N2066

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 937 of 1994

BETWEEN:

JERRY GORIA
Plaintiff

AND:

SERGEANT JEFEREY SIMEWA,
Police Officer
First Defendant

AND:

HENRY TOKAM, Commissioner for Police
Second Defendant

AND:

THE STATE
Third Defendant

Waigani	:	SHEEHAN, J.
1998	:	6 October
1999	:	21 December
2001	:	9 & 16 March

Claim for personal injury – assessment of damages.

Cases cited:
Kerr v MVIT [1979] PNGLR 351
Sika Opa v State [1987] PNGLR 469
Reading v MVIT [1988] PNGLR 266
Aum Repa v Boi Gerek & State [1991] PNGLR 424
Koimo v State [unreported] N1322.
Andale More & Anor v Henry Tokam & the State [1997 unreported] N1645.
Abel Tomba v The State [unreported April 1997].

Counsel:
Mr G. Koi for the Plaintiff
Solicitor General for the Defendants 

This matter has taken a regrettably long course to this present assessment of damages.

The Plaintiff, injured in 1991 commenced action for redress in 1994. Through a multiplicity of delays – changes of counsel and the like, the trial of the issues which commenced in 1996 went part heard due to unavailability of witnesses. The matter was brought to completion (on liability) in December 1999 with judgement for the Plaintiff with damages to be assessed.

The Plaintiff’s submissions on damages have long been before the Court and are uncontested. The defence has failed to offer any evidence or submissions in rebuttal. 

Therefore because there has been no reason or excuse offered for the lack of defence contentions on damages, within the time ordered by the Court for these to be filed, damages are therefore to be determined on the evidence and submissions of the Plaintiff. These comprise the affidavit of the Plaintiff Jerry Goria and medical evidence obtained since 1991 and updated by Dr Hein Damomira in his affidavit of 11th September 2000. That evidence is accepted and forms the basis of this assessment. 

The brief facts backgrounding this claim are that on the evening of 5th December 1991 while returning home to Erima in company of friends the Plaintiff then aged about 18 years was struck by a shot fired from a group of men standing drinking beer beside two motor vehicles at a junction on the Morata side of the government buildings at Waigani. It has been shown on the evidence that it was he first Defendant that fired shots at the Plaintiff and his friends. One shot struck the 

Plaintiff in the head and he fell unconscious. The Plaintiff was then unceremoniously loaded into the boot of the car of these men, (who turned out to be Police officers) and taken to the Port Moresby General Hospital. There he was admitted and treated for serious head injuries. 

Subsequent claims by the Police officers that the shots had been fired in the course of self defence was shown at trial not to be true. The Plaintiff was clearly shown to be entitled to recompense for the injuries he sustained.

Those injuries are recorded by Dr O. Jacob Specialist Surgeon, Port Moresby General Hospital who reported on 30 December 1993 that the Plaintiff Jerry Goria had been:

"shot with a gun through the back of the head. Confused and irritable at the time of admission. Semiconscious with sluggishly reacting pupils. Bullet in situ at the anterior aspect of the skull confirmed on X- Ray. Treatment was conservative only. Examined on 14th December 1993 showed left hemiplegia. Able to walk, talk and well orientated. X-ray showed bullet still in situ". 

Dr. Hein Danomira in his report of 14 February 1994 stated that: 

"when seen by me for assessment of permanent disability ….clinical observation reveals a gait that is wide swinging on the left side with a left arm in a position of fixed flexion. The gait is slow and tentative with inability to quickly manoeuvre quite difficult in a narrow space. Clinical examination reveals the following findings; gross wasting of left upper and lower limbs consistent with a hemiplegia (paralysis of the left side of the body) and disuse atrophy of the muscle (wasting from muscle power inactivity) ….the most significant finding however is that of an increased spasticity with very brisk reflexes consistent with upper motor neurone lesion (brain damage). … X-ray of the skull reveals the presence of the bullet as previously reported with a 3 cm by 2 ½ cm defect in the skull bone posteriorly over the right occipital region. ….."

Dr Danomira went on to give his opinion that: 

"Jerry Goria has become permanently incapacitated unable to enjoy life or to perform duties he used to do prior to the brain injury cause by a bullet on 5th December 1991. I am also of the opinion that he can now only perform desk clerical duties and that he has one hundred percent loss of function of both the upper and lower limbs on the left side for reform of heavy or skilful manual labour."

Dr Danomira updated those findings on 7th September 2000 confirming the earlier reports and adding that: 

"paralysis of cranial nerves, (as a result of the shooting) was evident as well as with a facial assymetry on expression and keratitis (inflamation of the left eye caused by his inability to completely close his left eye when asleep….. the risk of further damage to the left eye is quite high because of (this)……

….. with the bullet embidded at the base of the skull next to the sella tursica, making any attempts at surgical removal impossible."

The Plaintiff was around 18 years at the time of the shooting and had attained a formal education to grade 2. He was at the time in a de facto relationship. His partner, pregnant at that time, subsequently gave birth to a son while the Plaintiff was in hospital. His partner has now married another while the son is being raised by the maternal grandmother. 

Pain and Suffering and Loss of Amenities

In assessing damages for pain suffering and loss of amenities is plain that the from the time of injury and for at least 12 months thereafter Plaintiff suffered extensively. Equally clear is that Plaintiff has lost substantially the ability to take part in ordinary activities life or take advantage of the opportunities life can offer a person in full strength and health.

Prior to the shooting the Plaintiff had been employed as labourer with the Post Courier from 1987 to 1991 earning some K120.00 per fortnight. The Plaintiff also had a regular supplementary income as golf caddy during weekends where he earned approximately K30 to K50 per fortnight. He played gold himself in junior competitions and in season was playing rugby league.

He was confined to bed the whole of the year December 1991 to December 1992 unable to move without assistance. With paralysis of his jaws he could only eat soup and mashed food through tubes. Likewise he was unable to attend toilet facilities by himself. Although stabilised by December 1992 there had been no improvement of his condition and he was discharged to a relative’s house where he spent the whole of 1993 in the care of an aunt, and as before, confined to bed. 

It was not until 1994 that he was able to walk again with the aid of a stick. Since that time through to the present he has improved in stability such that he can now walk unaided, though this has been as a result of learning to cope with his disabilities rather than there being any improvement in them. 

The Plaintiff despite this improvement is unable to enjoy life as formerly nor can he support himself by employment as before. As submitted by his Counsel, the Plaintiff though now healthy and largely recovered from the injuries sustained has been left in practical terms, disabled from the loss of use of left lower and upper limbs. With one hundred percent disability of those limbs he can never enjoy life as a normal person and the activities he can do are limited and can be performed only slowly and with difficulty. He remains totally reliant on others. The injuries sustained prevent any form of heavy or skilful manual labour. He also suffers a risk of further damages to his left eye. 

I have been referred to and been assisted in this assessment decisions of Supreme and National Courts in 

Kerr v MVIT [1979] PNGLR 351
Sika Opa v State [1987] PNGLR 469
Reading v MVIT [1988] PNGLR 266
Aum Repa v Boi Gerek & State [1991] PNGLR 424

In those cases claimants suffering extensive pain, lengthy hospitalisation and disability were awarded damages ranging from K60.000 to K140,000.

As submitted for Plaintiff an award in this case should be reasonable but substantial, to compensate the pain suffering of being confined to bed 2 years and unable to walk for unaided 3 years. He has lost a possible life partner and (at least till now) ability and opportunity to support and care for his child. He is unable any longer to participation in sport. I consider K50,000 appropriate and justified under this head.

Economic Loss

Turning to economic loss the evidence is that the Plaintiff was earning some K120 per week as a labourer supplemented by fees earned as a golf caddy. I accept the submission that K120, a basic labouring wage is an appropriate figure by which to assess past and future losses. 

1) Past economic loss

From injury till commencement of this action, December 1991 to September 1999 is 8 years 9 moths or 227 pay periods. 227 times K120 calculates out at K27,240.00 and this sum is awarded as an appropriate sum for past loss. 

2) Future income loss

The Plaintiff is now 27 years of age. It was submitted that the Plaintiffs life expectancy is not effected by this injury and damages to age 60 are sought. I am not satisfied that the medical evidence supports the contention that the Plaintiffs life expectancy is unaffected. Certainly with the physical disabilities sustained there is reason to suppose his expected working life will be shortened. I believe a fair estimate of his working life will be to age 50 years. This provides a calculation for future economic loss of 23 years at K120 per fortnight, that is 23 years at K2,120 per annum, a sum of K71,760. That sum together with the K27,200 past losses totals K99,000, which is rounded off to K100,000. Having already reduced the expected working life substantially no deduction need be made for contingencies.

Exemplary Damages/Aggravated Damages

The Plaintiff claims an award in exemplary damages and there is ample precedent as well as constitutional authority for such awards (Koimo v State [unreported] N1322). However because such awards are primarily punitive rather than compensatory and have as well a deterrent element to them, the Courts have shown reluctance to award exemplary damages in those cases where the State’s vicarious liability occurs only by way of the fact that the perpetrator of the tort is a servant of the State. Andale More & Anor v Henry Tokam & the State [1997 unreported] N1645. Abel Tomba v The State [unreported April 1997]. It is not always the case that the vicarious liability which renders an employer liable in general damages for the action of a servant (e.g. a simple traffic accident caused by negligence) also render the employer liable in exemplary damages for torts when the essence of the actions attracting punitive damages are largely actions of the individual alone. 

As is the case here, the assault by a drunken police officer even though occurring during the course of employment is in my view such a case. Punitive or deterrent damages are more appropriately awarded against the perpetrator rather than the employer. I consider therefore that a sum of K10,000 in exemplary damages should be awarded against the 1st Defendant. 

Nonetheless where exemplary damages are not be appropriately chargeable to the employer there remains the discretion in the Court to award aggravated damages. These remain compensatory and can be awarded where the manner of the commission of the tort and circumstances in which the injury has been caused, amount to an assault or an affront to the injured party’s personal dignity or pride, and warrant his being compensated for.

In this case the wholly unjustified assault on the Plaintiff constitutes in my view an aggravating circumstance, an affront to the Plaintiffs dignity and rights as a citizen for which an award should be made. Accordingly I award K20,000 in aggravated damages.

In summary the damages assessed are: 

Pain and Suffering/loss of Amenities				 50,000
Economic Loss						 100,000
Aggravated damages						 20,000
Exemplary Damages against the
1st Defendant							 10,000-

						Total:		K180,000

The Plaintiff is entitled to the statutory interest of 8% from commencement of the writ to judgement, and his costs.

Lawyer for the Plaintiff	-	Yapao Lawyers
Lawyer for the Defendants	-	Solicitor General