N2981
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 611 OF 2002

FRANK YAKUPI

V

MOTOR VEHICLES INSURANCE LTD

Mt Hagen: Cannings J
2004: 25 November,
2006: 1 February

INSURANCE – third party liability insurance – compulsory motor vehicle insurance legislation

NEGLIGENCE – motor vehicle accident – particular relationships – motor vehicle driven on public road – duty of care owed by driver to pedestrians – standard of care. 

DAMAGES – measure of – personal injuries – motor vehicle accident – assessment exceeding statutory limit on liability – damages limited to K150,000.00 – Motor Vehicles (Third Party Insurance) Act, Section 49(2).

INTEREST – award of interest on damages – Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 – interest awarded in addition to damages.

COSTS – discretionary – costs awarded in addition to damages.

The plaintiff was walking along the Highlands Highway when he was struck by a vehicle insured by the defendant. The plaintiff was seriously injured and was rendered a paraplegic. He sued the defendant and secured a default judgment. The case came on for trial on assessment of damages. 

Held:

(1)	Damages were assessed for general damages (K280,000.00); future economic loss (K40,000.00); special damages (K14,000.00); special house (K30,000.00); future medical and related expenses (K24,000.00); and nursing expenses (K24,000.00); a total of K412,000.00.

(2)	However, the total amount of liability of the defendant is by Section 49(2)(a)(i) of the Motor Vehicles (Third Party Insurance) Act capped at K150,000.00 and that is accordingly the amount of damages payable by the defendant to the plaintiff.

(3)	Interest and costs are payable in addition to the total amount of damages. Reading v MVIT [1988] PNGLR 266 applied.

(4)	Interest of K11,103.20 is awarded under the Judicial Proceedings (Interest on Debts and Damages) Act.

(5)	The total judgment sum is K161,103.20.

Cases cited

The following cases are cited in the judgment:

Abbreviations

The following abbreviations are referred to in the judgment:

MVA – motor vehicle accident
MVIL – Motor Vehicles Insurance Limited
MVIT – Motor Vehicles Insurance Trust
PNG – Papua New Guinea

ASSESSMENT OF DAMAGES 

This was a trial on assessment of damages for personal injuries sustained in a motor vehicle accident.

Counsel

J Nandape, for the Plaintiff
M Titus, for the Defendant

1st February, 2006 

1. CANNINGS J: INTRODUCTION: This is a case about assessment of damages. The plaintiff was injured in a motor vehicle accident. He sued the defendant, the MVIL, as he is required to do under the law. The defendant failed to file a defence. A default judgment was entered in favour of the plaintiff so the matter has now come on for assessment of damages. 

BACKGROUND

The incident

2. On 5 August 1999 the plaintiff, who was at the time an able-bodied man, was walking on the side of the road from Mt Hagen to Kagamuga. At Dobel, near Kabuka Wholesale, he was struck by a vehicle and seriously injured. He is now a paraplegic, ie he is plaintiff paralysed from the chest down.

Statement of claim

3. On 14 May 2000 Tamutai Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff. MVIL was the first defendant. Charles Pora, the owner of the vehicle that allegedly struck the plaintiff, was the second defendant. The writ was served on 31 July 2003.

4. The statement of claim attached to the writ alleged that the second defendant owned the vehicle, a Nissan utility registration No HAE 071, that struck the plaintiff. The vehicle was insured with the defendant by policy No 2254178 covering the period from 30 December 2001 to 30 December 2002. The driver of the vehicle, Patrick Pat, drove without due care and attention, failed to keep a proper lookout, drove at excessive speed, drove on to a public park without due competence and skill and failed to apply the brakes in time to avoid an accident. The plaintiff suffered severe injuries because of the driver's negligence, including quadriplegia. Prior to the accident the plaintiff was a student attending Hagen Park Secondary School and in good health. He claimed damages for:

•	pain, suffering and loss of amenities;
•	loss of expectation of life;
•	future economic loss;
•	past out of pocket expenses;
•	future medical expenses;
•	future nursing and housekeeping;
•	a special house.

Default judgment 

5. The defendant failed to file a defence. On 16 Aug 02 the defendant's application for leave to file a defence out of time refused. ……. entered default judgment in favour of the plaintiff.

Events since August 2002

6. On 4 Feb 2004 the defendant's application for leave to appeal against entry of default judgment, with damages to be assessed, refused by Injia DCJ, sitting as single Judge of the Supreme Court.

THE LAW

7. This is a common law action for negligence brought within the statutory framework of the Motor Vehicles (Third Party Insurance) Act 1974. The plaintiff is required to bring the action against MVIL, as he asserts that the vehicle that struck him was insured with MVIL under that Act.

8. The key provision is Section 54(1), which states:

Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of—

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the successor company [defined by Section 1 of the Act as MVIL] and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.

9. Another relevant provision is Section 49(2)(a), which states:

A third-party insurance cover issued under Subsection (1) … where it is issued in relation to a particular motor vehicle, insures the owner of the motor vehicle and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally against all liability incurred by the owner and the other person jointly or by either of them severally in respect of the death of or bodily injury to a person caused by, or arising out of the use of, the motor vehicle, to an amount not exceeding—

(i) K150,000.00 in respect of the death of or bodily injury to any one person in any one case; and

(ii) K750,000.00 in the case of any one accident or series of accidents arising out of the one event.

THE PLAINTIFF'S EVIDENCE 

Outline 

10. Ms Nandape, for the plaintiff, tendered eight affidavits by consent and called the deponents of seven of them to give oral evidence. They were all cross-examined. The remaining deponent, the deputy principal of the plaintiff's school, was not required for cross-examination. There was one contentious affidavit, sworn by Patrick Pat, the person said to be the driver of the vehicle that struck the plaintiff. The defendant required him for cross-examination but he could not be produced. Mr Dowa applied for an order under Section 34(1) of the Evidence Act for his evidence to be given by affidavit. Mr Reid, for the defendant objected and I upheld the objection. Therefore the court heard no evidence from the driver.

The affidavits 

11. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS

Exhibit	Description	Content 	
A	Omben Kumbe, plaintiff, 
28.05.04	He comes from Mt Au, East Kambia, Western Highlands Province – was playing touch football with a group of other players on 21 October 2002 when at about 5.45 pm a Nissan ute hit him causing serious injury – he was not expecting the vehicle to drive straight at them – it appeared the driver lost control and drove straight at them – he and other boys tried to avoid it but he came directly at him and hit him. This affidavit has a number of documents annexed to it which are outlined below.	
B	Dr John McKup MB, BS, DCH, DGO, 
examining doctor, 
29.04.04	States that he is a medical doctor and director of the Family Medical Centre – examined Omben Kumbe on 10 February 2004 and established that he is quadriplegic – a medical report is annexed to his affidavit, the first part of which states that the patient was hit down and run over by a moving vehicle injuring his spine and that he was admitted to Mt Hagen General Hospital, he has a permanent incapacity and he has received appropriate surgical management – the second part of the report states that the plaintiff is completely paralysed in all four limbs and cannot look after himself – no further treatment necessary.	
C	Dr Timothy Tingnee,
MB, BS, M Med, 
treating doctor, 29.04.04	States that the patient was admitted to Mt Hagen General Hospital – provided an initial report on 10.02.03 – further report given on 14.07.03 – the plaintiff is a quadriplegic and will totally depend on his relatives for survival for the rest of his life.	

Glossary of medical terms

12. I have prepared a glossary of the medical terms used in the evidence and the judgement sourced mainly from The New Oxford Dictionary of English, Oxford University Press, 1998. The meaning given to the terms represents the court's understanding of various terms used in the evidence.

allergy – a damaging immune response by the body to a substance
avascular necrosis – death of tissues due to lack of blood supply
back – the rear surface of the body from the shoulders to the hips
backbone – the series of vertebrae extending from the skull to the pelvis, enclosing the spinal cord; also known as the spine
buttocks – the two round fleshy parts of the body that form the bottom
C5/C6 spine – the fifth and sixth (of seven) cervical vertebrae
central nervous system – the complex of nerve tissues that controls the activities of the body; comprising the brain and spinal cord
cerebral – of or relating to the cerebrum of the brain 
cerebrum – the principal part of the brain
cervical spine injury – an injury to the part of the spine between the skull and the chest, comprising seven vertebrae
cervical vertebra – an individual bone in the cervical spine
circulatory – of or relating to the circulation of blood
conscious – awake, aware of and responding to one's surroundings 
dislocation – disturbance of normal position
femur – the bone of the thigh, articulating at the hip and the knee
hip – a projection of the pelvis and upper thigh bone on each side of the body
hip joint – the part of the pelvis which articulates with the femur
incapacity – physical or mental inability to do something
limbs – the arms and legs
neck – the part of the body connecting the head to the rest of the body
necrosis – death of most or all of the cells in an organ or tissue due to disease, injury or failure of the blood supply
neurogenic shock – low blood pressure caused by profound disturbance to the central nervous system
operating theatre – a room in a hospital in which surgical operations are performed
paralyse – cause a part of the body to become partly or wholly incapable of movement
paralysis – loss of the ability to move a part of the body
paraplegia – paralysis of the legs and lower body, typically caused by spinal injury or disease
paraplegic – a person who has paraplegia
patient – a person receiving medical treatment
pelvis – the large bony structure near the base of the spine to which are attached the legs
physiotherapy – the treatment of disease, injury or deformity by physical methods such as massage, heat treatment and exercise rather than by drugs or surgery
posterior dislocation – when the head of the femur moves out of the hip joint
pressure sores – chronic ulcers (areas of skin and tissue loss) caused by immobility
primary trauma care – initial care given to an injured person, including stabilising of neck and maintenance of the airway
quadriplegia – paralysis of all limbs
quadriplegic – a person who has quadriplegia
sacral region – the back part of the pelvis 
sequel – a result of 
skeletal traction – stabilisation of a fracture or dislocation by traction applied through bones
skull – the bone framework of the head
skull tongs – strong metal callipers screwed into the skull to which weights are applied, to maintain normal alignment of the neck
spinal cord – the cylindrical bundle of nerve fibres and associated tissue which is enclosed in the spine connecting nearly all parts of the body to the brain, with which it forms the central nervous system
spine – the backbone
supine – lying face upwards
surgeon – a medical practitioner who practises surgery
surgery – the branch of medicine concerned with treatment of injuries or disorders of the body by incision or manipulation, especially with instruments
traction – the application of a sustained pull on a limb or muscle, to maintain its position or correct a deformity
unconscious – not awake, aware of and responding to one's surroundings 
vertebra – any of the individual small bones forming the backbone, having several projections for articulation and muscle attachment and a hole through which the spinal cord passes
vertebrae – plural of vertebra
voiding ability – the ability to expel urine and faeces 
waste – urine and faeces
x-rays – a photographic or digital image of the internal composition of parts of the body

Oral evidence

13. The plaintiff Omben Kumbe adopted his affidavit in examination in chief. He stated that he was playing touch football and during the game the vehicle came and bumped him. Just before he was hit, he had the ball and was running across the field. The vehicle was travelling a bit fast and hit him on the left shoulder. The vehicle ran over him. He grew up in the area of the playing field and knew that vehicles often travel along the field. When the incident happened he was busy playing and was thinking of taking the ball to the goal area. Asked what difficulties he now has the plaintiff stated:

I am unable to do anything in my lifetime because I am now using a wheelchair. I am expecting that … I would be in this position for the rest of my life. Since I sustained those injuries, there is no change in my life or improvement.

14. In cross-examination he stated the vehicle was coming from the direction of Warakum [a locality in Mt Hagen at one end of the park] and hit him on his left shoulder. He was running across the field, across the front of the car. He was playing rugby with six or seven boys. There were some other people in the area at the time. The vehicle hit him hard and his shoulder was injured. He did not know the driver prior to the incident. He now knows him but has had no discussions with him and nothing has been agreed with him about what occurred.

15. In re-examination the plaintiff stated he did not hit the vehicle, but the vehicle hit him.

16. Dr John McKup adopted his affidavit and was not asked any substantive questions in examination in chief.

17. In cross-examination he said that his report stated that the plaintiff was hit by a vehicle because the plaintiff or his family had told him that. He confirmed that there is no further treatment that the plaintiff could have to remedy his current situation. As to the way in which the plaintiff was transported from the scene of the incident to the hospital, there is a possibility that it would have contributed to the extent of the plaintiff's injuries.

THE DEFENDANT'S EVIDENCE

18. The defendant offered no evidence.

THE ISSUES

PLAINTIFF'S SUBMISSIONS

19. Ms Nandape submitted that the total award should be assessed as K708,156.00, comprising general damages (K350,000.00), future economic loss (K208,000.00), special damages (K14,156.00), special house (K40,000.00), future medical and related expenses (K48,000.00) and nursing expenses (K48,000.00). However, he acknowledged that the statutory limit of damages is K150,000.00, exclusive of interest.

DEFENDANT'S SUBMISSIONS

20. The two major planks of the defendant's submission were that the plaintiff failed to bring cogent evidence that a motor vehicle accident occurred in the manner alleged and that, even if there were such an accident, the plaintiff did not prove that the vehicle was insured.

21. As to the amount of damages Mr Titus submitted that the total should be K81,500.00, comprising general damages (K30,000.00); special damages, pre-trial (K12,000.00); special damages, post-trial (K20,000.00); loss of income (K40,000.00); wheelchairs etc (K8,000.00); less the discount for poor primary trauma care (incorrectly calculated as K28,500.00). Interest at 8% and costs would be extra. If any damages are awarded they should be paid periodically, rather than in a lump sum, as the National Court (Woods J) ordered in John Taka v Leo Kapi and The State [1995] PNGLR 254.

22. However Mr Reid reiterated that the defendant's primary submission was that the plaintiff had not proven the key elements of his claim: that he was injured in a motor vehicle accident and that the vehicle was insured. It may be that the plaintiff will be able to pursue his loss by other means, eg he might sue the local government authorities for negligently allowing a vehicle on a playing field or sue his lawyer for the way in which the case has been conducted.

FINDINGS OF FACT

Undisputed facts

23. The plaintiff is a paraplegic. He was admitted to Mt Hagen General Hospital in October 2002 exhibiting signs of a traumatic, life threatening event that caused that condition. He was treated at the hospital for several months. His quadriplegia is a permanent disability. No surgery is available that can reverse that condition. He has a reduced life expectancy. He cannot work. Since being discharged from the hospital he has been cared for by his family.

Disputed facts

24. There are two fundamental areas of dispute:

•	where, when and how was the plaintiff injured?

•	if he was injured in the manner alleged, was the vehicle that hit him insured by the defendant?

WHERE, WHEN AND HOW WAS THE PLAINTIFF INJURED?

25. I will start by making an assessment of the overall standard of the documentary and oral evidence.

WAS THE VEHICLE INSURED?

DOES THE CLAIM MEET THE REQUIREMENTS OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT?

26. Yes. The plaintiff's claim falls within Section 54(1)(a), as it has been proven that:

•	it is a claim for damages;

•	for bodily injury to a person;

•	arising out of the use of a motor vehicle;

•	the motor vehicle was insured under the Act;

•	the claim was made against the defendant and not against the owner or driver; and

•	proceedings to enforce the claim were taken against the defendant and not against the owner or driver.

WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED?

Claim and response

27. I will set out in the following table what categories of damages the plaintiff is claiming and how the defendant responds.

TABLE 2: PLAINTIFF'S CLAIMS AND DEFENDANT'S RESPONSE

No	Category	Amount claimed	Response	
1	General damages	K350,000.00	 K30,000.00	
2	Future economic loss	208,000.00	40,000.00	
3	Special damages	14,156.00	32,000.00	
4	Special house	40,000.00	0	
5	Future medical & related expenses	48,000.00	8,000.00	
6	Nursing expenses	48,000.00	0	
7	(Poor primary trauma care)	0	(28,500.00)	
	Total	K708,156.00	 K81,500.00	

General damages

28. This head of damage was pleaded in the statement of claim and represents pain and suffering and loss of amenities of life and loss of expectation of life associated with the plaintiff's permanent incapacity, quadriplegia. Mr Dowa cited a number of previous cases to demonstrate a fair figure. I accept his submission that the effects of inflation have to be considered when comparing awards of damages in previous cases. (See Tumunda Toropo v Jack Awabe and The State (2001) N2116, National Court, Hinchliffe J.)

29. I will summarise the cases in which courts in Papua New Guinea have assessed general damages for plaintiffs who have suffered quadriplegia or its related but less serious condition, paraplegia.

TABLE 3: ASSESSMENT OF GENERAL DAMAGES – QUADRIPLEGIA

No	Case	Details	Assessment	
1	Kepa v Boi Gerek and The State 
[1991] PNGLR 424
National Court, 
Woods J,
judgment given 08.03.91	The plaintiff, a 28-year old woman, aged 31 years at trial, active in church and village affairs and the running of a village coffee project, was rendered a quadriplegic and totally dependent on others for needs, as a result of a motor vehicle accident caused by the negligence of the driver of a government vehicle in which she was a passenger. General damages covered pain and suffering and loss of amenities of life. Separate awards of damages were made for loss of expectation of life (K1,500.00); past out of pocket expenses (K12,960.00); future medical expenses (K15,000.00); further nursing and care (K11,300.00) and home alteration (K15,000.00).	K140,000.00	
2	Wallace v MVIT
[1991] PNGLR 341
National Court, 
Doherty J,
judgment given 06.09.91	The plaintiff was rendered a quadriplegic because of a motor vehicle accident, lodged a claim with the insurer and reached settlement on the amount of general damages, exclusive of costs and interest. A dispute later arose about assessment of interest and damages. The plaintiff commenced proceedings to enter judgment on the settled amount and to recover interest.	K100,000.00	
3	Omben Kumbe v MVIL
(1995) N2860
National Court, 
Cannings J,
judgment given 28.07.05	The plaintiff was rendered a quadriplegic because of a motor vehicle accident on a public park in Mt Hagen. There was a trial on both liability and assessment of damages. Separate awards of damages were made for future economic loss (K40,000.00); special damages (K14,000.00); special house (K30,000.00); future medical and related expenses (K24,000.00); and nursing expenses (K24,000.00). 	K280,000.00	

TABLE 4: ASSESSMENT OF GENERAL DAMAGES – PARAPLEGIA

No	Case	Details	Assessment	
1	Charles Pupu v Pelis Tomilate and The State
[1979] PNGLR 108
National Court, 
Saldanha J, 
judgment given 10.04.79	The plaintiff, a qualified aircraft maintenance engineer, aged 25 at the time of injury and 28 at trial, was rendered a paraplegic as a result of a motor vehicle accident. The award of general damages covered pain and suffering and loss of amenities (K30,000.00); future economic loss (K58,085.00); future out of pocket expenses, eg medical, house alterations (K15,855.00). 	K30,000.00	
2	Robert Younger Kerr v MVIT
[1979] PNGLR 251
Supreme Court, 
Raine DCJ, Pritchard J, Andrew J,
judgment given 10.08.79	The plaintiff, a 26-year old non-citizen, was rendered a paraplegic as a result of a motor vehicle accident, and appealed to the Supreme Court against an assessment of damages by the National Court on the ground of inadequacy. It was held that in assessing general damages for pain and suffering and loss of amenities of life the assessment should be made having regard to the prevailing condition of the plaintiff at the time of injury and the general standards prevailing in the community. The appeal was upheld. The Supreme Court assessed general damages, covering pain and suffering and loss of amenities of life (K60,000.00); loss of expectation of life (K1,500.00); future economic loss (K60,000.00); special equipment (K13,000.00); and future nursing and housekeeping expenses (K30,000.00).	K60,000.00	
3	Meddie Serive v The State 
[1981] PNGLR 549
National Court, 
Pratt J,
judgment given 30.07.81	The plaintiff, a 20-year old man who had just completed his probation as an assistant correctional officer, suffered head and spinal injuries in a motor vehicle accident and was rendered a paraplegic. The award of general damages covered economic loss; housing; vehicle; wheelchairs; family services; loss of expectation of life; and pain and suffering and loss of enjoyment of life (K45,000.00).	K45,000.00	
4	Aundak Kupil and Kauke Kensi v The State
[1983] PNGLR 350
National Court, 
Bredmeyer J, 
judgment given 20.10.83	The two plaintiffs, male villagers, were each rendered a paraplegic as a result of a motor vehicle accident. The first plaintiff had three wives and received income from the sale of firewood and a tradestore. The second plaintiff had one wife and received income from sale of firewood, vegetables and pigs. The awards of general damages excluded damages for past economic loss; loss of expectation of life; past medical expenses; and future medical expenses. 	K90,000.00
K75,000.00
	
5	Pokowan Kandaso v MVIT
(1992) N1074
National Court, 
Woods J,
judgment given 01.07.92	The plaintiff, a village woman in her early 20s, was rendered a paraplegic with 100% permanent loss of function in both legs and incontinence, as a result of a motor vehicle accident caused by the negligence of the driver of the utility on the back of which she was riding. The award of general damages excluded damages for past (K1,600.00) and future (K12,000.00) economic loss.	K90,000.00	
6	John Taka v Leo Kipi and The State 
[1995] PNGLR 254
National Court, 
Woods J,
judgment given 17.02.95	The plaintiff, a village man in his late 20s, with no formal education, was rendered a paraplegic and dependent on others for needs, as a result of a motor vehicle accident caused by the negligence of the driver of a government vehicle in which he was a passenger. The award of general damages excluded damages for past economic loss (K9,100.00).	K90,000.00	

30. Having considered all the above cases those that stand out as the most suitable precedents are Kandaso and Taka, decided in the 1990s in Mt Hagen by Woods J. The sum of K90,000.00 was awarded to a village woman and village man respectively who suffered quadriplegia due to a motor vehicle accidents. Those cases were more than ten years ago and the reduced purchasing power of the kina must be considered. In arriving at an appropriate figure I have disregarded the statutory limit of K150,000.00. That only becomes relevant once the total amount of damages is assessed.

31. I have considered that the purpose of an award of damages is to compensate a person; to put them as far as possible in the same position they would have been in had they not suffered the injuries incurred because of another person's negligence. Damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364, National Court, Brunton AJ).

32. In the present case the plaintiff now faces an extremely difficult life. He will be entirely dependent on others to live and survive from day to day. It is really an impossible task to make an assessment of damages commensurate with what he has lost and what he will endure for the rest of his life. Ms Nandape submitted that the sum of Kxxx,000.00 should be assessed. I do not think that is outside the bounds of reasonableness. However it is not appropriate for the National Court to make a quantum leap, to that extent. So the figure will be less than that. As for the defendant, Mr Titus proposed Kxx,000.00. That is a grossly inadequate amount. I consider it appropriate to double the amounts assessed in Kandaso and Taka. I have also taken into account the award of K280,000.00 I assessed in Omben Kumbe's case in 2005, for quadriplegia. That is a more debilitating condition than paraplegia.

Therefore I assess general damages at K180,000.00. 

Future economic loss

33. This has been inadequately particularised in the statement of claim and the evidence in support of this aspect of the claim is weak. The plaintiff has a substantially reduced life expectancy due to his quadriplegia. I discount the claim of K208,000.00 to the amount proposed by the defendant.

The assessment is K40,000.00.

Special damages

34. This is said to be the amount spent on nursing and other medical treatment in the pre-trial period. Evidence is contained in the affidavit of the plaintiff's brother, Joe Kupe. The amount is reasonable and is not seriously disputed by the defendant.

35. The assessment is the amount claimed, rounded to the nearest thousand, K14,000.00.

Special house

36. The plaintiff claims K40,000.00 for the cost of building a special house. Mr Dowa submits that there is a precedent for this in Kepa, where the quadriplegic plaintiff was awarded K15,000.00 to allow a new home to be built or to cover alterations to ensure she had a suitable home to live in. It has been adequately pleaded in the statement of claim and is properly regarded as a separate head of damage.

I assess K30,000.00.

Future medical and related expenses

37. This has been inadequately particularised in the statement of claim and the evidence in support of this aspect of the claim is weak. The plaintiff has a substantially reduced life expectancy due to his quadriplegia. I discount the claim of K48,000.00 by 50%.

The assessment is K24,000.00.

Nursing expenses

38. The amount claimed, K48,000.00, will be discounted by 50%, for the same reasons as medical and related expenses.

The assessment is K24,000.00.

Poor primary trauma care

39. The defendant submits that whatever total amount of damages is assessed, it should be reduced by 25% because of the poor primary trauma care given to the plaintiff prior to admission to hospital. Mr Reid points out that the admission notes state:

Was brought into the hospital by a non-medical team – poor primary trauma care. … DO NOT MOVE NECK.

40. It is fundamental first aid for spinal injuries that the spine and neck be immobilised. Here the plaintiff's team-mates say that they dragged the plaintiff from under the car, a Nissan utility, then put him on the metal tray of the utility, which was then driven across the bumpy, uneven field to the hospital. It is highly likely that if the accident occurred as alleged the poor primary trauma care contributed to the plaintiff's injuries by 25%. This is not the defendant's responsibility, Mr Reid submitted.

41. I accept that the evidence establishes that the plaintiff was given poor primary trauma care. However the evidence falls short of enabling the court to find that this actually contributed to his injuries. Dr McKup stated in evidence that there is a possibility that the way in which the plaintiff was transported to the hospital would have contributed to his injuries. Dr Tingnee was not asked any questions about it. I therefore cannot make the finding of fact that would be required to sustain this submission.

43. However, if I had made that finding I would have still reached the conclusion that there should be no deduction. The submission is misconceived, coming as it does late in the proceedings when the court is assessing damages. It is not a contributory negligence argument, as contributory negligence applies only when the plaintiff is guilty of contributing to his injuries by his own negligence. It is not a remoteness argument, as the plaintiff has already established that the type of injuries he suffered was reasonably foreseeable and therefore not too remote.

44. It is, at best, a causation argument. There was a break in the chain of causation. A separate event happened (the poor primary trauma care) which was not reasonably foreseeable, and which actually became a major cause of the plaintiff's injuries. That argument, however, cannot be sustained. Even deliberate and unlawful acts by third parties that follow a negligent act do not absolve the negligent party if the acts of the third parties are such as would be known by the ordinary reasonable person to be a likely consequence of a negligent act. A case in point is Elizabeth Moini v Government of Papua New Guinea [1977] PNGLR 39, National Court, Williams J. A government vehicle, driven negligently, ran over and killed a child on the highway near Goroka, Eastern Highlands Province in 1972. Immediately after the accident angry and distressed villagers took retaliatory action against the occupants of the vehicle. The driver and the plaintiff's husband, who was a passenger, were killed. It was held that liability does not depend on the injury being the direct and natural consequence of the defendant's negligence. A person in the position of the driver would know that negligent driving causing death to a villager in the Highlands would be likely to set in motion violent retaliatory action against the occupants of the vehicle he drove. The plaintiff's husband's death was a foreseeable consequence of negligent driving. Therefore the government, as employer of the negligent driver, was liable in damages for the death of the plaintiff's husband.

45. Applying those principles to the present case: would a person in the position of the driver of the utility know that if he collided with a footballer on the field causing him serious injury that team-mates or bystanders would be likely to give poor primary trauma care? Was poor primary trauma care, exacerbating the injury caused directly by the collision, a reasonably foreseeable consequence? These issues would be answered yes. Poor primary trauma care was reasonably foreseeable. There was no break in the chain of causation.

46. There will be no reduction in the assessment of damages due to poor primary trauma care.

Total assessment

47. To sum up I make the following assessment of damages:

•	general damages of K280,000.00;

•	future economic loss of K40,000.00;

•	special damages of K14,000.00;

•	special house of K30,000.00;

•	future medical and related expenses of K24,000.00;

•	nursing expenses of K24,000.00. 

The total assessment of damages, subject to the statutory limit, is K412,000.00.

Statutory limit

48. As explained earlier Section 49(2)(a)(i) imposes a limit on the liability of the defendant in this case of K150,000.00. I will therefore award damages of K150,000.00. That amount is exclusive of interest and costs (MVIT v Reading [1988] PNGLR 236).

Lump sum or periodic payments?

49. The defendant urged the court to consider making damages payable in the form of periodic payments as was done in John Taka v Leo Kapi and The State [1995] PNGLR 254. The same thing was done in Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350 where Bredmeyer J found authority for doing so in Section 155(4) of the Constitution. There is no doubt the court has the power to make such an order and given the age and circumstances of the plaintiff it would be a proper order to make.

50. It is a worthwhile suggestion. However it is not what the plaintiff wants. The plaintiff gave evidence and I observed his demeanour and, consistently with the medical evidence, he exhibited no signs of intellectual impairment or mental infirmity. I gained the impression that he knows what these court proceedings are about. His brother, Joe Kupe, was cross-examined as to his role in caring for the plaintiff and looking after money matters. He stated that he would manage the money for the benefit of the plaintiff for the rest of his life. He will not misappropriate it. His demeanour gave me no reason to believe that he was not genuine. Therefore I will order that the award of damages be paid in a lump sum.

INTEREST 

Discretion

51. It is normal practice in a case in which damages are awarded to also award interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1(1) is the relevant provision. It states:

 … in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

52. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run. 

Exercise of discretion

53. I exercise that discretion in the following way:

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given. 

2 The standard rate of interest being used these days by the courts is 8%. In view of prevailing interest rates in the country 8% could be considered generous. However the defendant concedes that 8% is appropriate so it is, I think, the proper rate of interest. It has been decided in some cases that awards of special damages should attract interest at only half of the proper rate (eg Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach. 

3 Interest should be payable on the total of the pre-judgment components, if any, of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid to him. In Pinzger the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses, eg damages for loss of future earnings, it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following table.

TABLE 5: PRE-JUDGMENT AND POST-JUDGMENT COMPONENTS OF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total	
1	General damages	K60,000.00	K220,000.00	 K280,000.00	
2	Future economic loss	0	40,000.00	40,000.00	
3	Special damages	14,000.00	0	14,000.00	
4	Special house	0	30,000.00	30,000.00	
5	Future medical & related 	0	24,000.00	24,000.00	
6	Nursing expenses	0	24,000.00	24,000.00	
	Total	K74,000.00	K338,000.00	 K412,000.00	

Thus only two categories of damages will attract interest: general damages (K60,000.00) and special damages (K14,000.00).

4 The appropriate period for which interest is to run is also the subject of Supreme Court guidelines in Pinzger. It varies according to the category of damages. For general damages it is from the date of service of the writ to the date of trial. For special damages it is from the date of the accident to the date of trial. In other cases the date of judgment has been substituted for the date of trial (eg Reading v MVIT [1988] PNGLR 266, National Court, Woods J; affirmed on appeal in MVIT v Reading [1988] PNGLR 236, Supreme Court, Kidu CJ, Amet J, Cory J). I consider that the date of judgment is a fairer end-mark for the period. As that lies within the boundaries of my discretion, I set it at that. In the present case the date of the accident is 21 October 2002. The date of service of the writ is 31 July 2003. The date of this judgment is 28 July 2005. Interest will run on general damages (at 8%) from 31 July 2003 to 28 July 2005, a period of 1.99 years. Interest will run on special damages (at 4%) from 21 October 2002 to 28 July 2005, a period of 2.77 years.

Calculation

54. I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

Therefore:

•	interest on general damages = K60,000.00 x 0.08 x 1.99 = K9,552.00; 

•	interest on special damages = K14,000.00 x 0.04 x 2.77 = K1,551.20. 

55. I will order that there be included in the sum for which judgment is given, interest of K11,103.20.

COSTS

56. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. 

57. On the second day of the trial, 19 October 2004, the plaintiff applied during the course of submissions to reopen the evidence by recalling First Constable Yapu to the witness box to give evidence regarding the insurance issue. The application was objected to. I upheld the application but ruled that costs of that day's proceedings and any proceedings held as a consequence of that ruling would be borne by the plaintiff. First Constable Yapu was recalled on the third and final day of the trial, 21 October 2004. Therefore the plaintiff must bear the costs of the proceedings for all of 19 and 21 October 2004.

All other costs must be paid by the defendant. 

JUDGMENT

58. The Court directs entry of judgment in the following terms:

1	damages, payable by the defendant, MVIL, to the plaintiff, Omben Kumbe, in a lump sum of K150,000.00;

2	interest payable by the defendant, MVIL, to the plaintiff, Omben Kumbe, in a lump sum of K11,103.20;

3	being a total judgment lump sum of K161,103.20 to be paid within 30 days after the date of entry of this judgment;

4	costs of the proceedings shall be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed, except in relation to the proceedings of 19 and 21 October 2004, the costs of which shall be paid by the plaintiff to the defendant on a party-party basis, to be taxed if not agreed. 

Judgment accordingly.
___________________________________________________________
Tamutai Lawyers: Lawyers for the Plaintiff 
Mirupasi Lawyers: Lawyers for the Defendant