N5988

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 303 OF 2004

BETWEEN:

JESSICA KOGUN
Plaintiff

AND:

JOHN KOLOPEN
Police Station Commander Banz
First Defendant

AND:

SAM INGUBA
POLICE COMMANDER
Second Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Police Commissioner
Third Defendant

Mt Hagen: Poole, J
2013: 9th September
2015: 19 June

EVIDENCE - Expert Witness – Necessary to show witness has a particular and special knowledge of a subject before his evidence may be accepted as expert – Court to be satisfied of witness expert status as preliminary to considering substantive evidence - Impairment Assessment Requires measurement against stated objective norms - Tests administered must be stated, together with results, before valid assessment of disability can be stated.
EVIDENCE - Statement of administrative title is not statement of individual qualifications to fill the rank.

PRACTICE - Claim by father that he has lost future bride-price and earnings of daughter not valid claim for damages by injured daughter

Cases Cited:
Papua New Guinea cases

Rosa Nimbil v Western Highlands Provincial Government (2013) N5290
Nari v The State (2004) N2769
Paraia v The State (1995) N1343
Eremugom v Tande (2005) N2889
Kenziye & Ors v The State (2013) N5424
PNGBC v Tole (2002) SC694
Marley Pyali v Chief Inspector Leo Kabilio & The State (2003)N2492
Lina Kewakali v The State (2011) SC1091
Banz Kofi Factory v Raymond Apa [2003] PNGLR 189
Margret Darvill v MVIT [1980] PNGLR 548
Sussana Undapmaina v Talair Pty Ltd [1981] PNGLR 559
Kunjil On v The State [1986] PNGLR 286
MVIL v Meki Koi (2007) SC902
Andrew Moka v MVIL (2004) SC729

Overseas Cases

Bonham-Carter v Hyde Park Hotel Ltd (1948) TLR 177

Counsel:

Mr Kopunye, for the Plaintiff
Ms Bamin, for the Defendants

19 June, 2015

1. POOLE J: Background: This action is brought by the father of the Plaintiff seeking damages for injuries the Plaintiff sustained, and the continuing consequences of them, when she was shot on the 22nd of June 2002, in broad day light near the Banz Police Station. It is the Plaintiff's case that she was shot by one of the policeman who was then there. At the time the Plaintiff was injured, she was one of number of bystanders that had gathered near the football field close to the Police Station to watch a helicopter land and deliver ballot boxes. It is the Plaintiff's case that police fired a number of random shots at this time, one of which hit her in the left leg.

2. The Plaintiff was then transported to the Kudjip Hospital in a police vehicle and remained in hospital till the 27th of September 2002. The wound to her left thigh involved a compound fracture of the femur which required considerable orthopaedic surgery. At the time of her injury the Plaintiff was seven years old and the experience of being shot is said to have caused her continuing psychological problems, for which damages are also sought.

3. The Pleadings commenced on the 5th of March 2004 with the filing of the Plaintiff's Writ and Statement of Claim. In it the Plaintiff names, as First Defendant, John Kolopen, said to be then the Police Station Commander at Banz, as Second Defendant, Commissioner Sam Inguba, then the Commissioner of the Royal Papua New Guinea Constabulary and as Third Defendant the Independent State of Papua New Guinea as nominal defendant vicariously liable for the actions of its servants or agents the police.

4. The Plaintiff pleads the giving of the required Notice to the State under section 5 of the Claims Act and, following service on the State of the Statement of Claim, a Notice of Intention to Defend was filed on the 14th of September 2004 on behalf of all Defendants.

5. As is unfortunately common in cases of this type, the State did not file any Defence and, on the 27th of May 2005, the Plaintiff obtained Default Judgement on the question of liability. The repeated failure of the State Solicitor's office to defend claims arising out of actions by the police is utterly inexcusable. Instead of disclaiming vicarious liability in appropriate cases, or defending the action after obtaining proper instruction, the State is being put in the position of a passive pay master to pay out millions of kina of badly needed public funds because of claims of misconduct by its agents. Worse, there have been instances of payments being made as a result of default judgements in which liability was, at the very best, doubtful. Such an approach to litigation, if it occurred in private practice, may provide a solid basis for a claim of professional negligence against a lawyer who treated the defence of the claim against his client in such a supine way. 

6. The Plaintiff then filed a number of affidavits of evidence which are relied on pursuant to Notice given under section 35 of the Evidence Act.

7. There are no affidavits of evidence or relevant pleadings filed by the Defendants other than in support of an unsuccessful Application for Leave to file a Defence out of time.

8. The evidence before the court is all by affidavit and consists of the following:

(i) An affidavit of Brek Ju, an eye witness, filed on the 13th of September 2013, who deposes:

•	On Monday the 24th of June 2002 at about 4pm he saw "police open fired (sic) and I saw a man hit by the bullet near the road, and he fell, and when another shot was fired a girl further up the foot path got hit." He was arrested and says he was beaten by police.

•	"When I came back from the Mt. Hagen cell the next day I learned that one person was shot fatally and another little girl got injured" and, his affidavit continued, "I also knew that the small girl who got shot (sic) by the police is Jessica Kogun of Banz."

 (ii) An affidavit by Billy Kolip, another eye witness, filed on the 13th of September 2013 who deposes:

•	On Monday the 24th of June 2004 at about 4pm "there was rapid gun fire from the police station."

•	"On my way up the mountain I saw the little girl was shot and she was lying on the ground. I thought she already died but when I came to aid her, she was crying in pain and fell unconscious". He carried her to the police station and said the police transported her to Kudjip hospital.

•	"I know this small girl, she is Jessica Kogun and her father was a senior primary school teacher. I know she is now handicap (sic) and she stays in her village and could not continue with her education."

 (iii) An affidavit by Doctor Timmy Tingnee of the Mt Hagen specialist Clinic, filed on the 18th of September 2013, who deposes:

•	He is a consultant surgeon with qualification of MB BS (Bachelor of Medicine) an M. Med (Master of Med.) (Surg)) who has "been practicing medicine for many years".

•	He states "I recall examining and reporting on one Jessica Kogun and furnished her report to her dated 11th of November 2002. The Report does confirm details of my examination and the treatment she got from the hospital".

•	The report states:

"The above-mentioned person sustained gunshot wound (GSW) to the left side and got admitted to the Kudjip Hospital on the 24th of June 2002. Examination revealed a compound fracture of the left femur. Due to extensive tissue and muscle damages as she had with the fracture the fracture did not unite (mal-union) as expected. Therefore an operation was performed and a plate (metal) and screws put in place to stabilize the fracture. A bone graft was done at the same time. She made an uneventful recovery and was discharged on the 27th of September 2002. 

When reviewed at the clinic recently she was carried into the rooms. She cannot be able to walk because the fracture has not healed up well. The thigh was also deformed indicating mal union.

The injuries have caused permanent disability and will not improve and she will live with it. It can also affect her growth as well. This is the result of extensive damage done by the gun blast."

 (iv) An affidavit by Shiela Takip, who was the Plaintiff's school teacher, filed on the 18th of September, 2013. She appended a report, dated the 31st of March 2011 on the Plaintiff. This report states, inter alia:

•	 When Jessica first commenced school "she is well discipline child who showed good behaviour and liked going to school to be educated".

•	Her attendance was satisfactory; there was only one absence in the first term and two in the second term.

•	She "would always appear well dressed from top down to shiny foot wear and usually clean and tidy at all times". Her teacher said she "always looked bright alert and eager to learn and very attentive and participated in every steps of various subject presented in lessons for achievement was to her credit."

•	Her teacher commented that that her manners and behaviour were "a polite manner with an acceptable behaviour and so humble with friendly face that her classmates and teachers and other children liked her."

•	After she was discharged from Kudjip hospital she returned to school one year later to continue and complete her grade 3 education.

•	"After two or three days of class I was very surprised and astonished to learn that her manner and behaviour was completely different", "she acted very strangely and had a unusual impression with watery eyes and worried face." The teacher said "Jessica just could not learn anything at all after the terrible accident".

•	Her attendance became irregular her appearance degenerated.

•	The report continues to speculate that "she would have gradually made her way up and achieve the high level of education for a bright and well being future".

(v) Three affidavits by the plaintiff's father, Francis Kogun, are:

 On the 16th of May 2005 he says:

•	His daughter was shot by uniformed police on the 24th of June 2002

•	He encloses newspaper reports

•	He encloses medical treatment notes from Kudjip and Mt Hagen Hospitals

•	He opposes the Defendants' application to enter a Defence out of Time

•	He makes a number of inadmissible assertions as argument

•	He encloses a report from a "private investigator" and a number of statements not in admissible form, which statements were not relied on at the substantive hearing and assessment

On the 3rd of April 2013, he deposes to costs he said he incurred and annexes receipts for medical fees (some of which were annexed to his earlier affidavit) and a number of undocumented out of pocket expenses – including a claim for payment to "middle men".

On the 16th of December 2013 he states that his affidavit "therefore super cedes" his affidavit of the 03 of April 2013.

I have examined all his affidavits with care and noted that the expenses claimed for which there is documentation in his name or stated to relate to the Plaintiff's treatment total K323.00.

There is a copy of an Air Niugini boarding pass for the deponent to fly to Port Moresby and back. The cost was K385.20. I do not allow this as part of the damages claim. It may be argued as part of a cost of trial (to be agreed or taxed) but I do not allow it as special damage of the action. 

Francis Kogun filed, in all, three affidavits concerned, primarily, either with the cost and expenses he claims to have undergone as a result of his daughter being shot, or to his personal loss of possessions. He makes no reference to his daughter's disability or injury other than as it may deprive him of money.

(vi) An affidavit, filed on the 3rd of March 2011, by doctor Allan Kulunga, MB BS and M. Med (Surg) who has been practicing in Papua New Guinea for many years and who examined the plaintiff and furnished a report, dated the 2nd of September 2010 in which he notes the reported injuries as a compound fracture of the upper femur and soft tissue injuries. The report states "she spent six months in hospital on treatments which included:

 1. Primary wound debridement

2. Open reduction with plate and screws in addition to the bone grafting to the structure 

 3. Antibiotics and daily physio until discharged
 
She now complains of some pain at wound and is unable to neither carry the heavy load nor take part in any village social activities" (sic).

The report continues, "clinically she came without any evidence of distress or locomotive impairedness. She is cooperative but is moody and slow in her actions.

 Examination reveals the following:

 1. An 18cm lateral upper thigh surgical scar

 2. 9cm x 5cm left bilateral bullet entry wound

 3. Fractures uppers united 

 4. No significant shortening 

 5. Quadriceps intact

 6. Knee and ankle joints intact

 7. No neurovascular deficits
 
In conclusion this girl suffered a compound fracture of her upper femur by a bullet. She underwent extensive surgery which has provided an excellent result considering damage the bullet did.

However, the great concern here is that she may not have recovered from the psychological shock and anxiety impressed on her as a result of the incident. I believe she requires an assessment from a psychiatrist to estimate her future wellbeing into adult life." 
 
(vii) An affidavit of Kilagi Vanuga, relating to a report of the 25th of August 2012. He states, in his affidavit:

"1. I am a medical officer in employment at the Goroka Hospital as a specialist consultant physician

 2. My qualifications are:

 MB BS – Bachelor of medicine and –

 and a bachelor of surgery 

 SMO in charge of psychiatric care"

 He states, "the future for Jessica Kogun is not bright, I have assessed her a 80% disability as a whole person and I have little doubt whether she will grow out of it. From my review of that report I do recall examining her and forwarded her that report." He annexes a report dated the 25th of April 2012.

 This report notes the history reported to him by the Plaintiff's parents and encloses two newspaper reports of the incident and of the Plaintiff's injury.
 
 He states "she is 18 years old now. The parents have noted the following impairments" and then list a number of things told to him by the plaintiff's parents. There is no record of him asking the plaintiff the history of her injury or, indeed, any record of what she was asked.

 He goes on to state,

 "My examination revealed:

•	Poor orientation to time 

•	Poor concentration

•	Not answering question, if was response usually an appropriate

•	No caring out commands

•	Unusual habit of poking her nose throughout the consultation

•	Significantly withdrawn from the surrounding at times

•	Poor recollection of the accident

•	Very poor cognitive function

 Jessica exhibits significant mental psychotic disturbance as the result of the alleged gunshot wounds. She suffers a POST TRAUMATIC STRESS DISORDER. She is still symptomatic ten years after the accident. She is likely to be mentally disturbed for the rest of her life.

 Jessica will never grow up to be a totally normal person. She is going to require someone to assist and look after her. The accident has significantly changed her life forever.

•	An award for physical and function loss estimated at eighty per cent (80%)."

9. The law which a court must consider in a case of this type includes, particularly, the pleadings filed and the presence and quality of the evidence brought to substantiate the claim as it has been pleaded.

10. In this case, liability was determined in favour of the Plaintiff by the Default Judgement entered on the 27th of May 2005.

11. In many cases over the years the Courts of Papua New Guinea (both National and Supreme Courts) have stated the fundamental proposition of the consequences of a Default Judgement on liabilities. This is that, although legal liability is established by the Default Judgement, the Plaintiff is still required to prove to the Court, on the balance of probabilities, that it suffered loss – and the extent or value of that loss.

12. To adopt a statement in Rosa Nimbil v Western Highlands Provincial Government (N5290). "The onus always rests with the plaintiff to satisfy Court that, because of the negligence of the Defendant, a consequence was that the Defendant's property was damaged and that damage gave rise to a loss which can be measured in monetary terms."

13. Some of the cases which deal with this proposition are Nari v The State (N2769); Paraia v The State (N1343); Eremugom v Tande (N2889); Kenziye & Ors v The State (N5424) and PNGBC v Tole (SC694). These all follow the authority of Bonham-Carter v Hyde Park Hotel Ltd (1948) TLR 177, which require evidence of proof of the damage suffered.

14. The Statement of Claim is pleaded, relevantly, in these terms:

2. The First Defendant is the Station Commander at Banz Police Station. He is responsible for all police actions or inactions in the Banz Police Station in the Western Highlands Province.

3. The Second Defendant is the Police Commissioner of Papua New Guinea and as such is the employee or agent or servant of the Third Defendant the Independent State of Papua New Guinea. He is responsible for all police actions or inactions throughout Papua New Guinea.

4. On the 25th of June 2002 at about 3pm the Plaintiff was shot at by a policeman in the company of unspecified number of policemen near the Banz Police Station without any good cause or reason. It is alleged that the police involved at the time where from the mobile squad, and other members of the Banz Police Station attached to the Western Highlands Provincial Police Unit.

15. I am satisfied that the Plaintiff, by naming the First Defendant, John Kolopen, the Police Station Commander at Banz and the Second Defendant Commissioner of Police by name, has established sufficiently the nexus between the tortfeasor who fired the shot as being a policeman and the nominal defendant, the Independent State. In this I rely on the examination of this point in the case of Marley Pyali v Chief Inspector Leo Kabilio & The State (N2492) and the binding Supreme Court decision of Lina Kewakali v The State (SC1091). But the pleading of particulars, especially the need to properly plead, in accordance with section 1 of the Wrongs Act, that the police were acting in the scope of their duty at the time the Plaintiff was shot, is defective. Vicarious liability, strictly speaking, is not properly pleaded and, on that basis, the Default Judgement stands on shaky grounds. It would clearly have been preferable for Default Judgement not to have been entered and for the issue to have been determined by evidence. Nonetheless, in the overall interest of doing justice, I shall exercise my discretion and consider the claim for assessment of damages on the basis that liability has been properly determined.

16. The Plaintiff is claiming, in the Statement of Claim:

"12. The Plaintiff a young child was in school. When she grows up, she is expected to reward her parents with bride price and also income whilst in formal or informal employment. These expectations are now shattered dreams as she is disabled. 

13. As the result of the said assault the plaintiff has and will incur costs and damages.

 Particulars of Costs 

 a. cost engaging legal representation

 b. cost of medical fees

 c. Cost of transportation, food and accommodation

14. As the shooting and wounding is unlawful the Plaintiff is entitled to exemplary damages

 And the Plaintiff Claims:-

 a. General damages

 b. Future economic loss

 c. Special damages

 d. Exemplary damages

 e. Interest at 8%, 

 f. Cost of the proceedings

 g. Any other or further damages the honourable court deems fit"

17. It should be noted that the term "general damages", for the purposes of pleading, means those items of claim which would normally be expected to arise and cannot be a surprise to the defendant. The amount of the claim (e.g. loss of future income) maybe a surprise, but the likelihood of such a claim cannot be. On the other hand "special damages" constitutes items of claim which would not be expected to flow as a matter of course. These may be lost expenses, loss of income to time of trial, loss of income consequential on being deprived of goods and particular (as distinct from general) loss of business.

18. Clearly, the medical fees and transportation referred to in this Statement of Claim are general damages by classification – as is future economic loss.

19. The pleading of this claim omits any claim for pain and suffering and loss of amenity of life. It proceeds, quite clearly, on the basis stated in paragraph 12 of the Statement of Claim that the significant loss is "when she grows up, she is expected to reward her parents with bride price and also income whilst in formal or informal employment. These expectations are now shattered as she is disabled."

20. Putting it plainly, this appears to be a claim by the parents (whose "expectations are now shattered") for money which they would have expected to obtain as bride price or from her when she was in employment. They are not parties to the action and cannot be recipients of any award. Any question of pain or of disability to the Plaintiff herself or her injury and the consequences seem to be entirely secondary to her father's "shattered expectations".

21. The case is put forward that the Plaintiff, as well as sustaining serious physical injury, has been left with a continuing and debilitating psychiatric condition which renders her disabled for normal every day living.

22. In support of this, the Plaintiff relies on an affidavit from a specialist consultant physician, Doctor Kilagi Vanuga, who says she has post traumatic stress disorder and makes "an award for physical and functional losses estimated at eighty per cent (80%)".

23. This evidence, along with that from Doctor Kulunga, may be thought of as the principle basis upon which the claim for assessment of the damages rests.
 
24. At the outset it must be noted that, if the plaintiff is disabled to the extent to which Doctor Vanuga states (80%), she is clearly incapable of rational conduct of her own affairs. In that situation any award made to her would have to be held in protective trust for her by the court and administered, to her benefit only, in a way to be determined by the court. An award to the Plaintiff to compensate her for her injuries is not an award to her parents because they have lost expectation of benefit of bride price and income from her work in the future. The care of an injured child should not be something done only for gain. It should be part of the traditional way of life in which, in Papua New Guinea society, all members of a family take responsibility for those who are unable to care for themselves. It is a duty to help those who cannot help themselves, not who will not help themselves. In addition, parents are supposed to care for their children through natural love and affection – not simply through the wish to gain money.

25. So, if the Plaintiff is, indeed, 80% functionally impaired, clearly any award the court makes must be subjected to a protective trust for the benefit of the disabled plaintiff.

26. This, as I have said, should be the situation if the court is satisfied the plaintiff is disabled to the degree claimed by Doctor Vanuga. To support this claim, the plaintiff relies on the affidavit of Doctor Vanuga to which I have referred.

27. This report, by a witness described as a "specialist consultant physician" is put before the court to support a diagnosis of "significant mental psychotic disturbance" and an evaluation of impairment "estimated at 80%". It is relied on as an expert opinion. It was not, of course, the subject of cross examination so can be assessed only on its contents.

28. According to the fourth edition of Stroud's Judicial Dictionary, an expert witness "is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a particular and special knowledge of the subject".

29. The subjects upon which a witness may be considered expert are many, and it is a matter for exercise of the court's discretion not only whether it accepts the witness as qualified to be viewed as an expert on the matter upon which he or she is to give evidence but, also, what weight can be given to evidence from the witness once the court is satisfied that, because of the special "study practice or observation" given by him or her to the subject, the witness has special knowledge sufficient for the Court to accept it as of an expert nature.

30. So, the first step to be taken is to qualify the witness – to satisfy the court that the witness has sufficient knowledge of the subject on which he is to give evidence to be viewed as expert. This is a necessary preliminary before the witness gives any evidence and it is a question of law for the judge, as tribunal of law, to decide if the witness is qualified to offer any expert opinion. Only after the judge is satisfied that the witness is qualified to offer evidence as an expert, does the question of the substantive evidence arise.

31. In this instance, the court has to consider if the opinion expressed by Doctor Vanuga in his report can be accepted as a valid evaluation by an expert of the Plaintiff's impaired mental functioning in everyday life and the degree of continuing disability of whole of body function. It only has the contents of his affidavit to go by.

32. To be credible, an expert opinion must clearly state the steps the witness took in evaluating the patient – starting with the patient's past medical records and history which must be considered as a preliminary to examination of the patient. This is so the expert witness can identify any inconsistencies between the account given by the patient and the facts referred to in the records of injury, treatment and results of treatment, before the witness examines the patient for assessment.

33. On examination, the medical expert should administer tests against objective standards (e.g. degree of flexion of a limb) and use this in calculating the degree of functional disability or impairment shown in the patient being examined. The result of the tests, and the tests themselves, should be clearly stated by the witness if the court is to accept the assessment of impairment.

34. In this case there is no evidence before the court of particular study, practice or experience by a specialist consulting physician relating to a study of psychiatric conditions. His affidavits states he is "SMO in charge of psychiatric care", but that bald claim is far from sufficient to show study of or practice and experience in psychiatric medicine. A dogmatic statement by a witness does not add weight to any evidence or credit to the witness. He has only stated an administrative title, not how he was qualified to fill it.

35. The evidence of this affidavit fails to address the issue of establishing the witness as any more then a man who holds degrees of bachelor of medicine and bachelor of surgery and who has "been practicing medicine for many years." The initial preliminary step of qualifying the witness as an expert was not taken.

36. Even if one disregards this major short-coming, the report, itself, fails to establish (other than from newspaper cuttings and hearsay from the Plaintiff's parents) the Plaintiff's objective pre-injury condition. There is no reference to clinical notes of prior treatment nor of reviewing earlier reports by other medical practitioners (whose affidavits where all filed before Doctor Vanuga's) nor is there any indication of an attempt to evaluate the patient's pre-accident condition by reference to her school teacher or any other disinterested party who knew her sufficiently well to express a view. No evidence is given of any objective tests or measurements being made upon which the witness based his assessment of disability. 

37. The opinion evidence of this witness (to which I have previously referred) fails to state what is a "significant mental psychotic disturbance" or to define what the term "post traumatic stress disorder" entails and how it could effect the Plaintiff's ability to function normally in her everyday activities.

38. In short, I am unable to accept the evidence of Doctor Vanuga as being that of an expert. There is no evidence that he is, as a matter of law, an expert. Further, I am unable to accept the opinion in his report – it is not a valid medico-legal report but a dogmatic assertion without any explanation of the basis upon which the statement is made.

39. I do accept the evidence of her physical injury and the conclusions reached by Doctor Kulunga of his physical examination of her. I note that he expressed the view that, when he saw her on or about 2nd of September 2010 and to which I particularly refer: 

•	"She came without any evidence of distress or locomotive impairedness: She is co-operative but is moody and slow in her actions."

•	"In conclusion, this girl suffered a compound fracture of her upper femur by a bullet. She underwent extensive surgery which provided excellent results considering the damage the bullet did."

He expressed concern that she may not have recovered from the psychological shock of the incident and recommended psychiatric assessment. 

40. I have already noted that the pleading of this claim completely fails to make any claim that, as the consequence of her wounding, the Plaintiff endured pain and suffering and continues to experience discomfort, or any pleading that she is unable to perform any of the normal day to day activities which a young woman of her age, education and background should be able to perform. I do, however, note that the Plaintiff has been badly injured and her enjoyment of life must be taken to be damaged.

41. The summary of this is that the Defendants have been found liable of the serious injuries to Plaintiff, then a child, when she sustained a gunshot wound. The shooting was quite without justification and appears to show a serious failure in command of the Royal Papua New Guinea Constabulary and basic control of its members. There is no evidence offered by the Defendants of the circumstances of this incident on the 22nd of June 2002 at Banz.

42. But, when assessing damages, the court is confined to admissible evidence to support the facts pleaded.

43. Although a claim is pleaded for future economic loss, there is no evidence at all of what economic activity the Plaintiff could reasonably be able to engage in if she were not injured. Nor is there any evidence of anything she currently engages in. That claim must fail. A claim of this nature needs to be strictly proved (see Banz Kofi Factory v Raymond Apa [2003] PNGLR 189) and there is no evidence which could be proof of this claim.

44. Evidence of the injury and its physical consequences is before the court in the affidavits of Doctor Tingnee and Doctor Kulunga. This indicates the serious wound which inflicted major injury to the Plaintiff's left femur requiring major orthopeadic surgical intervention. She was in hospital some three months and, in September 2010, Doctor Kulunga noted "she now complains of some pain at the wound and is unable to neither carry any heavy load nor take part in any village social activities" (sic). This, for the Court's purposes, is some evidence of pain and continuing physical disability and, although not pleaded, this evidence was not challenged by the defence. In view of the evidence of the extent of the injury I am able to accept that as sufficient evidence of some of the consequences which would arise, on the balance of probabilities, from the injuries described and take it into account in an assessment of damages.

45. The Statement of Claim also makes a claim for costs of medical fees, transportation and food and legal representation and produces, as evidence, three affidavits by the Plaintiff's father claiming:

•	Hospital expenses, doctors fees

•	Legal cost (which must be subject of agreement or taxation)

•	Purchase of a pig for Pora lawyers at K800.00

•	Travelling to and from Mt. Hagen and to and from Port Moresby on various occasions together with the meals and accommodation on those trips

•	"Undocumented stationary"

•	Private investigator costs

•	Loss through theft of possessions and livestock

•	Undocumented mobile telephone usage

•	All to a claimed total of K24,885.20, including a claim for payments to "middlemen".

46. There are receipts for medical and hospital expenses and reports and for typing and photocopying which I shall allow in the sum of K323.00. There is a ticket for a return air fare to Port Moresby. It is not allowed. It can be claimed as a cost of preparation for trial (to be determined on taxation of Costs), but not as an item of damages.
 
47. I do not allow items relating to gifts of pigs or loss of possessions and live stock through theft – they have no relevance to special damages which can be validly claimed as attributable to the actions of the Defendants.
 
48. General damages for the injuries and its consequences is a difficult matter – and more difficult to assess because of the sparse nature of the evidence and the barely adequate pleadings. The only evidence from the parents of the Plaintiff is from the Plaintiff's father who seems principally concerned about the loss of bride price and the expenses he says he has incurred. Notably lacking is any evidence from him or the mother or any siblings of the plaintiff about her conduct in life before she was shot and the lifestyle at or close to the time of trial.

49. A court should not be asked to guess such matters or to form an opinion on conjuncture and reach a decision based on other then admissible evidence at trial. The National Court is not a village mediation process. It is a superior court of record which must only act on evidence which is properly before it relevant to the issues pleaded and admissible by the long established rules of evidence. The best, and indeed, virtually the only evidence of the extent of the Plaintiff's injuries comes from Dr. Allan Kulunga, to which I have referred.

50. On the 02nd of September 2010 he noted "she now complains of some wound" and that was, unable to carry a heavy load and not take part in any village social activities. He also noted she came to be examined without evidence of distress or "locomotive impairedness". There was, in short, extensive injury and she had made a reasonable recovery. She still suffered some pain and, apparently, physical weakness. Dr. Kulunga does, however, note she may not have recovered from the physiological shock and anxiety of the wounding and he refers to the need for a physiological assessment "to estimate her future wellbeing."

51. The best a court can do with this evidence is to accept it as evidence of a serious injury to the Plaintiff's leg which has left her without "locomotive impairedness", but a now much weaken leg unable to bear heavy weight or vigorous actions. I shall accept this to be an injury equating to between 50 per cent and 60 per cent of loss of function of one leg.

52. The evidence of physiological impairment is much more difficult to assess. Dr. Kulunga refers to the possibility (in September 2010) that she may not have recovered from the physiological shock and anxiety of the incident. In August 2012 Dr. Vanuga stated he noted poor orientation to time, poor concentration and very poor cognitive function.

53. I am unable, for reasons I have stated, to accept his assessment of disability. But he is a qualified medical practitioner and has reported the observations to which I have referred.

54. Although I am unable to accept his assessment of the Plaintiff's disability, I do accept his observations of her behaviour at the medical examination and find that, without coming to a conclusion of the percentage loss of whole of body function, these are observations indicate that the Plaintiff is considerably physiologically debilitated and suffers participation restrictions in normal village life – whether from post traumatic stress disorder or not there is insufficient admissible evidence to say. Nor is it possible to say whether the condition was permanent or could resolve itself over time. No medical practitioner seems to have turned his mind to whether further treatment would alleviate the Plaintiff's condition in any way. I accept that she is physiologically disabled to the extent that she is unable to enjoy the amenities of life she should have been able to had she not suffered damage by the shooting.

55. There is very little precedent for this sort of situation in Papua New Guinea cases and thus sparse comparable verdicts to rely on. I propose, therefore, to proceed on the basis that at present the Plaintiff, by the combination of physical impairment to her leg and physiologically impairment to her mental processes, suffers about a fifty per cent disability in her everyday living.

56. There is no evidence of income loss, either present or future, so there can be no award under that head.

57. The claim, therefore, can only proceed on the basis of general damages and special damages. There is no evidence upon which to base an award of exemplary damages, although these are mentioned in the prayer for relief of the Statement of Claim.

58. The award of damages is an in globo award for pain and suffering and loss of amenity of life and is awarded on the basis of the sparse evidence in the medical witness' affidavits to which I have referred. Awards made in comparable cases are hard to find but I have regard to the following:-

•	In 1980, in the National Court, in Margret Darvill v MVIT [1980] PNGLR 548 award K19, 000.00 general damages to a plaintiff who had suffered a fractured vertebra in a motor vehicle accident. The plaintiff's physical mobility was restricted, she continued to suffer intermittent pain and she suffered physiological stress.

•	Sussana Undapmaina v Talair Pty Ltd [1981] PNGLR559. In this case the plaintiff was, at the age of 9, the sole survivor of an aircraft crash. She sustained fractures to both legs which were treated and which left minimal residual disability but there was continuing mental distress and physiological instability. The court awarded her K10, 000.00 for general damages for pain and suffering.

59. In the course of the judgement in Sussana Undapmaina, the judge noted that damages for nervous shock and physiological disorder rarely appeared as a separate and particular award, but form part of the in globo award for general damages. I propose to proceed in that manner.

•	In Kunjil On v The State [1986] PNGLR 286, the plaintiff sustained multiple injuries to his legs, back, hips and pelvis which resulted in an estimated 80 per cent residual physical disability of the lower limbs and back. His whole of body function is not stated and there is no suggestion of psychiatric problems. His award was K26, 000.00 but included some small amount for loss of income.

60. The court, of course, when considering comparable cases as a basis for assessing damages, cannot reach a decision by precise mathematical calculation. It must reach, in the words of the Supreme Court in MVIL v Meki Koi (SC902), "an estimate in money terms what one loss or injuries is, with the aim of trying to restore the loss as is possible to do."

61. In so doing, a court has to take account of inflation and changes in economic conditions in the country over the time since past awards were made. 

62. In 2004, the Supreme Court, in examining this principle in the case of Andrew Moka v MVIL (SC729) stated – "We are of the opinion that in the light of the high rate of inflation existing at the present time the courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation the award for general damages for pain and suffering ought to be much higher now than what the court was awarding in 1988 and 1989, when the above cases were decided".

63. With these principles in mind, therefore, I have made an award of general damages in an in globo figure of K55, 000.00. To this is added, for special damages, (as previously referred to) the sum of K323.00.

64. Finally, as I have said, this award is not, and should not be thought of as, money for the Plaintiff's father to make up for bride price and money he hoped the Plaintiff would bring him in future. This award is for the benefit of the Plaintiff alone.

65. The evidence shows the Plaintiff is disabled to the extent that she is not capable of the responsible care of her own interests. She is vulnerable young woman and there is a very high probability that greedy and unscrupulous people would take advantage of her and rob her of the money awarded to her unless the court takes appropriate steps to protect her and preserve the sum awarded to her use and benefit alone. It appears to me, from the evidence, that the situation and condition in life of the Plaintiff makes it not only desirable and expedient, but necessary, that the damages awarded should be protected.

66. Accordingly, I Order that the sum awarded as general damages (K55, 000.00) together with the interest payable on that sum to the date of payment by the Defendants, be paid to the Registrar of the National Court at Waigani, there to be held in trust for the sole benefit of the Plaintiff.

67. I direct that the Registrar of the National Court at Waigani for the time being and the Public Solicitor of Papua New Guinea for the time being be and act as trustees of this fund to release from it funds for the benefit of the Plaintiff only on their being satisfied by the production of sworn documentary evidence that the funds sought are bona fide expenses for the benefit of the Plaintiff only.

68. I further direct that should the Plaintiff's family or other people assert that she has recovered from her psychiatric condition to such an extent that she is now capable of managing her own affairs, funds are only to be released to the Plaintiff following a finding that she is now capable of managing her own affairs after an inquiry to whether she is or is not of an unsound mind pursuant to Division 3 of the Public Health Act.

69. The Orders of the Court are: 

The Defendants shall pay to the Plaintiff:

 (1) General damages in the sum of K55, 000.00, such sum;

 (a) to bear interest at the rate of 8% from the date of the service of the Writ and Statement of Claim on the Defendants;

 (b) To be paid to the Registrar of the National Court at Waigani, there to be held in trust for the sole benefit of the Plaintiff and payments from it to be released only upon the said Registrar for the time being and the Public Solicitor of Papua New Guinea for the time being together being satisfied that any payment out is for the bona fide benefit of the Plaintiff only;

 (c) Not to be released from the aforesaid condition without an Order under Division 3 of the Public Health Act that the Plaintiff is capable of managing her own affairs.

 (2) Special Damages in the sum of K323.00.

 (3) The Plaintiff's cost of incidental to this action to be paid by the Defendants, such costs to be taxed if not agreed. 

______________________________________________________________
Kopunye Lawyers: Lawyers for the Plaintiff 
Solicitor General: Lawyers for the Defendants