David v Marus [2011] PGNC 242; N4912 (16 April 2011)

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PERSONAL INJURIES – Amputation of the right hand – 100% Permanent loss of right hand – Claim for Economic loss – Method of calculating economic loss – Male aged twenty seven – University Student – Schooling affected – Prospects of getting job completely affected – General damages award of K50,000.00

The plaintiff, a part time University student here at the Kimbe University Centre sustained a very serious cut to his right-hand when the defendant used a very sharp bush knife and swung at the plaintiff inflicting the injury. The cut was so serious that the plaintiff's right-hand had to be amputated just below the wrist. Medical evidence revealed that the plaintiff will now suffer a 100% permanent loss to the use of his right-hand. In a claim for assessment of damages:

1. KAWI J: This is a trial for Assessment of Damages, liability having been determined through a full trial conducted before Cannings J on the 22nd November 2007.
Facts

2. The brief facts are that the defendant, Denis Marus swung a bush knife at the plaintiff, cutting his wrist so badly that his hand had to be amputated leaving behind only a stump. The plaintiff brought a civil action against the defendant, based on the tort of trespass to a person. The defendant conceded that he inflicted the injury on the plaintiff and that he was acting intentionally, but argued that he acted in self defence as the plaintiff was himself armed with a bush knife and staged an unprovoked attack on him. A trial was held to determine whether the defendant was liable. See Michael David –v– Denis Marus (2008) N 3374.

3. The court found that the plaintiff had discharged the burden of proof and the court concluded that the defendant was the aggressor and he acted unlawfully. The plaintiff had indeed proved that the defendant was indeed liable. This matter came before me for assessment of damages. The plaintiff filed and relied upon his sworn affidavit dated 2nd August 2010 in this trial for assessment of damages. Annexed to this affidavit are two medical reports, one from Dr Moi Seneka and the other from Dr Perista Mamadi dated 28 July 2008.

5. Dr Moi Seneka first attended to the plaintiff on the 1st December 2004. He stated that the plaintiff had his right hand amputated at the writs level and he required an artificial hand for his function. He stated that the forearm muscles are still intact and functioned without atrophy. Dr Perista Mamadi who examined the plaintiff on the 20th June 2008, confirmed that the plaintiff:

6. A claim for general damages is intended to compensate the plaintiff for the pain and suffering and loss of amenities, distress, humiliation and inconvenience caused by the actions of the tortfeasor. Apart from suffering bodily injuries, he has to be compensated also for the shock and distress caused by the incident. It must be made clear from the outset, that there cannot be any claims for pain and suffering and a separate claim for general damages. Both are one and the same.

7. The purpose of an award for general damages is to compensate a person that is to put the person as far as possible in monetary terms in the same position that they would have been in, but for the accident which resulted in him sustaining bodily injuries. Consequently an award of general damages is not intended to be a reward nor a penalty against the party responsible – See Martha Limitopa and Poti Hiringe –v– The State [1988-89] PNGLR 364.

8. In his submission on damages, learned counsel for the plaintiff, Mr Kari, submitted that a global award of K150,000.00 should be made, covering general damages as well as past economic loss and future economic loss. He also claimed interests to be paid at a rate of 8% pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act. Finally he submitted that costs of these proceedings should be awarded to the plaintiff. The defendant Mr Marus, who appeared in person to defend himself submitted that he is unemployed. He argued that being unemployed he is not in a position to pay the plaintiff damages if the court were to make any award for damages. He asked the court to consider his plight and make a lower award for damages. In computing an amount for general damages, I will look to previous awards by the National Court to be used as a guide

9. The first case I look to is the case of Kaka Kopun –v– The State [1980] PNGLR 557. In that case the court awarded K18,000.00 in general damages and K7,000.00 as economic loss to the plaintiff who was a village subsistence farmer, coffee grower and vegetable grower. There, the plaintiff suffered a fractured right forearm (user arm) and wrist resulting in an inability to grip and grasp objects, clear land, chop wood and he was fit for light workings only.

10. In Pangis Toea –v– MVIT & The State [1986] PNGLR 294, the court awarded K35,000.00 in general damages to the plaintiff who suffered fractures to his left arm, humerus, wrist and to his femur hip resulting in the shortening of his left arm. Permanent functional disability was assessed at 70%.

11. In George Pep –v–Bakri Yamba & The State [1987] PNGLR 485, the court awarded K15,000.00 in general damages and K6,000.00 for future economic loss for a reduction in village garden skills. A further amount of K12,000.00 for future economic loss from possible employment was also awarded. In that case the plaintiff suffered fractures to his left arm bones which took a long time to heal and which required a bone graft. All these disabilities resulted in a deformed arm and a 50% permanent disability of the use of his arm.

12. In Michael Kunumb –v– The State (2008) N3480, the plaintiff sustained bodily injuries when a footbridge constructed by the Department of Works collapsed under the sheer weight of the people who were walking across it. The plaintiff sustained injuries to his 2nd, 3rd and 4th fingers of his right hand which were severely damaged by the weight of the iron and crushed. As a result these three fingers were amputated at the distal phalange for the second finger and the middle phalange for the 3rd and 4th fingers. General damages of K24,000.00 was awarded and K11,000.00 for economic loss.

13. In Timson Noki –v–Fraser and Barclay Brothers [1991] PNGLR 260, the plaintiff was an unskilled labourer who had his right hand crushed and he suffered full impairment. He was awarded K25,000.00 in general damages.

14. In Bepi Wan Ambon –v– MVIT (1991) N1116, the plaintiff, an 18 year old student completely lost her right hand in a vehicle accident. She was awarded K35,000.00 in general damages.

15. What the above authorities show is that the courts made awards for general damages ranging from K12,000.00 to K35,000.00 for serious hand injuries where permanent injuries to the hand were assessed as high as 50% or 70%. In my view the injuries here is much more serious than all the injuries suffered by the various plaintiffs in the cases cited above.

16. Unlike those authorities cited above, the plaintiff in this case, suffered much more serious injuries. He had his right hand amputated as a result of which he is assessed to have a 100% permanent loss of his right hand. Taking into account the range of awards from the comparable verdicts, and also the effects of inflation on an award of damages, I assess general damages for pain and suffering and loss off amenities at K50,000.00.

17. The plaintiff did not produce any evidence to show that he is now participating actively in the cash economy. Neither did he produce any figures in monetary terms of his actual losses.

18. Despite this lack of evidence, I will accept that the permanent loss of a hand will subsequently see a reduction in the plaintiff's contribution, participation and work value in the cash economy and labour markets in subsequent years. This reduction in the plaintiff's participation in the cash economy must be adequately compensated by an appropriate award for loss of earning capacity or future economic loss.

19. Bredmeyer J in Nali Matabe –v–The State 1988] PNGLR 309 was confronted with a situation where a subsistence farmer sustained serious bodily injuries including a fractured left collarbone. He was assessed as having a 15% permanent loss of the efficient use of the left arm above the elbow for doing heavy manual labour. He gave evidence of being a subsistence farmer who would normally sell his garden produce every week to earn some money for himself and his family. But he could not give any figures of how much he was earning from those weekly sales and his weekly losses. Bredmeyer J considered that there were three ways of assessing economic loss to a subsistence farmer.

20. The first way of assessing economic loss is to assess production before and after the accident and the value of the drop in production of so much a week is multiplied by the anticipated years of his future working years. The 3 percent discount tables are then used to capitalize this figure, then a reduction is made for the contingencies of life.

21. The second method of assessing economic loss is when evidence is very hazy and sketchy as to the amounts the plaintiff may have earned from gardening. In those circumstances, the Judge has to do the best he can to award a global sum for economic loss.

22. Miles J in Kaka Kopun –v– The State [1980] PNGLR 557 at 564 made the following comments, which in my view sums up the second method of assessing economic loss. His Honour in that case stated:

"On the calculation of loss of earning capacity, it will often be the case that the court will have very little evidence to work upon where the plaintiff is engaged in gardening or hunting with little participation in the cash economy. In the present case, and others on which I have reserved judgment, there is some evidence of a general nature but in addition to acting on that evidence, I think it is appropriate to adopt the approach of Mahoney J in Baird –v– Roberts [1977] 2 NSWLR 389 at 398 which was approved in Kerr's case [Kerr –v– MVIT] [1979] PNGLR 251 at 251, namely that once a reduction of economic capacity is established, even if there is no evidence as to pre and post accident possible earnings, a trial Judge must, in general, assess some compensation in this regard, he cannot ignore the loss".

23. The third method of assessing economic loss is what Bredmeyer J pioneered in Aundak Kupil –v– The State [1983] PNGLR 350. The plaintiff in that case grew vegetables plus cash crops and had two wives. He was rendered a paraplegic in a vehicle accident and evidence was produced in court of the cost of a replacement labourer. What the plaintiff lost was his labour and the court found that in the Minj Valley where he lived, it is very common to hire someone from a poor province to do the labouring work. Evidence was produced in court that the going rate for one of these workers was about K10.00 a week. A labour can be hired to do all the work that the injured plaintiff used to do and the labourer is also given a piece of land for his own subsistence crops. The court stated that all over PNG, nationals do employ labourers from poorer Provinces to help with their agricultural work and they employ them at much cheaper rates than the award rates for plantation labourers. In this third method, there is no loss of production. The man's household, including any paid labourer, produces the same as before the accident.

24. A variation of the third method is where the injured plaintiff does not get a hired labourer to help, but gets a wantok or a relative from his home village to come and help. The helper works on the land for the household and in turn receives food and pocket money now and then. Usually not a regular sum per week or fortnight but an occasional K5, K10 or K20.00 from the sale of cash crops, and he gets help with traditional obligations, for example a pig for a bride price payment or help in paying a court fine.

25. In that case the court found that there was no loss of production. Consequently it warded K3,000.00 for economic loss.

26. In the present case, the plaintiff produced evidence that he was a student at the Kimbe University Center. With no figures to work from I will consider and adopt the second method of assessing economic loss.

27. I will compute past economic loss from June 2002 to March 2011. This gives us 8 years and 8 months. In absence of proper figures to work from I will apply the second method of assessing economic loss as discussed by Bredmeyer J in Nali Matabe's case and award a reasonable sum for his past losses. Doing the best I can, I make a global award of K6,000.00 for past economic losses.

28. Again it is very difficult to arrive at a precise mathematical figure for future economic loss when the plaintiff failed to provide evidence of his weekly losses in monetary terms.

29. Again I will adopt the second method of assessing economic losses as discussed by Bremeyer J in Nali Matabe's case. Taking into account the plaintiff's diminished prospects of gaining meaningful employment to participate in the modern cash economy and the general inflation and its effect on the national economy, I will assess K40,000.00 as future losses.

30. I will make a global award for interests at the rate of 4%. I will therefore award K2,000.00 as the interests payable.

31. For future losses, I will award interests at a rate of 8%. I will award K4,000.00 as interests on future economic losses.

32. The plaintiff claims K8,100.00, being costs expanded for legal fees, medical expenses, and transport as well as other miscellaneous expenses. This category of damages must be strictly proven with the production of relevant invoices and receipts to prove the payments made.

33. Here the plaintiff could not produce any receipts and invoices to prove that the payments were indeed made. For this reason, I will not make an award under this head.

(a) General Damages	-	K 50,000.00
(b) Economic Loss	-
(i) Past Economic Loss (ii) Future Economic Loss	-	K 6,000.00 K 40,000.00
(c) Interests (i) Interests on past economic loss (ii) Future economic loss	-	K 2,000.00 K 4,000.00
TOTAL PAYABLE	:	K102,000.00

35. I make an order that the defendant pays K102,000.00 to the plaintiff. In addition costs of this proceeding is awarded to the plaintiff.

National Court of Papua New Guinea

David v Marus [2011] PGNC 242; N4912 (16 April 2011)