Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Kawage v Motor Vehicles Insurance Ltd [2016] PGNC 159; N6351 (24 June 2016)

N6351

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 60 OF 2010

BETWEEN

NUMABO KAWAGE
Appellant

AND
MOTOR VEHICLES INSURANCE LIMITED
Respondent

Kundiawa: Liosi, AJ
2016: 18^th April & 24^th June

CIVIL – Practice & Procedure – Appropriate Damages – Assessment – Pain, suffering and Loss of Amenities – Economic Loss – Assessment – Interest on Judgment Debt – Assessment – Cost of District Court proceedings – National Court Proceedings – Supreme Court proceedings.

Cases cited:

Aman v. Southern Railway Co. [1926] 1 KB 59 at page 72
Andrew Moka v. MVIL (2004) SC 729
Aundak Kupil v. The State (1983) PNGLR 350
Australia & New Zeland Banking Ltd v. The State [1986] PNGLR 57
Auwe Joe v. State [1988-1989] PNGLR 641
Armiger [1978] PNGLR 516
Costello v. Talair [1985] PNGLR 65
Kaka Kopun [1980] PNGLR 557
Make Kewe [1986] PNGLR 279
Nentepa Piam v. The State [1988-89] PNGLR 651
Nui v. MVIL [1992] PGNC 8
Pickett v. British Rail Engineering Ltd 3 WLR 955
Robert Younger Kerr v. MVIL [1979] PNGLR 251
Roselyn Cecil Kusa v. MVIT (2003) N2328
Shelly Kupo v. MVIT (2002) N2282

Counsel:

Mr. P. Kopunye, for the Appellant
Mr. K. J. Peri, for the Respondent

RULING

24^th June, 2016

1. LIOSI AJ: This is an action by the plaintiff claiming general damages for pain, suffering and loss of amenities of life, interest on the judgment debt from the date of issuance of proceedings to date of the order, 8% interest pursuant to section 3 of the judicial proceedings (Interest on Debts and Damages) Act from service of the order to settlement of the judgment debt, costs of the proceedings and the appeal CIA 60/2012.
   
2. The history of the proceedings is well documented and set out in the initial statement of claim as well as the submission of the plaintiff. The plaintiff/appellant sustained injuries in a motor vehicle accident in 1999. On 4^th April 2005, the plaintiff filed District Court proceedings claiming damages for pain suffering and loss of amenities of life, economic losses, special damages interest and costs. The defendant denied liability and quantum. I agree at the outset with the plaintiff’s lawyer that this was a very simple case that should have been easily settled had the matter been diligently attended to.
   
3. The District Court proceeding surprisingly was dismissed on the basis that the plaintiff did not discharge the onus of showing that the defendant was the insurer of the vehicle. The complainant /appellant appealed to the National Court. On 6^th November 2012, the National Court upheld the appeal by the complainant and directed written submission on damages to be assessed by the National Court.
   
4. The defendant then appealed to the Supreme Court. On 4^th July 2014, the Supreme Court dismissed the appeal affirming orders of the Kundiawa National Court. The matter now comes back to the National Court for assessment of the damages after over 9 years of protracted litigation. They include;
   • Assessment of damages for pain, suffering and loss of amenities of life and economic losses.
   • Assessment of interest on the judgment debt and;
   • Assessment of cost of District Court proceedings and the national court appeal proceedings.
     

Court’s Jurisdiction to Award Damages

5. The proceedings was filed in the District Court hence the laws governing the jurisdiction and limit of the claim need to be considered pursuant to Section 21 of the District Court Act –

Section 21. of the District Courts Act states – Civil Jurisdiction.

(1) Subject to this Act, in addition to any jurisdiction conferred by any other law, a Court has jurisdiction in all personal actions at law or in equity where the amount of the claim or the amount or value of the subject matter of the claim does not exceed –

• (a) where the court consist of one or more Principle Magistrates. – K10, 000.00; and;
  

Section 38 of District Courts Act – Demands not to be divided.

(1) A complainant shall not divide a cause of action for the purpose of ҈&<;< < matwng r more complaints bets before a court, but a complainant ټ&##60;&< < hav ng ae ofon foe tha amou amount for which a ; &  < &1160;& complaintlaint may be maderunder this Act, may –

(a) aba) abandon the excess by so stating in his his partiparticularculars of s of demandemand; and
• (b) recover to an amount not exceeding the amount that the Court has jurisdiction to award.
  

(2) The order of the Court on the complaint is conclusive evidence of abandonment of the excess and is in full discharge of all demands in respect of the cause of action, and entry of the order of the Court shall be made accordingly.

6. The National Court has the concurrent powers of the District Court to assess damages and award it in the range of the District Court’s Jurisdiction.
   

General damages for pain and suffering and loss of amenities of life.

7. The principles relating to the above damages are well established and set out in number of leading cases in our jurisdiction. The courts in this jurisdiction have made awards in similar injuries mentioned the above heads of damages. The case of Robert Younger Kerr [1979] PNGLR 251 discusses the general principles applicable on the assessment of general damages and Costello v. Talair [1985] PNGLR 65.

8. The issue therefore to determine is what is the appropriate damages the plaintiff should be entitled to? To start off with assessment of damages can only be for matters as pleaded and awards can only be made for matters pleaded and proven. To appropriately answer the above, it will be necessary to set out the background particulars of the plaintiff.

Background Particulars

9. The plaintiff an adult male married with dependents was aged 65 at the time of the accident in 1999. The plaintiff suffered fractures of the rib bones and was diagnosed by Dr. Kulunga at the Mt. Hagen general hospital with a 15% permanent disability in the effective use of his chest in terms of carrying heavy loads as a result of post traumatic arthritis.

10. In relation to general damages for pain and suffering and loss of amenities of life counsel has referred me to a number of precedent cases wherein courts have made similar awards for somewhat similar injuries as those sustained by the plaintiff;

1. Costello v. Talair [1985] PNGLR 65 where the Court awarded K18,000.00 to the plaintiff who suffered injuries to chest, five broken rib bones, laceration to face, part of the ear and shoulder injuries.
   
2. Nui v. MVIL ( 1992) PGNC 8, where the court awarded K6,000.00 for a man of forty years who had a 15 % disability resulting in chest injuries in a motor vehicle accident. This was considered a minimum award and the injuries considered minor.
3. Armiger [1978] PNGLR 516 where the court awarded K8, 500.00 to minor and a whiplash type of injuries which involved injuries to the right shoulder, arm, laceration to scalp, neck and gum. In that case there were no fractures of any bones.
4. In the case of Auwe Joe vs. State [1988 – 1989) PNGLR 641, where the court awarded K14, 500.00 in general damages plus K2, 697.00 in interest to the infant who suffered bleeding nose with multiple facial laceration and fracture of 4^th and 5^th rib bones resulting in a penetrating injury to the lung being causing pneumothorax (free air in the left lung and chest cavity); fracture to the left femur (thigh bone); cut to right achilles tender; and abdominal injuries.
   

General increase in settlement of claims to account for inflation

11. As a matter of practice and principle case authorities have also supported the notion that awards for general damages for pain and suffering ought to increase to reflect the inflation costs. Case authorities here have supported the above proposition that inflation is a relevant consideration in the assessment of general damages. In the English case of Pickett –v- British Rail Engineering Ltd (1978) 3 WLR 955, the court said;-

“Increase for inflation is designed to preserve the “real” value of the money, interest to compensate for being kept out of that “real” value. The one has no relation to the other. If the damages claimed remained, nominally the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same.”

This case was followed and cited with approval in various judgments in our jurisdiction. See the case of Aundak Kupil v. The State (1983) PNGLR 350, Shelly Kupo v. MVIT (2002) N2282 and Roselyn Cecil Kusa v. MVIT (2003) N2328. In the Supreme Court case of Andrew Moka v. MVIL (2004) SC 729, the Supreme court discussed the effect of inflation on assessment of general damages in the following manner;-

“We are of the opinion that in the light of high rate of inflation existing at the present time the court 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 than what the court was awarding in 1988 and 1998.... Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case.”

Appropriate Quantum for Complainant in General Damages

12. Having discussed the above what should be the award for the complainant in the current case?
    
    • (1) The complainant’s counsel submits that the range of awards in the above decided cases cited are some 10 years back, the value of kina has dropped, the costs of living has gone up and, so any award for this plaintiff should be much higher than the awards in the decided case cited;
      
    • (2) The award of K8, 500.00 in the case of Armiger was for minor injuries with no disabilities and any award here, must exceed K8, 500.00 and this case can be used as a yard stick.
      
    • (3) In the case of Nui v. MVIL the disability in chest is similar at 15%. K6, 000.00 was awarded in this case; the complainant has a further 15% disability in the use of his right hand/arm as well. Total damages will be more than K10, 000.00.
      

(4) Pursuant to section 38 of the District Court Act, the complainant forgoes so much of a claimable amount and claims a figure up to K10, 000.00 in general damages inclusive of economic losses. Having looked at the injuries and the comparable cases. I have no doubt in my mind that the amount of K10, 000 – is reasonable in the circumstances.

Economic Loss

13. On the issue of economic loss, the permanent disabilities the complainant has restricts the complainant from the level of subsistence farming, he would have engaged in otherwise has it not been for the accident. This was specifically pleaded in the statement of claim. In the case of Make Kewe [1986] PNGLR 279 the court held;

“In assessing damages for economic losses in respect of inability to perform normal village work and activities, local circumstances should be taken into account and where there is no evidence of specific loss but evidence of economic capacity, a fair reasonable assessment must be made"

In the case of Kerr v. MVIL (Supra) the court held at p. 251

"Once a reduction of economic capacity is established, even if there is no evidence as to the pre and post-accident possible earnings, trial judge must in general, assess some compensation, and in this regard, he cannot ignore the loss."

In the present case, the plaintiff has clinically and radiologically established from the medical reports that the plaintiff has a 15% disability in his chest and the plaintiff has therefore established his claim in economic losses by reference to the authority in the case of Make Kewe and Kerr.

14. In assessing the economic loss for the complainant has a limb post traumatic arthritis at the left hip and as a result of which he continues to have a 5 % disability in the effective use of the hip joint;

Considering the awards for economic loss in the present cases of Nentepa Piam v. The State [1988-89] PNGLR 651 and Kaka Kopun (Supra) I award the amount of K8, 000.00 based on the village level which shall be inclusive in the total award of K10, 000.00 for general damages. I award this amount noting that awards for economic losses made in the above cases are over 20 years old. The kina value has dropped and the cost of living has gone up drastically.

Interest

15. The complainant has claimed interest in the statement of claim and the complainant is entitled to an award of 8% per annum pursuant to section 3 of the judicial proceedings (Interest on Debts & Damages Act), from the date of issue of the summons (being the 4^th of April 2005) to the date of judgment or when the assessment is finalised. For the purpose of this submission and for calculation of interest, we have estimated the date of judgment or ruling to be by say the 4^th of April 2016. We will also assume that, the award of appropriate damages would be for K10, 000.00 being for general damages and economic losses all inclusive.

16. From 4^th April 2005 to 4^th April 2016, we calculate a total of (11) years or 4,015 days. Interest is therefore calculated as follows;-1/365 x K10, 000.00 (General damages & Economic loss x 8 % =K2.19 per day 4, 015 days x K2.19 per day = K8, 792.85 for interest on judgment debt as at 4^th April 2016.

I agree entirely with the calculation of counsel on the question of interest. I adopt and incorporate the amount calculated and order that it be paid.

The interest component of K8, 792.85 shall be merged into the judgment debt of K10, 000.00 for the general damages, and this will give a total sum of K18, 977.85, which will become the new total judgment debt.

17. This principle was applied by Justice Mc Dermott in the case of Australia & New Zeland Banking Ltd v. State [1986] PNGLR 57.

His Honour then accepted the same principle in the English case of Aman v. Southern Railway Co. [1926] 1 KB 59 at page 72.
The interest component of K8, 792.85 is no longer interest, once it gets merged into the award of K10, 000.00 for general damages, and it becomes the judgment debt. The complainant is then entitled to claim the normal 8% interest per annum on that judgment debt of K18, 977.85, from the date of the order of court or judgment, to the day of payment.

18. The Orders of the Court are as follows:

1. Judgment is entered for the Appellant in the sum of K18, 792.85.
2. The Respondent shall pay 8% interest per annum on the Judgment Debt from the date of the order to the time of settlement.
3. The Court further Orders that the Respondent shall pay cost of both the Kundiawa District Court proceedings and this Appeal CIA 60/2010.

Ruling and Orders Accordingly,

____________________________________________________
Kopunye Lawyers: Lawyers for the Appellant
Warner Shand Lawyers: Lawyers for the Respondent