N2511

PAPUA NEW GUINEA

[In the National Court of Justice]

W.S. 879 OF 1995

Between:

Mewori Patrick Paobi
by his next friend and father Patrick Paobi
-Plaintiff

And:

PNG Electricity Commission
-First Defendant

And:

The Board of Governors of the Bugandi Secondary School
Second Defendant

Lae: Injia, DCJ
2003: October 10th
2004: March 23rd

Damages – Personal injury – Nervous shock from electrocution by fractured live electricity wire - Nervous shock from near death experience upon witnessing instant death of friend from same electrocution - No evidence of accompanying physical injury – Physiological injuries resulting from nervous shock - Economic loss - Young High School student aged 14 at time of injury and aged 23 at time of trial – No evidence of employment – No evidence of continuing education – No evidence of risk of loss of particular employment - Awarded K20,000.00 for general damages and K21,498.00 for future economic loss - Awarded total damages of K49,198.00 inclusive of interest plus cost – Amount of damages and costs apportioned equally between two defend

Cases cited:
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310
Baduk v PNG [1993] PNGLR 250 
Casswell v National Parks Board [1987] PNGLR 458.
Coady v. MVIT [1987] PNGLR 55 at 57
Colbert v PNG [1988-89] PNGLR 590
Darvil v MVIT [1980] PNGLR 548
Hinz Berry [1970]
Hutchinton v Swanel [1966] ACR 1021.
Jacquahire Kennedy v The State & Anor [1981] PNGLR 543,
Kokonas Kandapak v The State [1980] PNGLR 573
Make Kawe v Thomas Kundip [1986] PNGLR 279
Moeliker v A Reyrolle & Co. Ltd [1977] ALL ER 9 at 15 – 17
MVIT v. Pupune [1993] PNGLR 370 at 375
Ron Tinpul v. Moses Yere and Mt. Hagen Golf Club [1998] PNGLR 582
Susanna Undapomaina v Talair Pty Ltd [1981] PNGLR 557 at page 563
Susan Indupomaina v Talair [1981] PNGLR 559
Taylor v Bistol Omnibus Co. Ltd [1975] 2 ALL ER 1107
Taylor v Bristol Omnibus Co. Ltd [1975] 1 WLR 1054
Yapi Koka v MVIT [1995] PNGLR 249

Counsel:
P Ousi for the Plaintiff
No appearance for the First Defendant.
K Gamoga for the Second Defendant 

27th March, 2004

Injia, DCJ: This is an ex parte trial on assessment of damages following entry of default judgment on 10 September 1996, "against the First Defendant and Second Defendant jointly and severally … items for assessment of damages". Even though both defendants were aware of the trial date, only the Second Defendant took interest in the proceedings and contested damages. The Second Defendant was served Notice of Trial and various affidavits but failed to attend.

The trial took place on 6 June 2001. The Court received evidence from the plaintiff in the form of an affidavit of the plaintiff’s father sworn on 23 September 1999 (Exhibit "A"), affidavit of the plaintiff sworn on 23/9/99 (Exhibit "B"), and affidavit of Dr Brother Andrew sworn on 29/10/00 (Exhibit "C"). Dr. Andrew was cross-examined on his affidavit.

The First Defendant tendered the affidavit of Mr. Alois Pumai sworn on 6/6/01 (Exhibit "D") and he was cross-examined on his affidavit. 

The matter was then adjourned for written submissions to be filed by 12/6/01 and oral presentation on 13/6/01. The plaintiff filed his original submissions on 13/6/01 and supplementary submissions on 16/7/01. The First Defendant filed its submission on 16/7/01. Since then, a date could not be fixed for oral arguments due to a number of intervening factors. Oral submissions were made on 18 and 22 September 2003. 

The plaintiff claims damages for nervous shock caused by electrocution when he stepped on a live power line at Bugandi school premises in 1994. He seeks damages in the total sum of K92,500. He claims K50,000 for general damages, K20,000 for economic loss, K17,500 for special damages and K5,000 for exemplary damages. The calculations are set out in Mr. Ousi’s written submissions. The First Defendant concedes the plaintiff is entitled to damages but says a reasonable award for damages is K3,000 and K992 for special damages. It says no damages should be awarded for economic loss and exemplary damages. The calculations are set out in Mr. B. Ovia’s written submissions. Mr. Gamoga who presented Mr. Ovia’s written submissions initially advanced these figures. My initial response to the figures suggested by Mr. Gamoga was that the figures in all departments were quite low, given the evidence before the Court of the extent of the injuries sustained by the plaintiff and evidence of resultant impairment of physiological and intellectual capacity. Mr. Gamoga’s response in that regard was positive and this allowed me to openly discuss the appropriate figures in all categories except exemplary damages, which I intimated to counsel, may not be warranted.

I make the following findings of fact on the evidence before me and the uncontested pleading of facts in the Statement of Claim. The accident occurred on 2/9/94 at about 3.30p.m at the Bugandi High School premises where he was attending school. At that time he was fourteen (14) years old. He was walking in the school compound with a fellow student named John Eigavara. Whilst they were walking, they stepped on a shallow pool of rain water, which was contaminated by electrical current from live wire which had fallen down from a large raintree. They were both electrocuted. His friend was killed instantly. The plaintiff was pulled out from a pool of water as he lay in shock. They were both taken to the hospital on the same day where the plaintiff was checked at the outpatient section and discharged. Between 2/9/94 to 4 March 1999, the plaintiff underwent various medical and psychiatric examination, the details of which I discuss below. 

Evidence of medical attention received between 2/9/94 – 4/3/99 in summary is as follows:-

•	2/9/94 – Treated at out-patient clinic. Clinically examined and discharged on the same day. No medical records available showing evidence of physical injuries resulting from nervous shock. 

•	Seven weeks of medication and observation at Angau General Hospital. No medical evidence. 

•	8/11/94, Referred by Dr. Sao of Angau Hospital, to Dr Philip Kama of Adventist Health Centre for "post-trauma depression counselling"? No medical treatment for any physical injuries.

•	2/12/94 – Referred by Dr. Philip Kama of Adventist Health Centre to Dr. Andrew in Goroka for mental and psychiatric examination and counseling. Noted to be "no longer active… sleepy most of the time… no longer what he used to be."

•	23/3/98 – Referred by private doctor – Dr. Kia of Lae to Dr. Haina of A & E Ward, Port Moresby General Hospital. City Medical and Allied Services of Lae. Plaintiff "repeated episodes of memory loss, loss of interest in sporting activities, weariness of lower limbs and buttocks, (wasting in the ghuteal group of muscles (Probable atrophy due to nerve injury during contact with live wire)."

•	25/3/98 – Dr. Graham - Port Moresby General Hospital,– referred plaintiff to Dr. Haina who referred him to Consultant Professor Johnson, for assessment on loss of concentration, mood changes, mental and intellectual retardation and depression.

•	24/6/98 – Dr. Johnson was unable to review plaintiff because – (1) There were no adequate documentation for the patient including accident and emergency reports from contact doctor at Angau hospital; (2) No SMO physician/surgeon reports from Angau; and (3) No description of any physical injury. He then referred the plaintiff back to Dr. Haina with those comments.

In his affidavit sworn on15 November1999, the plaintiff says that as result of the shock, he started experiencing sleepiness, dizziness and fainted, lost concentration and at times had problems with walking and became psychologically affected. He lost balance and tripped and fell down and experienced frustration and agony. He stopped playing sports and work-parades at school. He worried about being mentally retarded and being unable to complete his education and become a professional man. This has continued during his school life and thereafter.

In summary, there is no other evidence including medical evidence supporting any physical injury caused by nervous shock. The fact that when the plaintiff was first seen at the outpatients at Angau hospital, he was discharged immediately suggests that he had recovered from the effects of the shock from the electrocution. It may also indicate the initial shock was not serious to cause tangible physical damage to vital organs of the body.

The only other evidence of any injury is from Dr. Brother Andrew. His evidence is purely on psychological injury resulting from the nervous shock. Brother Andrew is a Catholic priest and medical doctor and a specialist in psychiatry. He is generally regarded as an expert in the psychiatric counselling of young offenders and patients in this country. He examined the plaintiff in December 1994, then again on 29/8/95 and finally 4/3/99. As this is the only expert evidence of injury available, it is convenient to set out in full the pertinent parts of his report.

Post-traumatic stress

"Post-traumatic stress is a condition well recognized in the psychiatric literature as a group or syndrome of responses which are unquestionably linked to and follow from an event in which a sudden, overwhelming, inescapable threat to life or physical or mental integrity is experienced."

"The consequences of such an experience are chronic (long-lasting) and disabling emotionally and, often with secondary cognitive and behavioural deficits. Your client experienced the following debilitating features of this syndrome which are common."

"Frequent recall of the event with recurrence of strong emotions of fear and distress.

Frequent recall of the death of his friend with recurrence of his sense of personal loss and his own closeness to death. Frequent recall of a sense of being a particular target of unseen forces. Recall of the events in dreams with associated emotions of fear and powerlessness. A developing sense that these memories and dreams were caused by brain damage. Falling easily into periods or a longer state of depression resulting from the chronicity of the conditions with an expectation he would not recover and be able to recover his previous physical and mental functioning."

"These symptoms of Post Traumatic Stress caused sufficient difficulty in giving the necessary application to study that he was unable to achieve results in his Grade 10 examination to enable him to enter Secondary School."

"These features were noted at the first examination which was close in time to the traumatic even for them to be considered usual. I advised that your client required counselling to avoid developing a chronic condition which would interfere with his studies; I advised he could make appointments to see me for this purpose."

"Your client did not receive appropriate counselling to reduce the time for recovery; receiving only general support from one or two teachers but no specific remedial work or other therapeutic interventions except occasional and ineffective medication which served only to impart a continued sense of the physical and intractable source of his academic difficulties."

Intellectual capacity

"The plaintiff performed well above average on tests of memory and recall. He also performed well above average at cognitive tasks, both in spoken and written language and design copying and matching."

Assessment

"Your client’s performance at the Grade 10 examination was below his ability as a direct result of a severe post-traumatic syndrome for which he had received very limited therapeutic intervention; his Grade 10 result are a reflection of the cumulative effects of the difficulties he experienced over three years following a traumatic, near-death experience, the results are not an indication of his current ability."

Evaluation of disability
Physical disability

"The physical disability would not prevent normal activity. Although your client has not returned to his former proficiency in competitive sport this has been due to reduced self-esteem and poor self-esteem and poor self-image consequent on lowered performance following the accident. With practice and encouragement, he should be able to enjoy sports as before but as he has not had the necessary physiotherapy it is not known whether he could achieve his former proficiency."

"I would put a percentage disability of 6% on his locomotive function."

Psychosocial disability

"Your client’s principal disabilities are socio-economic as a direct outcome of the accident. The accident in which your client was in close proximity to a high-voltage electrical discharge was a near-death experience which resulted in Post-traumatic stress."

"It is my opinion that as a result of the accident your client’s educational and employment expectations have been reduced from tertiary and professional level to artisan or minor clerical level, or a 60% loss in earning expectations. He has also experienced over the last three years a 25% loss in enjoyment of life through sport and social activities."

Recommendation

"I recommend that your client be provided with the necessary funds to enable him to continue studies at an educational establishment where he can receive well-supervised education with remedial studies as required. He has previously attended an International School and would be able to handle such an educational environment."

"It is my opinion that this course of action made possible for the plaintiff would give significant recovery from his losses."

Br. Andrew’s conclusion is that the trauma of being electrocuted himself "with a near death experience" of his own and from seeing the death of his friend possibly affected him. The symptoms he complained of and problems reported by others, "are entirely consistent with Post-Traumatic Stress following such an event and near death experience." (Para 5 of his affidavit). When he gave evidence in Court some 6 – 7 years later, he assessed intellectual disability at 50%, physical disability at 60% and psychological disability at 30%. Much of Dr. Andrew’s assessment is based on post traumatic stress.

Analysis of Medical & Psychiatric Evidence and Findings 

On the above medical evidence, I find that the plaintiff did not sustain any physical injuries directly from the electrocution. His only physical injury, if any, is nervous shock, resulting in post traumatic stress. Consequently, his physical, psychological and his intellectual ability have been impaired. As Brother Andrew and the Doctors who examined him said, there is no cure for this kind of symptoms except proper counselling. As to the assessment of his physical, psychological and intellectual disability, Brother Andrew’s recent assessment is a guide but not conclusive. The percentage disability he has allocated which appears to be well above moderate levels, need to be taken with caution, given the nervous and mental shock which did not initially manifest itself in any tangible physical form when doctors who attended to him at the outpatient clinic did not admit him and put him under observation.

Then there is the question of whether his present condition was exasperated by other intervening factors such as illness or for other stressful situation generally in life or in school, to which the plaintiff, may have been exposed. Further, question of the remoteness of the psychological injury also remains a possibility, given the lapse of time between the time of injury and date of trial.

Physical Injury: Nervous Shock

There are two types of injury for which the plaintiff is entitled to be compensated by way of general damages. First, nervous and mental shock. Nervous and mental shock is a form of physical injury, which is often medically inexplicable. Nervous shock may be sustained directly or indirectly. It is direct when a person is exposed to some unexpected violent event. In law, there is no question on the compensable nature of this kind of nervous shock. But I must bear in mind the fact that when the plaintiff was examined at the outpatient clinic and discharged without any medical attention or treatment suggests that the initial shock may not have been serious as it did not immediately medically manifest itself. 

It is indirect when the person is not directly affected by the violent event but merely witnesses to a violent situation such as a person watching a fatal accident or a man fall from a tree or home. This kind of nervous shock is also compensable but it is subject to principles of causation or remoteness of damage.

In the present case, the plaintiff suffered nervous shock both direct and indirect sources. He suffered nervous shock from his own electrocution. He also suffered nervous shock with his "near death experience upon seeing the instant death of his friend." He is entitled to recover damages for both kinds of nervous shock. He is entitled to general damages for the initial nervous shock and trauma, unconsciousness and associated pain, suffering and discomfort. This relief is provided for at common law, as nullified by s.36 of the Wrongs Act (Ch. No. 297) which provides:

"Mental or nervous shock

–	In an action for injury the person, the plaintiff is not debarred from recovering damages merely because the injury complained of arose wholly or in part from mental or nervous shock."

Non-physical injury: Psychological injury

The second kind of injury is the psychological or psychiatric injury resulting from nervous or mental shock. Early common law cases restricted recoverable damages for psychological or psychiatric injury to cases of "recognizable psychiatric illness or injury" which were associated with physical injury and which were medically sustainable. These cases attempted to distinguish between "recognizable psychiatric" illness/injury which was compensable and mental / emotional) stress which was not recoverable in damages: Hinz v Berry [1970] 2 QB 40 at 42 – 43; per Lord Denning. But modern cases expanded the categories of "psychiatric" damage to include the latter category: see Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310. 

In PNG, the common law has been modified by s.36 of the Wrongs Act reflects the modern common law position. This section is widely worded to allow award of damages for psychological injury arising from nervous shock of the kind described by Dr Andrew in his report. Damages however must be properly assessed in accordance with established principles and practices including principles on causation or remoteness of damage. The difficulty however with this second category of injury is one of assessment of damages. It is practically difficult to assess damages for this kind of injury. As Sir Gordon Wilmer in Hinz v Berry said in Hinz v Berry at p. 46:

"It is practically impossible to find any signposts on the road; there is no tariff or pattern of awards in this class of case; and this makes it difficult for any one judge to criticize another’s estimate of what the damages ought to be."

The learned authors in the Text Book by Nicholas Mullany and Peter Haneford in Tort Liability for Psychiatric Damage – the Law of Nervous Shock, (Sweet and Maxwell, Sydney 1993) at p.263 – 264:

"Determination of reasonable compensation for psychiatric damage presents the ultimate nightmare for the judicial mind, especially where it is unaccompanied by physical impact on the patient’s body … of all the aspects of psychiatric damage law this is the one which we know least about. No clues can be gleaned from the oldest authorities given the reliance on jury assessment. There is no thread linking the more modern cases, no commonality between awards, no discernable process of damages calculation capable of extrapolation. All too often the question of damages for psychiatric harm is dealt with in a sentence or two with no indication given as to the reasoning which led to the figures decided on. Guesswork, unfortunately are not uncommon means by which sums are arrived at under various heads of compensable loss in the personal injuries sphere is the primary tool at the court’s disposal in psychiatric damage cases."

As to the proper approach to awarding damages for psychological or psychiatric injury, I prefer to adopt the approach taken by Andrew, J in Susanna Undapomaina v Talair Pty Ltd [1981] PNGLR 557 at page 563 where His Honour held that assessment of damages for nervous shock and psychological injury rarely appears as a separate and particular award; but it is compensable in general damages as part of pain, suffering and loss of amenities of life.

 The evidence of resulting physical, psychological and intellectual disability from the nervous shock in the present case needs to be examined, closely. First, in relation to physical injury, I have already discussed the lack of medical evidence to support any physical disability caused by nervous shock. Apart from this, Brother Andrew assess his physical disability in terms of injury in terms of locomotive function at 6% in terms of his ability to play competitive sports. But I also note with interest his assessment of past disability in terms of his ability to enjoy life through sports and social activities at 25%.

Secondly, intellectual disability. The evidence of the Plaintiff’s School grades in core subjects before the injury shows that he was an average student scoring good grades in core subjects. The evidence is that the plaintiff was aged 14 years old and was doing Grade 7 at Bugandi High School when he was injured. Prior to 1994, between 1987 – 1988 he completed Grades 1 – 2 at Four Mile Community School at Lae. From 1989 – 1992, he attended Bulae International Primary School, where he did his Grade 3, 4 and 5. In 1993, he transferred to Coronation International Primary, Lae where he did his Grade 6. His school reports in 1989 – 1993 for both international schools are annexed to Mr. Poabi’s affidavit (Annexures "C", "D", "E", & "F"). They show that he was an above average student in academic subjects and a top students in physical education, sports and the behavioural science subject. Not surprisingly, he scored awards for soccer, swimming, early morning walking, and boat paddling.

In early 1994 he enrolled in Grade 7 at Bugandi High School. His School Report for 1994, just before the injury is not in evidence. His records for Grade 8 and 9 are also not in evidence. His school report for Grades 7, 8 and 9 show good grades for core subjects and for practical courses and Commerce. The report says he was absent for 26 days in the period from 1994 – 1997, and "he has performed well in all core subject areas. Made improvements in all. Tried his best but just came too late. Could easily make it to higher Grades but needs to gain interest in his work." Grade for Grades 10 in 1997 shows Credit Grade for core subjects with a Pass in English and good grades for Practical subjects and Commerce. In 1988, he took extension studies under CODE program where he upgraded his grade in English from pass to Credit. From the above evidence, I find that the plaintiff’s School grades in core subjects before the injury shows that he was an average student scoring good grades in core subject. He continued to perform at the same level except in Grade 10, he scored a Pass in English, which he later upgraded to Credit. On this evidence, I find that his intellectual ability was not substantially impaired. If there was an impairment in educational intellectual ability pertinent to finding employment, it was in the area of practical subjects such as physical education, sports and behavioral subjects. He was a top student in these activities but his proficiency level has declined. As Brother Andrew says, this has more to do with post-traumatic stress resulting in reduced self – esteem, poor self-esteem and poor self-image, than from any physical disability.

Thirdly, psychological disability. There is evidence of psychological disability. Dr. Andrew refers to this type of injury as "psychosocial" under this category. Dr. Andrew assesses loss of earning capacity or future economic loss in terms of the plaintiff’s ability to complete his education, find employment and earn a living. In my view, I am not entirely certain if 60% loss in earning expectations, which I think, with respect, is high, can be directly attributable to the initial injury (nervous shock).

Brother Andrew also does not clearly distinguish between different types of employment streams such as professional office work, or artisan or practical work. 

General damages

On the evidence before me, I am prepared to grant a moderate global sum for general damages nervous shock and post-traumatic stress, etc which is inclusive or pain, suffering, loss of consciousness, and loss of injury or of life. The injury in the present case is purely one of nervous shock and resulting psychological injury. None of the cases cited to me by both counsel deal with this type of injury. The PNG cases cited to me show that the plaintiff’s in those cases who suffered nervous shock, psychological instability, anxiety, personality disorder or depression, were accompanied by some physical injury (other than nervous or mental shock) such as head, spinal or leg injury. No distinct awards in damages for those types of non-physical injury was made. The courts awarded a global sum for these kinds of injuries under general damages. The awards for general damages range from K9,000 – K22,000: Susan Indupomaina v Talair [1981] PNGLR 559, Make Kawe v Thomas Kundip [1986] PNGLR 279, Kokonas Kandapak v The State [1980] PNGLR 573, Darvil v MVIT [1980] PNGLR 548, Yapi Koka v MVIT [1995] PNGLR 249, Baduk v PNG [1993] PNGLR 250 and Casswell v National Parks Board [1987] PNGLR 458. The case of Lewis v The State [1980] PNGLR 219, is an example of serious head injury case where the plaintiff was awarded K125,000 in general damages. The plaintiff in that case suffered serious head injuries resulting in psychological and personality disorder and progressive memory loss resulted from serious brain damage from head injuries. The case of Colbert v PNG [1988-89] PNGLR 590 is another example of a serious head injury case. The plaintiff suffered psychological disability, memory loss and diminished intellect from a fractured skull and brain injury. He was awarded K70,000 in general damages.

I accept that the present plaintiff’s only form of physical injury is nervous shock, the nature and extent of which initially did not manifest in any physical incapacitating effect and which is not supported by any medical evidence. The resulting post-traumatic stress which gave rise to emotional, psychological and intellectual impairment also is not supported by some medical evidence which I must say with respect to Brother Andrew, is imprecise and lacks detail. Allowance should also be made for the possibility of other intervening factors in life such as other illnesses and stressful situations in life in the family or at school, which may have contributed to or aggravated these disabilities. In these circumstances, I consider that the sum of K20,000.00 is adequate to compensate for past and future pain, suffering, loss of amenities and enjoyment of life.

Economic Loss; Loss of Earning Capacity

The plaintiff is entitled to separate damages for economic loss. I accept that the plaintiff’s impairment of intellectual disability in the area of physical ability may result in the plaintiff’s inability to be fully involved in physical practical training and finding an appropriate job in the technical, arts or sporting area. 

There may be some intellectual disability which may adversely affect his learning capacity to fully engage himself intellectually professional employment. It is difficult to determine any of these practical or intellectual incapacities when there is no precise evidence on the plaintiff’s present or past job qualifications, income earning activities and loss of income as a guide.

There are two types of economic loss -loss of actual earnings and loss of or reduction of earning capacity. The former can be easily calculated mathematically with reference to actual income the plaintiff was earning in employment. The later is not so easy because it is the risk of losing the capacity to earn a living in the future which needs assessment. MVIT v. Pupune [1993] PNGLR 370 at 375 and Coady v. MVIT [1987] PNGLR 55 at 57. In the present case, I am dealing with a young student who is unemployed. The only issue is one of loss of or reduction in earning capacity, in terms of his ability to complete his High School Education and go on to find an employment of his choice. The principles is set out in Moeliker v A Reyrolle & Co. Ltd [1977] ALL ER 9 at 15 – 17 per Browne LJ; and Taylor v Bistol Omnibus Co. Ltd [1975] 2 ALL ER 1107, which was adopted in Coady v MVIT [1987] PNGLR 55. Browne LJ in Moeliker’s case states:

"(2) . . . ., the Court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if the risk materializes, having regard to the degree of the risk, the time it may 
materialize, and the factors, both favourable and unfavourable, which in a particular case, will or may, affect the plaintiff’s chances of getting a job at all ...." (Moeliker’s) case, per Browne LJ at p.17).

The above principles applies to both children and adults who are still in school and unemployed; per Kapi Dep. CJ at p. 58.

In Coady’s case, the plaintiff, an infant aged 4 ½ years suffered head injuries. Kapi Dep CJ applied the principles in Moeliker’s case to the facts before him as follows:

"Is there evidence to show that the chances of the plaintiff obtaining employment, when he comes to age, have been affected by the injuries received? . . . In dealing with a child aged about four and a half years of age, more is needed than simply stating that the plaintiff would be precluded from one field of or an area of employment which needs stereoscopic vision. The problem is that it is difficult for a court to know the abilities and the preferences of employment by the child. In the case of an adult, there would normally be evidence relating to his vocation, training, his skills, his preferences and the like. For a child to be successful in establishing that his chances of employment are affected by injuries, he must show evidence that his chances would be affected in the areas of employment that would be open or available to him when he reaches employment age. This task is easier when there is permanent injury to a working part of the body or an ability of a child."

There have been awards made in the United Kingdom and Australia, in respect of young children who are not yet employed, such as where the injury is serious that the child is unlikely to be employed or engaged in limited employment: Taylor v Bristol Omnibus Co. Ltd [1975] 1 WLR 1054 and Hutchinton v Swanel [1966] ACR 1021. These cases are quoted by Cory J in Coady’s case. In Jacquahire Kennedy v The State & Anor [1981] PNGLR 543, Narokobi AJ awarded K1,200 to a female child of 8 years 8 months, for future economic loss because "her school Grades fell and allowance was made for the possibility of extra tutorials should her eye problems hinder her progress." In my research I am unable to locate any cases in which a much older student was awarded damages for loss of earning capacity. The principles which underlie all these cases is that before an award is made for loss or reduction in earning capacity, there must be evidence, medical or otherwise, which supports the risk of intellectual or physical incapacity, which is likely to materialize in the future. 

In the present case, the first type of intellectual capacity is to do with doing well in core subjects and obtain employment in a professional calling or office of his choice. There is evidence from the plaintiff that he suffered from confusion and memory loss in school and worried about becoming mentally retarded and being unable to score good grades in school and be able to find a professional job of his choice. At the time of trial he was aged 23 years and had come of age. There is however no evidence of declining or poor performance in school and being unable to find a place in any college. or find some form of employment.

On the evidence of Brother Andrew alone, I am not satisfied that the plaintiff has suffered loss of earning capacity. The evidence is that his grades in core subjects was not affected much by the injury. There is also no proper medical evidence to support loss of prospect of employment. Dr. Andrew’s assessment of 60% loss in earning expectations, through reduction "from tertiary and professional level to artisan or minor clerical level" is not supported by the evidence on academic records and his academic performance in school before and after the accident. There are far too many uncertainties as to his future prospects of doing well and being employed in an office.

The second incapacity is in his practical subjects in the arts and sports. On the evidence, I am satisfied that the plaintiff was an exceptional student in practical subjects. As a result of the injury, his ability to advance his abilities and be meaningfully employed in practical work and also in the field of sports in modern times when sports is being increasingly potential, has been reduced to some cognizable extent. Dr. Andrew speaks at length about these past and future disabilities in the area of sports and social activities. The proper approach is to determine the balance of his working life expectancy and award a weekly economic loss and arrive at total economic loss using the 3% capitalization factor. In Ron Tinpul v. Moses Yere and Mt. Hagen Golf Club [1998] PNGLR 582, I awarded K23.00 loss per week to a 21 year old village boy (who was 13 years old at the time of injury) who was engaged in subsistence farming and cash crop without any fixed employment income. The present plaintiff has been brought up in an urban setting and has had high school education. Therefore, the weekly loss will be higher.

At the time of his injury, he was 14 years old. He is now about 23 years old. He has come of age but there is no evidence of any particular employment prospect that he may have lost or restricted as a result of the injury. In these circumstances, the global economic loss will discounted by a higher percentage for contingencies than Ron Tinpul’s case. I award weekly loss at K30.00 per week for working life expectancy of 30 years. Capitalized at 3% yields total of K31,140.00, I allow 30% for contingencies in life such as finding employment either in a profession or technical or artisan job. I award a global sum of K21,798.00 for future economic loss.

Special Damages

The plaintiff claims K14,750.00 in re-imbursement for costs of vehicle hire, accommodation in Goroka and Port Moresby where the plaintiff was seeking medical review. However, these are not supported by proper receipts, ticket butts, etc. Therefore, I decline to award the amount claim except reasonable costs for accommodation and bus fare for two for two trips each to Goroka and Port Moresby. Using Mr. Gamoga’s submission as a guide, I award K1,000 for special damages.

Exemplary Damages

The plaintiff claims K5,000 for exemplary damages but there is no evidence to support this claim. I am satisfied that the electrocution was an accident and not the result of any wanton neglect of duty on the part of the First Defendants.

Interest

I award interest at 8% per annum on past general damages which I apportion at K10,000.00. I award K6,400.00.

Summary of awards

I award total damages inclusive of interest of K 41,198.00 as follows:-

General damages: K20,000.00
Future economic loss: K21,798.00
Special damages: K1,000.00
Interest: K6,400.00
Total:    K41,198.00

Costs

I award costs of the proceedings to the plaintiff.

Apportionment of liability between First and Second Defendants

The plaintiff seeks the whole of the damages to be paid by the First Defendant because the judgment was against both defendants "jointly and severally". But that would mean that the Second Defendant would go scot free. I would apportion damages equally between the two defendants, on the basis that the service line was located inside the premises controlled by the second defendant, and it was the Second Defendant’s responsibility to report the fault to the First Defendant before it would go in to repair the fractured line. Equally so, the First Defendant as the sole supplier of power, should have detected the fault through its own ongoing detection mechanism or procedure, with or without reports or complaints from service receivers. In my view, both defects are equally at fault in leaving the fractured line unattended to. I apportion 50% liability to each defendant.

Orders

I make the following orders:-

1.	Judgment is entered in favour of the plaintiff against the First and the Second Defendant in the sum of K49,198.00 plus costs.

2.	The judgment and costs shall be equally apportioned between the two defendants.

3.	The entry of these orders is abridged to the time of settlement by the Registrar.
____________________________________________________________________
Lawyers for the plaintiff 		:	Warner Shand
Lawyer for the 1st Defendant		:	Gamoga & Co. Lawyers
Lawyer for the 2nd Defendant	:	No appearance