National Court of Papua New Guinea

The defendant did not dispute using the beer bottle and admitted what had occurred. He maintained the plaintifintiff had assaulted him first and he retaliated by hitting the plaintiff with the beer bottle. He admitted the offercompecompensation and further admitted that he had been dri for three days and three nree nights. This was supported by two of his witnesses.

In determining the issue of negligenc liability, I accept the evhe evidence of the plaintiff. Having obsethe demeanour oour of all the witnesses in this trial, I cor that the plaintiff was moas more impressive than the defendant and his witnesses. The defendant an three wtie wtinesses were evasive and each said the sthe same thing. I was not impressed at alu about their demeanour and I consider that they were not wses of truth.

There are two reasons I do not accept cept their evidence. Firstly, by their owissionssions, they had beenking for three days and thrd three nights up to and including 16th September, 1992. Obviously, and I no doubt oubt at all that, were adversely affected by alcohol. I consider that that their minds and judgment including vision were severely impaired throntoxication that they were not in a better position to reca recall clearly what had transpired.

Secondly, this incident occurrlittle over three and half half years ago prior to trial, yet they said on oath they clearly recall what had occurred. As I sailier, they all sail said the same things on oath and I consider that they had rehearsed what they were going to say in Court.&#1he defendant in particular, was very evasive, he exhibited an angry mood in the witness boxs box, he spoke well in examination in chief, however, during cross examination, one could hardly hear him. In my view, he had coachs his witnesses in what to say in Court. I therefore reject hidencedence including that of his witnesses.

I find as facts the following: Firstly, efendant pulled the plaintiff by the shirt and pushed him.&him. The tiff did not provoke toke the defendant but the defendant had provoked the plaintiff by assaulting him, therefore the plaintiff retaliated by slapping the defendant’s mouth. Approxly, hn hour later, ter, the, the defendant smashed a half full beer bottle onto the plaintiff’s right eye thereby causing injuro that eye. The defendant inflithe inje injuries which consequently resulted in totaltotal blindness.

Did the plaintiff act negligently as claimed by the defendant or was the defendant negligent? Did the action of taintiffntiff amount to contributory negligence? In the course onsel’8217;s address, I raised the issue of contributory negligence since it was obvioe defendant had raised provocation in his evidence and I qu I queried whether the defendant was raising contributory negligence. Cousubmitted that contributributory negligence is not a complete defence, but a statutory defence which only goes to assessment of es, refer: s. 40(1), Wrongs (Miscellaneous Provisions) Act Ch. 297. Counsel further sher submitted that the facts of this case did not give rise to contributory negligence and he referred to the meaning of fault and contributory negligence which I wish toess, if only, briefly.

Section 39 of Wrongs (Miscellscellaneous Provisions) Act Ch. 297 defines fault as, “negligence, breach of statutory duty or other act or ommission that gives rise to a liability in tort or would...give rise to the defence of contributory negligence.” In Brown v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 409 at 416, Bredmeyer, AJ said, “contributory negligence is a man’s carelessness in looking after his own safety”.

Without discussin evidence in any greater deer detail, let me say this, in my view, neither the plaintiff was at fault nor did he contribute to the injuries he sustained by his own carelessness. The evidence ear, the defe defendant had nothing to do with the commotion. H an uninvited guest and aand an intruder, who assaulted the plaintiff without any provocation by the plaintiff. The piff werefostifiedifiedified in retaliating against the defendant’s assault. What trat transpired lahen then was completely a nrn of events. The defendant’s ing hing of a half full bottle of beer on the plae plaintiff’s right eye, approximatelf an hour later, was obviously an intended act by the defe defendant which, in my opinion, amounted to fault as defined above.

It is my judgment therefore that the plaintiff cannot be said to have contributed to his injuries, hence, the question of contributory negligence does not apply in this case. The plaintiff ot at fault.ault. The defendantat fault ther therefore, he must be held liable for damages for negligence to the plaintiff. Hiduct was unlawful and nend negligent and accordingly, d mak offers for compecompensation to the plaintiff which were rere rejected. The offers, in my view, amounted to admission of liabi

As I have found thed the defendant liable, I need to assess the damages. In assessing damagewish tosh to refer to a numf cases on comparable verdicts on eye injury as a ready refy reference for both the Court and lawyers. I set out these cases br hereunder:

1. ҈& R60; Ro0; Rouney Aney Aura v Papuan Airline Transport Ltd [1963] PNGLR 272. A 2r old trainee telephech technician earning 3 pounds a week was injured when flying glass cuss cut upper part of his face and portion of it cut the c of the left eye. Vision diminiby more than than 50%. Damages ed 1,150 pou0 poun pounds - 7 June, 1963.

2. ;ټ Jacquelcqueline Kene Kennedy v Jerry Nalau & State [1981] PNGLR 543. Female child, 8 yrs 8 m whhs who sud facnjurisulting in permanent facial scarring requiring future cosmetic surgery and aand a scar scarred ered eye in a motor vehicle accident in Feb, 1977. General damages - K10,60 i.00 inclusive of fuof future economic loss and future medical expenses. Total award includinerest rest and special damages, K12,736.00 - 22nd January, 1981.

3. ҈ Takie Murray v NoKi NoKinamur [1983] PNGLR 446. Married woman who suffereu injury to left eye as a result oult of assault. Eye surgicallovd artal eyel eyerted0; Created irritation, disfigisfiguremeurement annt and psyd psychological distress. General damages - K2.00 - 00 - 26th August, 198>

4. Jane Rohrlach vachan Evicaelical Lutheran Church of New Guinea Property Trust [1985] PNGL. Fifteen year old student blinded in one eye by a st a staple fired by a fellow student. Seent figure of K52,452.8652.86 approved by Court. Afteuction forl costs and and medical expenses, the balance of K47,089.39 was invested for andr and on behalf of the infant - 17th May,

6. ;ټ M60; Me Badu Baduk v The State & Ors [1993] PNGLR 250. Nine year old, Grade 4 pupil at Waiganaigani Community School on 2nd February, 1had ap poilead pencil thrown at her right eye poke poking iing it and causing severe injuries consequnsequently resulting in the removal of the 100% loss of vision sion of right eye. False eye inserted.&#1enerGeneral damages - K35,000.00 plus K500.00 special damages, totalling K35,000.00, - 1st July, 1993.

7. ҈& S60; Dale Dagu v Tu v The State (Unreported) N1316.&#Thirty-four year old securiecurity officer sustained injuries to his knee, head and face including his right eye. He suffered eritathich oped tred traumataumatic caic cataract of the right eye consequently reducing his vision dramatically. The cataract was removedplaintiff suffered a 90 to 95% visual incapacity which represented near blindness. Da0; Damages for and suffesuffering and lossmenities - K20,000.00, interest K1,390.47 and economic loss K2,000.00, totalling K23,390.4790.47 - 5th April, 1995.

8. &##160;; Jack Lack Lundu Yalao v Motor Vehicles Iles Insurance (PNG) Trust (Unreported) N1488. Securfficer suffenjuries ties to his right eye as a result of motor vehicle accident. 95% visual distyility.&#16. General damages -000.00 - 00 - 28th Jun96.

The facts of these cases differed and general daal damages awarded varied due to the different nature and extent of injuri each. In the prhe present case, the plaintiff is completepletely blind in the right eye. Dr Jambi a, the Opthamologmology Registrar at Port Moresby General Hospital, who examined the plaintiff reported that, the plaintiff had lacerations of the right cornea screen of the eye). He could no with the rightright eght eye so repairs of the laceration was done. The plaintiff was discharged on 21st September, 1992. On w on 25th September, 19r, 1992, no improvement to the eye was discovered and the plaintiff onfirmed blind on the right eye with no perception of light or vision. His eye is pros prone to recurrent redness and it will progressively get smaller. He has a tloss of vision (ion (100%) of the right eye. In layman’s the plae plaintiff islly blind on the right eye.

I have adverted to compacomparative damages awarded by the National Court since 1963 and it is obvious over the years, the quantum of damages have increased.&#160 Of e, it is impossible to e to put a monetary value on an injured part of the human body.

In this case, the plaintiff has lost 100% use of right eye. He islly blind, and as tims timees by, his eye would get smet smaller. His injury is permanent. Humes are very precious, fus, for without one or both, onnot appreciate the outside world and I wish to quote Smithemithers, J in Rouney Aura v Papuan Airline Transport Ltd (supra) at 274 why broSalika, J also quso quoted oted in Sale Dagu v The State:

“It must never be forgotten that each eye is a precious possession - precious because of its capacity, and as one of man’s links with the outside world, an essential part of the man’s body.”

Mr Kambure, counsel for the plaintiff has not suggested any figure, however, the awards referred to in the cases cited are of some assistance to this Court in assessing damages. Times have chaover the yeae years and with constant inflation, awards of general damages must, I believe, be at par with the rising costs of inflation. I consider that r andonablonable amount of damages for pain and suffering aing and loss of amenities would be K35,000.00. Accordingly, I award um of K35,000.00 as general damages and order that the defendant pays the amount to the plae plaintiff.

There is no evidence the plaintiff was employed at the time of injury. I consider thee that he ishe is neit neither entitled to economic loss nor interest. Although, there is evidehae that the plaintiff was admitted to the hospital for a few days, there is no evidence ofmedical expenses therefore,fore, I make no award as to special damages.

In conclusion, damages for pain and suffering and loss of amenities is assessed at K35,000.00. I order that the defedays pays the plaintiff’s costs of the proceedings.

Lawyer for Plaintiff: Habuka Lawyers

Defendant in Person