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Iagoro v Yalong [2009] PGNC 287; N3642 (30 April 2009)

N3642

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO. 1811 OF 2005

BETWEEN:

ROLAND IAGORO
Plaintiff

AND:

MAX YALONG
First Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Waigani: Manuhu, J
2007: 22 November
2009: 30 April

JUDGMENT

TORT – Assessment of damages – Plaintiff assaulted by two policemen – Permanent disability – 38 per cent impairment – Loss of job as a result of impairment – General damages – Special damages – Out of pocket expenses – Loss of money – Exemplary damages.

Case cited.
Eldwick v MVIL [1994] PNGLR 467

Counsel:
Mr. R. Uware, for the Plaintiff
No appearance for the Defendant

30 April, 2009

1. MANUHU, J: The substantive matter is a claim for damages for injuries received from physical assaults by the First Defendant. Liability has been determined in a default judgment. The matter is before me for assessment of damages.

2. The Plaintiff is a former public servant and unemployed. He lives at Isivi Street, Oro Province. He was, between 9:00pm and 10:00pm on 5 September, 2002, walking near Lamington Hotel when he was confronted by the First Defendant, a policeman, and another policeman in a police vehicle.

3. The First Defendant came out of the police vehicle armed with a gun. He hit the Plaintiff on the face with the barrel of the gun. He kicked and punched the Plaintiff. He then aimed the gun at the Plaintiff's head and fired a shot terrifying the plaintiff thereby causing severe damage to his eardrum.

4. The Plaintiff sustained physical and mental injuries. He received treatment at Popondetta General Hospital. The Plaintiff also lost K700 from his pocket that night. His injury was subsequently reviewed by Dr Haina at Port Moresby.

(i) General Damages

5. According to the medical evidence, the Plaintiff sustained severe injuries to his body particularly the face where "soft tissue injuries and physically traumatized as a result of the police assault." On review four years later in February 2006, Dr Haina reports that the plaintiff still suffers from:

• dizziness and light headaches;
• watery and blurring vision, worse on looking and reading books and on exposure to sunlight and has fleshy growth on right eye;
• healed scar on right lower lip affecting his speech and personal appearance;
• difficulty in chewing and mistasting food due to loose incisor teeth 1, 2, and 3 lower left jaw;
• painful and tender timber sacral spines;
• pain and restrictive movement of the chest and early fatigability on moderate activity.
  

6. The medical examination and assessment is as follows:

• for respiratory injuries 15%
• for scar tissue injuries, right upper Lip 6%
• Right eye 6%
• spinal injury – lower back 9%
• head injury (dizziness) 7%
  

All of these add up to 38% of whole person impairment.

7. I have been referred to the case of Eldwick v MVIL [1994] PNGLR 467 where K28,000 was awarded for permanent disability assessed at 35%. The Plaintiff has asked for K40,000.00. Among other things, K40,000 is consistent with the award in the cited case by reason of the value of the Kina then and now. I am satisfied that K40,000 is reasonable and I will award the Plaintiff accordingly.

(ii) Out of pocket expenses

8. The Plaintiff's pocket expense of K535 has to be refunded.

(iii) Economic Loss

9. The Plaintiff was earning K13,000 per annum as a Business Development Officer but was forced to resign owing to his 38% disability. Normally, the Plaintiff is entitled to be compensated for his entire working life until retirement. The plaintiff is, however, asking for K10,000 only which is lower than a year's salary. I accept his assessment.

(iv) Monies lost

10. The Plaintiff lost K700 at the time of the assault. He should be refunded.

(v) Exemplary damage

11. This is a case where 38% impairment has been inflicted on a man by armed policemen who were not provoked and had no reason to assault the Plaintiff. Such actions are prevalent and costing the people through the State a lot of money. To reflect the seriousness and disapproval of the assault, I will award K6,000 in exemplary damages. Out of that amount K1,000 shall be paid by the First Defendant.

(vi) Interest & Cost

12. I also award interest at 8 per cent commencing from the date the proceeding was filed. Cost is also awarded to the plaintiff.

Summary - General damages K40,000

- Special damages 535

- Economic loss 10,000

- Monies stolen 700

- Exemplary: State 5,000

First Defendant 1,000

Total 57,000

Interests and costs are to be calculated by the Plaintiff for endorsement by the Court.

Orders accordingly.
__________________________
Public Solicitor's Office: Lawyer for the plaintiff
Lawyer for the defendants: No appearance