N10111

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 517 OF 2018

BETWEEN
KULE BAGU
Plaintiff

AND
MOTOR VEHICLES INSURANCE LIMITED
Defendant

Waigani: Makail, J
2021:13th August, 19th November
2022: 11th March, 5th April
2023: 6th February

LIABILITY – Negligence – Motor vehicle accident – Personal injuries – Breach of duty of care – Contributory negligence – Inevitable accident – Proof of
 
ASSESSMENT OF DAMAGES – General damages for pain and suffering – Loss of vision of one eye – Permanent facial disfigurement – Special damages – Medical and associated costs 

Cases Cited:
MVIL v. Kawage (2014) SC1362
PNG Institute of Medical Research v. PNGBC (1999) N1934
Pomat v. Consort Express Lines Ltd (2020) N8300
Lubbering v. Bougainville Copper Ltd [1977] PNGLR 183
Wally v. Motor Vehicles Insurance (PNG) Trust (1992) N1029
Yalao v. MVIT [1997] PNGLR 441
Joseph Dikini v. John Wamei (1997) N1562
John Pias v. Michael Kodi & Ors (2006) N2972
Tony v. The State (2008) N3477
Kandakasi v. The State (2017) N6601
Awaparu v. Commissioner of Police & The State (2018) N7177
Andrew Moka v. MVIL (2004) SC729
Kol v. Shorncliffe (PNG) Ltd (2001) N2121
Lulug v. Michael (2020) N8585

Counsel:

Mr. T. Ilaisa, for Plaintiff
Ms. B. Kumo, for Defendant 

JUDGMENT
6th February, 2023

1.	MAKAIL J: This is a contested trial on liability and assessment of damages.  

Brief Facts

2.	The plaintiff claims damages for multiple personal injuries he sustained in a motor vehicle accident along Magi Highway in Central Province on 3rd August 2016 rendering amongst others, injuries and disabilities including 100% loss of vision in his right eye.

3.	The Court acknowledges the helpful written submissions of learned counsel for both parties in addition to their oral submissions addressing the issues for determination at trial. 

Evidence

4.	In support of the plaintiff’s claim the following affidavits were tendered and marked as exhibits:

•	Affidavit of plaintiff filed 26th February 2019 – Exhibit “A”;
•	Affidavit of Koiari Gini filed 26th February 2019 – Exhibit “B”;
•	Affidavit of Gandy Rotona filed 26th February 2019 – Exhibit “C”;
•	Affidavit of Fred Mune filed 26th February 2019 – Exhibit “D”;
•	Affidavit of Ken Pamenda filed 28th February 2019 – Exhibit “E”;
•	Affidavit of Dr. Takovi Maga filed 26th February 2019 – Exhibit “F”;
•	Affidavit of Dr. Lina Lep filed 28th February 2019 – Exhibit “G”; and
•	Supplementary Affidavit of plaintiff filed 15th November 2021 – Exhibit “H”.

5.	The defendant tendered no affidavits to rebut the evidence of the plaintiff and his witnesses.

Findings

6.	Based on the affidavits of the plaintiff, Koiari Gini, Gandy Rotona, Fred Mune and Ken Pamenda, the Court makes the following findings of fact:

(a)	The plaintiff is a primary school teacher, who teaches Grade 6 at Dakevakomana Primary School in Rigo District in Central Province.

(b)	On 3rd August 2016 the plaintiff travelled in an open back Land Cruiser bearing registration no: CBA 236 from Port Moresby to Dakevakomana village in Rigo District along Magi Highway.  The plaintiff was seated at the back trailer directly behind the driver’s seat.

(c)	When the motor vehicle got to Kovoro village and as it was climbing up a steep hill it began to lose power, then stopped and began rolling backwards picking up momentum as it descended downhill.

(d)	The motor vehicle then violently swerved and overturned on the side of the road, throwing the plaintiff and other passengers out of it.

(e)	Prior to the accident the motor vehicle encountered mechanical problems which prompted the driver to stop two or three times along the way.  Despite being aware of the mechanical condition of the engine and/or brakes, the driver continued the journey to Dakevakomana village.

Issues

7.	The contentious legal issues presented for determination are as follows:

(a)	Whether the plaintiff gave notice to the defendant of his intention to make a claim for damages prior to the filing of this action.

(b)	Whether or not the subject motor vehicle with registration no: CBA-236 was insured by the defendant.

(c)	Whether the accident giving rise to the plaintiff’s injuries and damages arose because of an inevitable accident.

(d)	Whether the injuries and disabilities sustained by the plaintiff are a result of the negligence of the driver and owner of the motor vehicle.

(e)	Whether the plaintiff’s injuries and disabilities were solely or partly caused because of his own negligence.

(f)	How much should be awarded as damages to the plaintiff?

Notice of Claim

8.	The plaintiff refers to his supplementary affidavit and submits that it provides evidence of him serving his written notice dated 19th January 2017 of his claim for compensation on the defendant.  The letter was served on the same day.  Service was within six months required under the Motor Vehicles (Third Party Insurance) Act, Ch 295 (“MVIT Act”). However, the plaintiff did not produce the actual letter dated 19th January 2017.  

9.	He does produce a letter from the defendant dated 14th February 2017 which acknowledged receipt of his letter to the defendant dated 19th January 2017.  He submits that the defendant’s letter dated 14th February 2017 confirms that he had served a notice of claim on the defendant to comply with Section 54(6) of the MVIT Act.  The defendant submits otherwise, that there is no evidence of a notice of claim given to it.  And that, its letter dated 14th February 2017 does not constitute notice within the meaning of Section 54(6) of the MVIT Act.

10.	That may be so, but the defendant does not deny receiving a letter of notice from the plaintiff dated 19th January 2017.  Neither does it deny acknowledging the letter of notice in its letter of response dated 14th February 2017.  It should be noted that the letter from the defendant dated 14th February 2017 has:

(a)	been addressed to the plaintiff,
(b)	titled “Your Claim”,
(c)	acknowledged receipt of a letter from the plaintiff dated 19th January 2017, and 
(d)	Asked the plaintiff to provide original treatment notes and clinic book for the defendant’s inspection and return.

11.	On the evidence of the reference to the letter of 19th January 2017 and acknowledgment by the defendant in its letter of 14th February 2017, the Court is satisfied that the plaintiff gave notice of claim in a letter dated 19th January 2017 to the defendant and has complied with the precondition in Section 54(6) of the MVIT Act.  Therefore, this proceeding is competent.

Insured Motor Vehicle

12.	Learned counsel for the plaintiff refers to paragraph 6(d) of the amended statement of claim and submits that the plaintiff has pleaded that the subject motor vehicle was insured by the defendant.  

13.	Marked as annexure “A” to the affidavit of Ken Pamenda is a copy of a Police Accident Report. The member of the police named as Ken Pamenda investigated the accident and prepared this report.  It contains the particulars of the motor vehicle and how the accident occurred.  

14.	The defendant does not contest the existence and veracity of this report.  In fact, learned counsel for the defendant abandoned submissions in her written submissions to contest the issue of insured motor vehicle.  

15.	The Court accepts learned counsel’s submission that the Police Accident Report is sufficient for the purpose of proving that the motor vehicle was insured.  As the Supreme Court in MIVL v. Kawage (2014) SC1362 held:

 	“2)	The relevant standard of proof is on the balance of probabilities.

3)	In some circumstances it will be necessary to prove that the vehicle was insured, and in proving that it will  not always be necessary to produce in evidence a certificate of insurance, for example where a police investigating officer gives evidence of details of insurance and MVIL does not take the opportunity to effectively rebut that evidence, a Court is entitled to find that the onus of proof has been discharged and that in fact the vehicle was insured.

4)	There is no rule of law or practice that the onus of proving that a vehicle is insured can only be discharged by presentation of a certificate”.

16.	Given the concession by the defendant and on the evidence of the Police Accident Report, the Court is satisfied that the plaintiff has discharged the onus of proof that the subject motor vehicle was insured by the defendant at the time of the accident.

Negligence

17.	It is the plaintiff’s allegation that the owner and driver of the subject motor vehicle were respectively negligent in the handing and/or maintenance of subject motor vehicle which resulted in the accident.

18.	The particulars of negligence against the owner are as follows:

(a)	failed to take any adequate precautions for the safety of the plaintiff and other passengers by ensuring that the motor vehicle was roadworthy.

(b)	failed to service the motor vehicle which could have reduced the risk of exposing the plaintiff and other passengers to risk of injury or peril.

(c)	exposed the plaintiff to risks of injury which could have been avoided by reasonable care on his part.

(d)	allowed the driver of the motor vehicle to pick up passengers including the plaintiff knowing well that his motor vehicle had mechanical problems.

19.	The particulars of negligence against the driver are as follows:

(a)	failed to stop the journey and ask other road users for assistance knowing that the motor vehicle had mechanical problems.

(b)	failed to stop the journey and call the owner of the motor vehicle to arrange for a two-truck to two the motor vehicle.

(c)	failed to stop the journey and allow the plaintiff and other passengers to seek alternative transport.

(d)	advised the plaintiff and other passengers that the motor vehicle was unroadworthy and that they make their own journey home.

(e)	exposed the plaintiff and other passengers in a position of great peril in the circumstances.	

20.	There is no question that an owner of motor vehicle has a duty of care to ensure that the motor vehicle is roadworthy.  The duty of care includes ensuring that the motor vehicle is serviced, repaired and maintained at all times.  The owner must also not allow the motor vehicle to be used where it has a mechanical problem.

21.	Similarly, a driver of motor vehicle has a duty of care to the passengers and road users to stop the journey and ask road users for assistance knowing that the motor vehicle had mechanical problems, stop the journey and call the owner of the motor vehicle to arrange for  tow-truck to tow the motor vehicle, stop the journey and allow the plaintiff and other passengers to seek alternative transport and advise the plaintiff and other passengers that the motor vehicle was unroadworthy and that they would make the journey home on their own.

22.	The Court accepts learned counsel’s submission that when a motor vehicle continues to encounter a mechanical problem on the road on more than one occasion, it is reasonable to infer that the mechanical problem is an existing or subsisting one and the owner of the motor vehicle was aware of it.  The same inference cannot be made of the motor vehicle encountered one isolated instance of mechanical problem.

23.	Learned counsel for the plaintiff submits that the undisputed fact that the driver of the motor vehicle stopped the motor vehicle on three different occasions throughout the trip so that he could check a mechanical fault in the motor vehicle showed that the motor vehicle was unroadworthy.

24.	The Court accepts learned counsel’s submission that when a motor vehicle continues to encounter a mechanical problem on the road on more than one occasion, it is reasonable to infer that the mechanical problem is an existing or subsisting one and the owner of the motor vehicle was aware of it.  The same inference cannot be made of the motor vehicle encountered one isolated instance of mechanical problem.

25.	Based on the evidence, the Court is satisfied that the owner of the motor vehicle and the driver who drove the motor vehicle breached their duty of care owed to the plaintiff as one of the passengers and were negligent.  The owner was negligent when he allowed an unroadworthy motor vehicle on the road and transported the passengers, and the driver was negligent when he continued the journey with a faulty motor vehicle.

Contributary Negligence

26.	The defendant pleaded and relied on contributory negligence as an alternative defence at [5] of its statement of defence filed 10th September 2018.  As a general rule of evidence in relation to contributory negligence a party who relies on contributory negligence must adduce appropriate evidence to substantiate its claim for contributory negligence of the other party: see PNG Institute of Medical Research v. PNGBC (1999) N1934 and Pomat v. Consort Express Lines Ltd (2020) N8300.

27.	In relation to its application, the basic principle which has been applied in this jurisdiction is that:

“if a plaintiff fails to make a reasonable care of his own safety the defendant cannot rely upon that failure unless a casual connection between the plaintiff’s conduct and his injury is shown.  The causal connection must exist not merely between the injury and the plaintiff’s negligent act, but between the injury and that aspect of his conduct which is negligent.  If the occurrence is unrelated to the rule of prudence, he violated his negligence cannot be held against him.” Lubbering v. Bougainville Copper Ltd [1977] PNGLR 183 applied in Pomat v. Consort Express Lines Ltd (supra).

28.	The defendant relies on the following allegations of fact in its statement of defence to constitute contributory negligence.  The plaintiff:

(a)	consented to get on a motor vehicle that was unroadworthy when signs of roadworthiness of the motor vehicle were shown on three different occasions along their trip.
		
(b)	consented to get on a motor vehicle that was not designed to carry passengers.

(c)	failed to wear a seat belt.

(d)	sitting on the back tray of the motor vehicle, failing to warn the driver to slow down and apply brakes to avoid the accident.

	(e)	failed to take adequate care of his own safety.

29.	As to the allegation that the plaintiff consented to board a motor vehicle that was unroadworthy, the Court accepts learned counsel for the plaintiff’s submission that the knowledge of the un-roadworthiness of the motor vehicle only became apparent to the plaintiff after the motor vehicle departed and during the trip between Port Moresby and Dakevakomana village. 

30.	As to the allegation that the plaintiff failed to wear a seat belt, sat at the back tray of the motor vehicle and consented to get on a motor vehicle that was not designed to carry passengers, thus exposing himself to a foreseeable risk of injury, the Court accepts the submission of learned counsel for the plaintiff that the mere act of voluntarily riding in the back tray of an open back motor vehicle especially when the open back motor vehicle is being used to carry passengers at the back is not capable of establishing that the plaintiff contributed to his own injury.  As Woods J described in Wally v. Motor Vehicles Insurance (PNG) Trust (1992) N1029:

“The vehicle involved was not designed for the safe carriage of passengers it had no proper seating for people, it is designed for carrying goods and cargo. However, the owner and driver clearly made it a practice to use the vehicle to carry passenger so they must be partly responsible”.

31.	The Court accepts that the carriage of people on the back-trays of open-back motor vehicle is a norm in PNG society, not out of ignorance but necessity and practicality.  PNG is not a first world nation that has good-sealed roads from the cities or provincial towns, right out to the outer district.  The sad reality is that most outer districts do not have sealed roads.  They have dirt roads with potholes.  The bad road conditions are not designed for coaches or buses and so experience and practice in PNG has been that open-back four-wheel drive motor vehicles are the most suitable mode of public transport.  

32.	The Court further accepts the submissions of learned counsel for the plaintiff that the proposition that, an open-back motor vehicle is not designed to carry passengers at the back tray and therefore, anyone who voluntarily rides in the back-tray puts himself in risk of danger, is hypothetical to PNG’s circumstances and cannot be a sound basis for the application of the defence of contributory negligence.

33.	Applying the principle in Lubbering (supra) and adopted in Pomat case (supra), for the defendant to establish contributory negligence, there must be a certain aspect of the plaintiff’s conduct when seated at the bank that contributed to the injury he sustained.  The plaintiff was seating in the back-tray and remained in the motor vehicle despite it stopping up hill and as it was moving back downhill until it overturned.  

34.	The Court accepts learned counsel for the plaintiff’s submission that there is no evidence that the way the plaintiff sat in the back-tray of the motor vehicle was negligent. For example, if he sat or stood on the edge of the back-tray of the motor vehicle which is a common place where people sit or stand when the motor vehicle is overloaded with passengers and cargo.  In Wally v. Motor Vehicles Insurance (PNG) Trust (supra) the plaintiff sat in the back-tray of the motor vehicle but on a tyre.  Anyone who has been in contact with the motor vehicle would know how physical properties of elasticity work.  It was not the best object to sit on especially when travelling on a rough road with potholes.  

35.	As Woods J in Wally v. Motor Vehicles Insurance (PNG) Trust (supra) stated:

“there must still be some responsibility on the people concerned for their own safety and to ride in a safe manner on the back.  To sit on an unstable or unfixed object is not a safe method of riding in the back of such a vehicle especially over roads that are not even or sealed.  So, the plaintiff was clearly negligent in sitting on what appears to have been a loos spare type while the vehicle was travelling along an unsealed and potholed road……..

If therefore I find that is negligence in the manner of driving of the vehicle however, I also find there was contributory negligence in the way the plaintiff was siring on the back of the vehicle.  I assess the contributory negligence at 50%”.

36.	The Court is not satisfied that the defendant has discharged the burden of proof that the plaintiff contributed to his own injury.  Consequently, the defence of contributory negligence is dismissed.

Inevitable Accident

37.	A further defence the defendant pleads and relies on is inevitable accident at [7] of its statement of defence filed 10th September 2018.  Inevitable accident is a complete defence in negligence claims.  A simple distinction between intentional tort, negligent torts and inevitable accident is found in Fleming’s The Law of Torts 9th ed. LBC where it is stated: 

“An intentional tort, properly so called, is one which the wrongdoer either desires to bring out a result which is an injury to another, or believes that the result is substantially certain to follow from what he does.  A negligent tort is one where the defendant, as a reasonable person, should have foreseen that his conduct involved a foreseeable risk, though falling short of substantial certainty that such a result would ensue.  Inevitable accident finally, refers to cases where the consequence was neither intended nor probable as to make it negligent”.

38.	The test to establish the defence of inevitable accident is that the defendant must establish that the consequences of the act were not intended; and the act could not have been avoided even by taking due care in the prevailing circumstances.  See RP Balkin and JLR Davis Law of Torts, Lexis Nexis, Butterworths, Australia, 2013 at p. 132.

39.	The Court notes that the facts as found in the present case tell a different tale to that which the defendant asserts in the alternative defence.  The Court accepts that during the trip from Port Moresby to Dakevakomana village along Magi Highway, the driver of the motor vehicle made not just one but three stops at different locations along the road to attend to a mechanical fault then continued the journey.  

40.	This ordinarily implies four important facts:

(a)	the motor vehicle had an existing mechanical problem prior to the journey.

	(b)	the owner and driver had knowledge of the fact.	

(c)	the owner had the opportunity to fix the problem prior to releasing his motor vehicle for hire, but chooses not.

(d)	the driver made a conscious decision to embark on and continue the journey despite knowledge of the un-roadworthiness of the motor vehicle.

41.	Learned counsel for the plaintiff submits and the Court accepts that this was not a case where the accident was inevitable.  On the contrary, the driver was aware of the condition of the motor vehicle and at all material times, it was within his power to make a judgment call on whether to continue the journey or ground the motor vehicle and seek help from a mechanic.  He chose instead to continue the journey with a mechanical problem.

42.	The Court is not satisfied that the defendant has discharged the onus of proof that it was an inevitable accident, and this defence is dismissed.

Assessment of Damages

43.	In the amended statement of claim filed 28th August 2018 the plaintiff pleads and claims the following heads of damages:

(a)	General damages for pain and suffering.

(b)	General damages for loss of amenities.

(c)	Damages for economic loss (past and future).

(d)	Damages loss of future employment benefits and allowances.

(e)	Special damages.

(f)	Interest.
	
(g)	Costs.

General damages for pain and suffering

44.	According to the amended statement of claim filed 28th August 2018 the plaintiff pleads the type and extent of his injuries and disabilities as follows:

(a)	Gross facial swelling with bilateral periorbital ecchymosis.

(b)	Lacerated occipital wounds.

(c)	Loss of sight in the right side.

(d)	Depressed nasal bridge.

(e)	Blood-stained nostrils.

(f)	Open wound to right heel.
	
(g)	Severe trissmus with 6cm left buccal laceration.

(h)	Leforte III fracture of the midface via the right lateral orbital rim, the orbit, medial orbital rim, and nasal bone.

(i)	Leforte II fracture of the left facial region involving maxilla and the zygomatic arch.

(j)	Open fracture of the left mandible at the angle.

45.	The uncontested report of Doctor Takovi Maga which the Court accepts, and finds is that the plaintiff suffered multiple facial injuries inclusive of soft tissue injury and factures to the skull and left jawbone.  The plaintiff received medical treatment where the Intra oral Buccal laceration was debrided and repaired, fractured mandible was reduced, fixed, and immobilised with arc bars and intermaxillary elastic tractions.  Finally, the facial le forte fracture were not surgically corrected due to expected poor outcome and high risk of cerebrospinal fluid leakage.  Instead, le forte fractures were conservatively reduced and immobilised with crepe bandage sling.

46.	The Court accepts learned counsel for the plaintiff’s submission that there are two broad categories of injuries causing the plaintiff’s severe pain and suffering and two different awards are appropriate.  The first is in relation to the eye injury to the right eye.  The second is for the head and facial injuries.  

Eye Injury 

47.	According to the medical report and not from the Ophthalmologists report the plaintiff suffered 10% loss of vision on the right eye.  A quick survey of past cases for loss of vision of one eye shows that awards were between K30,000.00 and K85,000.00.  Both learned counsel for the parties cites some of these cases in their respective submissions.  For example, in Yalao v. MVIL [1997] PNGLR 441 K30,000.00 was awarded for pain and suffering and loss of amenities.  K1,000.00 was awarded for other cosmetic injuries.  In Joseph Dikini v. John Wamei (1997) N1562 the Court awarded K35,000.00 to the plaintiff in general damages for pain and suffering for loss of vision of one eye.  

48.	In John Pias v. Michael Kodi & Ors (2006) N2972, a 42-year-old male plaintiff lost 100% vision of right eye after being assaulted by three members of the Defence Force and was awarded K60,000.00 while in Tony v. The State (2008) N3477, the plaintiff lost 100% vision of left eye when he was struck by a loose tyre wire following collapse of a foot bridge. He was awarded K50,000.00 for pain and suffering and loss f amenities.

49.	In Kandakasi v. The State (2017) N6601 the plaintiff was assaulted by members of the police and lost 100% vision of the right eye.  He was awarded K85,000.00 and in Awaparu v. Commissioner of Police & The State (2018) N7177, the plaintiff was shot on his left eye by a member of the police and lost 100% vision of that eye.  He was awarded K80,000.00 for pain and suffering and loss of amenities.  

50.	The Court accepts learned counsel for the plaintiff’s submission that based on Andrew Moka v. MVIL (2004) SC729, it is open to the Court to increase the award for the purpose of inflation.  It is noted from the above cases that the recent trend is that general damages of 100% loss of vision of one eye were between K50,000.00 and K80,000.00 within a span of 10 years for the period between 2008 and 2018.  Learned counsel for the plaintiff submits that an increase in the award by K20,000.00 from the latest award of K80,000.00 to account for inflation will give a total sum of K100,000.00. The Court accepts learned counsel’s submission and award a sum of K100,000.00 for loss of vision of right eye.

Head and Facial Injuries

51.	In addition, learned counsel for the plaintiff submits that the plaintiff seeks damages for soft tissue injuries to his face and back of the head including his heel.  He refers to Yalao v. MVIT (supra) and submits that the Court awarded general damages of K1,000.00 for other cosmetic injuries which were distinct and unrelated to the eye injury.  Learned counsel for the defendant submits that this head of damages is a duplication of general damages for pain and suffering and should be refused.

52.	The Court notes that damages for loss of amenities is distinct from damages pain and suffering.  It is awarded to compensate a plaintiff for losing the ability to enjoy life and activities following an injury.  It follows that the Court accepts learned counsel for the plaintiff’s submission that it is open to the Court to award general damages for loss of amenities.  In the present case learned counsel submits that the plaintiff suffered a depressed nasal bridge and multiple facial fractures (le fort fractures) and mandible facture.  The uncontested evidence from Dr. Takovi Maga and further verified by the photographs of the plaintiff’s facial injuries which the Court accepts is that, “ ….his facial profile has been grossly altered due to multiple facial factures….. He has suffered gross physical and psychological trauma and loss of facial profile.”

53.	As to facial disfigurement and effect it has on a person, in Kol v. Shorncliffe (PNG) Ltd (2001) N2121 Hinchliffe J stated:

“The plaintiff has suffered a permanent injury to his nose which has left him with nasal speech and some problems with his breathing.  In fact, his nose is noticeably permanently bent and because of hat he suffers embarrassment and shame.  His embarrassment should not be taken lightly as any disfigurement to a person’s face is extremely embarrassing for that person and even though the disfigurement may not appear so bad and unsightly to an observer, that is no consolation to the person with disfigurement who quite often feels shy, ashamed, and embarrassed and feels that many people are staring at him and making insulting comments.  Some people with a facial disfigurement become quite withdrawn and have no joy in going out in public”.

54.	In Kol v. Shorncliffe (supra), his Honour awarded K9,500.00 as damages for pain and suffering for the disfigurement of the nose.  In the present case a sum higher than K9,500.00 is being proposed because of the multiple facial fractures, mandible fracture and lacerations to the top and back of the plaintiff’s head.  

55.	The Court accepts learned counsel for the plaintiff’s submission that any injury to the face or skull has the potential to be traumatic.  After all, the skull houses the brain, while the face is the focal point of all interactions with other fellow human beings including looking into the mirror.  The face or facial appearance connects a human to another human, whether through a fleeting glance, face to face meeting or a Facebook profile picture.  It is accepted that the plaintiff now lives in the shadow of his hideous scars and disfigured face and dark glasses worn to cover his eyes since his recovery.

56.	Learned counsel for the plaintiff further submits that based on the multiple facial injuries, the starting point is a sum of K20,000.00 as a sum that would be awarded in 2001.  Then considering that Kol v. Shorncliffe (supra) was two decades ago and applying inflation, it should be increased by K20,000.00 for each decade thereby bringing it to K60,000.00.  The Court accepts learned counsel’s submissions and awards K60,000.00 for this head of damages.

Damages for distress and anxiety 

57.	Learned counsel for the plaintiff makes no submissions for this head of damages.  Learned counsel for the defendant submits that it should be refused because there are no pleadings and evidence adduced to establish it.  As learned counsel for the plaintiff makes no submissions for this head of damages, it will be regarded as being abandoned and a determination is not necessary.

Damages for Economic Loss 

58.	Learned counsel for the plaintiff submits this head of damages is abandoned because the plaintiff continues to teach at the local primary school.  Given this, a determination is not necessary.

Loss of future employment benefits and allowances

59. 	Similarly, learned counsel for the plaintiff submits this head of damages is abandoned because the plaintiff continues to teach at the local primary school.  Given this, a determination is not necessary.

Special damages

60.	Learned counsel for the plaintiff submits the plaintiff seeks special damages of K1,915.00 for out-of-pocket expenses.  Learned counsel for the defendant concedes that the plaintiff be awarded this head of damages but in the sum of K1,645.00. 

61.	The Court notes that the plaintiff gave evidence in his affidavit (exhibit “A”) and produced receipts of payments to support the sum sought in the following:

	(a)	Medical Expenses

-	consultation/ admission/ Pom General Hospital – K70.00
-	Medical/dental report Pom General Hospital – K150.00
-	Final medical report – K200.00
-	Eye report – K100.00

(b)	Food expenses – K750.00
(c)	Photocopying & Typing documents – K170.00

(d)	Transportation costs – K450.00

		Total sum claimed – K1,915.00

62.	The Court accepts the plaintiff’s evidence and finds that he incurred a total sum of K1,915.00 as medical and associated costs and award this sum.

Summary of Awards

63.	The awards are as follows:

	(a)	General damages for pain and suffering:

-	100% loss of vision in right eye 		 – K100,000.00
-	Facial disfigurement & soft tissue injuries – K 60,000.00 

(b)	Special damages  					 – K   1,915.00 

		Total 							     K161,915.00

64.	Given the threshold limit for bodily injury from a motor vehicle accident is K150,000.00 under Section 49(2)(a)(i) of the MVIT Act, the Court will award K150,000.00.

Interest

65.	Learned counsel for the plaintiff submits the plaintiff also seeks interest at the rate of 8% calculated from the date of cause of action to the date of judgment of the Court.  The cause of action arose on 3rd August 2016.

66.	Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015 gives the Court discretion to award or refuse to award interest.  If it decides to award interest, it may decide what rate of interest it will award, when interest will run, and on whole or part of the debt or damages.  

67.	In this case the Court notes that the writ of summons was filed on 7th May 2018.  The plaintiff does not explain why it took about two years to file this proceeding.  For this reason, the Court will award interest at rate of 8% from date of issue of writ of summons to date of judgment and until final settlement in accordance with Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.

Costs

68.	Finally, learned counsel for the plaintiff submits the plaintiff seeks costs of the proceedings such costs may be awarded in a fixed sum of K10,000.00 consistent with the decision in Lulug v. Michael (2020) N8585. In that case, the Court awarded a fixed sum of K10,000.00 as a matter of course.  

69.	The Court is not satisfied that there is an exceptional reason to depart from the conventional practice under Order 22 of the National Court Rules and award costs at a fixed sum.  Costs are awarded to the plaintiff on a party/party basis, to be taxed, if not agreed.

Order

70.	The formal terms of the final order are:

	1.	Judgment on liability is entered against the defendant.

2.	Judgment on damages is entered against the defendant in the sum of K150,000.00 as general damages for pain and suffering, loss of amenities and special damages.

3.	Orders sought for awards in general damages for distress and anxiety, economic loss and loss of future employment benefits and allowances are being abandoned.	

4.	Judgment on interest at rate of 8% is entered on the total judgment sum of K150,000.00 from date of issue of writ of summons to date of judgment and until final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interests on Debts and Damages) Act, 2015.

5.	The defendant shall pay the plaintiff’s costs on a party/party basis, to be taxed, if not agreed.
_______________________________________________________________
Public Solicitor: 	Lawyers for Plaintiff 
Jema Lawyers:	 Lawyers for Defendant