the present case is a middle-aged educated woman of good standing in the community. At one stage she stood for election for the Oro Provincial Seat in the National Elections. At present she is a volunteer worker for the CRC Ministry at Lae. She is not earning an income. There is no other evidence of her previous employment history.

There is evidence of her involvement in running a PMV and Poultry business in NCD with her elder brother Abraham Sosori, in Port Moresby in 1995 – 1998 and up to 2000 but there is no evidence that the Plaintiff herself was directly involved in the running of these businesses. In any case, these businesses ceased to operate in 1998 and 2000, sometime before the Plaintiff sustained the injuries or shortly after. I am unable to find that she engaged in these economic activities herself and therefore suffered business income loss.

In these circumstances, it is difficult to assess a specific amount for economic loss. Even assessment of an appropriate sum for global economic loss is impractical given the lack of evidence of her employment income, business income and other income earning activities. In the circumstances, I am prepared to accept the figure proposed by the Defendant, to compensate her for whatever income earning activities she may be restricted in performing in the future, due to her disabilities. I award K5,000 for global economic loss.

I allow K365.00 for special damages as established by the evidence.

I award interest at 4% on the past component of general damages and economic loss from date of commencement of proceedings (21/05/03) to date of judgment. I apportion past general damages and economic loss at around K10,000. The interest payable is K980.00.

In summary, I award total damages in the sum of K24,345.00 comprised as follows:

General Damages - K18,000.00
Special Damages - K 365.00
Economic Loss - K 5,000.00
Interest - K 980.00

Total - K24,345.00

Pursuant to the Security Deposit filed by the Defendant, I award costs of the proceedings to the Defendant.
____________________________________________________________

Lawyer for the Plaintiff : Public Solicitor
Lawyer for the Defendant : Mirupasi Lawyers