SC2273

PAPUA NEW GUINEA
[IN THE SUPRME COURT OF JUSTICE]

SCA NO. 152 OF 2019

BETWEEN
NICHOL COLBRAN
First Appellant

AND
CHRISTOPHER COLBRAN
Second Appellant

AND
KATARI ILAISA
First Respondent

AND
ISAAC MANI
Second Respondent

Waigani: Makail, Miviri & Tusais, JJ
2022: 27th July & 5th August

SUPREME COURT APPEAL – Appeal against award of damages – Trial on assessment of damages – Personal injury – Loss of left leg – Amputation of left leg – Award of general damages – Award of special damages – Medical costs and out of pocket expenses – Excessiveness of awards 
SUPREME COURT APPEAL – Appeal against award of interest – Rate of interest – Period of interest – Interest awarded at 8% – Interest awarded from date of issue of writ to date of judgment on assessment of damages – Judicial Proceedings (Interest on Debts and Damages) Act, 2015 – Section 4
Facts
The first respondent sustained a wound to his left leg from pellets discharged from a shotgun by the second appellant.  Following a trial, liability was entered against the second appellant.  The trial Court awarded general damages, special damages, and interest at rate of 8% per annum from the date of incident to the date of judgment on assessment of damages. The second appellant appealed the awards as being excessive. In respect of general damages, one of the grounds of appeal was that the first respondent contributed to his injury and the trial Court failed to apportion damages.  As to special damages, as they required strict proof, there were no receipts of payments to support the sum awarded.  As to award of interest, the second appellant claimed that the trial Court erred in not awarding interest in the conventional way, that is, interest from the date of issue of writ to date of judgment on assessment of damages.
Held:
1.	As the second appellant did not plead and rely on contributory negligence in his defence, the trial Court made no finding in relation to contributory negligence.  As there was no finding that the first respondent contributed to his injury the trial Court made no error when it did not apportion damages. 
2.	While the second appellant did not intent to cause injury to the first respondent, an above knee amputation is generally considered to be more serious than a below knee amputation of the left leg and a sum within the range of K100,000.00 is fair and reasonable to compensate the first respondent for pain and suffering. No identifiable error has been established.
3.	General damages for breach of human rights are awarded for breaches of basic rights and freedoms of an individual under the Constitution.  The trial Court found that there were no breaches of human rights and correctly did not award any damages for breach of human rights.  The sum of K100,000.00 was awarded for general damages in tort.
4.	The award of K100,000.00 was based on the finding that the first respondent suffered loss of use of one leg as a result of an above-knee amputation to his left leg. This finding was based on the first respondent’s evidence and supported by photographs of his wound. 
5.	As special damages required strict proof and there were no receipts of payments produced, the trial Court awarded half of the sum sought at K6,000.00 after accepting that the first respondent incurred some costs for time spent in and out of hospital to receive treatment. 
6.	The trial Court was conferred discretion by Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015 to decide whether to award interest and at a rate of up to 8% per annum.  If it is to be awarded, the Court will fix the rate of interest, grant interest on the whole or part of the debt or damages which formed the judgment and fix the period for which interest will run.  
7.	The second appellant did not outline the reasons in his written submissions in the trial Court for an award of interest at rate of 2% from date of service of writ to the date of judgment on assessment of damages. The second appellant’s failure to give proper reasons for an award of interest at a reduced rate and over a short period of time is an error that is not attributable to the trial Court.   
8.	The appeal is dismissed, with the second appellant to pay costs, to be taxed, if not agreed.

Cases Cited:
Papua New Guinean cases

Cheong Supermarket Pty Limited v. Perry Muro [1987] PNGLR 24
Curtain Bros (PNG) Limited v. UPNG (2005) SC788 
Ekip Pade & Ors v. Constable Albert Nangas & Ors (2018) N7073
Joe Kape Meta v. The State (2012) N4745
The State & Sam Akoita v. Central Provincial Government (2009) SC977
Seupain v. The State (2009) N3573

Overseas Cases

Australia Coal and Shale Employees’ Union v. The Commonwealth [1953] HCA 25; (1956) 94 CLR 621

Counsel:

Mr. D. Wayne, for the Appellants
Mr. J. Unua, for the First Respondent

JUDGMENT

5th August, 2022

1.	BY THE COURT: It was alleged that the respondents were part of a group of men who entered the appellants’ coffee plantation at Morita in Kainantu area of Eastern Highlands Province on the afternoon of 15th February 2009.  In the process of stopping them, the first appellant discharged a shot-gun and wounded the respondents.  The first respondent sustained pellet wound to his left leg.  The wound was life threatening and his left leg was amputated from the knee down.

Background Facts

2.	On 16th August 2016 the respondents commenced proceedings in the National Court and sued the appellants for negligence.  The appellants filed a defence and denied liability.  Trial on liability was conducted on 12th July 2018. 
 
3.	On 22nd November 2018 the National Court entered judgment on liability against the first appellant and in favour of the first respondent.  No liability was established against the second appellant and the proceeding was dismissed.  As for the second respondent, he did not attend trial and tender evidence.  Liability was not established against the appellants and the proceeding was dismissed.

4.	On 1st August 2019 trial on assessment of damages for the first respondent was conducted and final submissions were made on 30th August 2019.  Following submissions, the National Court proceeded to deliver its decision and awarded the following damages:
(a)	General damages for pain and suffering – K100,000.00.
(b)	Special damages for medical costs and out of pocket expenses – K6,000.00.
(c)	Interest at 8% from date of incident of 15th February 2009 to date of judgment on assessment of damages of 30th August 2019.

5.	On 6th September 2019 the second appellant filed this appeal against the award of damages as being excessive.
Grounds of Appeal

6.	We were informed the appeal will be decided on three grounds:
(a)	The Trial Court erred in law in awarding K100,000.00 as general damages for pain and suffering.
(b)	The Trial Court erred in law in awarding K6,000.00 as special damages for medical costs and out of pocket expenses.
(c)	The Trial Court erred in law in awarding interest at 8% from date of incident of 15th February 2009 to date of judgment on assessment of damages of 30th August 2019.
Principles of Appeal

7.	In deciding each ground of appeal, we will be guided by the principle “that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong”.   The next principles are “A discretionary judgment may be set aside if an identifiable error has occurred in the exercise of discretion.  Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is unreasonable or plainly unjust and such that an error can be inferred”.  These principles are found in the Australian High Court case of Australia Coal and Shale Employees’ Union v. The Commonwealth [1953] HCA 25; (1956) 94 CLR 621 at p. 627 and adopted in Curtain Bros (PNG) Limited v. UPNG (2005) 788 and many subsequent cases including The State & Sam Akoita v. Central Provincial Government (2009) SC977.

Award of General Damages	

8.	Under this ground the second appellant referred us to the case of Ekip Pade & Ors v. Constable Albert Nangas & Ors (2018) N7073 where in that case, the plaintiff was shot by a member of the Police and sustained wound to his leg.  His leg was later amputated from above-knee.  The plaintiff was awarded a sum of K200,000.00 for pain and suffering as a result of loss of one leg.

9.	He urged us to distinguish this case from the Pade case on the following facts, in the Pade case:
	(a)	Tortfeasors were members of the Police.
	(b)	The shooting was deliberate.
	(c)	Victims were locked up for days while seriously wounded.
	(d)	Victims were denied medical attention.
	(e)	Magnitude for breach of human rights greater.
	(f)	Medical Report tendered during trial on assessment of damages.

10.	In the present case:
(a)	The second appellant defended his plantation and properties from invasion by locals.
(b)	The shooting was not deliberate, no element of intent, and they were found liable for being negligent.
(c)	The appellants assisted the first respondent with meeting his medical costs and brought him to the hospital.
(d)	There were no breach of human rights as found by the National Court.
(e)	Medical Report not tendered during trial on assessment of damages.

Contributory Negligence

11.	While this was not a case of unlawful shooting by a member of the Police, the claim by the second appellant that he was defending his plantation and properties when he shot and wounded the first respondent demonstrate a case of contributory negligence. 

12.	We consider that in order for the second appellant to seek apportionment of damages, contributory negligence must be pleaded and relied on at trial on liability.  Where contributory negligence is established, damages may be awarded based on the extent of contributory negligence.
13.	Contributory negligence is available to the second appellant if he has pleaded in his defence that the first respondent contributed to his injury when he joined others and entered his premises and was shot and wounded. The first problem with the defence of contributory negligence is that it is not expressly pleaded in the appellants’ defence filed 30th March 2017 that they will rely on contributory negligence. 
 
14.	The second problem is, as they did not plead and rely on contributory negligence, the parties led the trial Court to determine the sole issue of liability and evidence was led to resolve it.  Following trial, the trial Court held that the second appellant was negligent, and liability was entered wholly against him.

15.	Where a defendant, in this case, the second appellant was held wholly liable, the issue of apportionment of damages does not arise when the Court is assessing damages.   We find no error in the trial Court’s decision in not apportioning damages.  This ground is dismissed.

Lack of Intention to Cause Injury

16.	As to the second appellant’s claim that he did not intent to shoot the first respondent and if the trial Court had considered it, it would have reduced the sum awarded, we agree with the trial Court’s observation that “in this case, it was an above knee amputation generally considered to be more serious than a below knee amputation of the left leg”.  For this reason, it is reasonable that a sum within the range of K100,000.00 will be awarded.  No identifiable error has been established.  This ground is dismissed.

No Breach of Human Rights

17.	It is arguable that there is a distinction between award of general damages for breach of human rights and general damages in tort.  General damages for breach of human rights are awarded for breaches of basic rights and freedoms of an individual under the Constitution.  An award will depend very much on the nature and severity of the breach. 
 
18.	Unlike Pade case where there were breaches of human rights, in this case, the trial Court found that there were no breaches of human rights and correctly did not award any damages for breach of human rights.  However, the primary consideration to be in mind is the purpose of an award of general damages in tort is to put the injured party in the same position as they would have been in if the tort had not occurred. 

19.	In this case, the trial Court formed the view that K200,000.00 was excessive, and it awarded K100,000.00.  In our view, the award of K100,000.00 is consistent with the purpose of an award of general damages and within the range of past awards for above-knee leg amputation cases such as those cited by the second appellant’s counsel in his written submission in Seupain v. The State (2009) N3573 where K100,000.00 was awarded and Joe Kape Meta v. The State (2012) N4745 where K175,000.00 was awarded.   No error identifiable error has been established.  This ground is dismissed.

Lack of Medical Report
20.	As to the absence of a medical report, the second appellant claimed that the first respondent did not tender a medical report by a doctor at the trial on assessment of damages.  He claimed that the medial report is crucial to verify if the first respondent’s left leg was amputated.  Without the medical report, the award of K100,000.00 is unsupported by evidence and a fair and reasonable sum to award was between K40,000.00 to K70,000.00.

21.	The first problem with this argument is that the second appellant objected to the tender of the medical report at the trial on liability.  The trial Court overruled the objection because he did not give notice to the first respondent prior to trial that he would be objecting to its tender at trial. 
 
22.	No appeal was filed against liability and the trial Court’s finding that the first respondent was wounded on his left leg from pellets discharged from a shotgun by the second appellant remained unchallenged.  Because of this, it was open to the trial Court to consider the medical report. 

23.	The second problem is that for the second time he objected to the tender of the medical report.  This time at trial on assessment of damages.  The trial Court overruled the objection because again, he did not give notice to the first respondent prior to trial that he would be objecting to its tender at trial.  
24.	Even so, we consider that, as the medical report was allowed and relied on by the Court to determine liability, the trial Court’s decision to overrule the second objection is inconsequential.

25.	The third problem is that the medical report was not the sole evidence which the trial Court considered.  The other evidence was from the first respondent.  He was the injured party and he deposed in his affidavit supported by two photographs of his wound that he sustained wound to his left leg.  Later, his left leg was amputated.   The evidence was accepted by the trial Court as being reliable.

26.	 Even if the medical report was disregarded, we consider that the trial Court had sufficient and reliable evidence (Affidavit and Photographs) from the first respondent that his left leg was amputated to form the basis of its decision to award K100,000.00.  As we pointed out earlier, the sum of K100,000.00 was within the range of past awards and awarded to compensate the first respondent for the loss his left leg.  This sum is not excessive, and no identifiable error has been established.  This ground is dismissed.

Award of Special Damages	
27.	We note that the first respondent claimed a total sum of K12,000.00 which comprised of medical costs, out-of-pocket expenses and legal costs as costs incurred in related National Court proceedings.  The related National Court proceedings were WS No 564 of 2015 and HRA No 104 of 2014.  The trial Court reduced the sum sought by half and awarded a sum of K6,000.00. 
 
28.	The second appellant claimed that in the National Court, he submitted that only a sum of K2,800.00 should be awarded.  This sum is the balance from the total sum of K6,000.00 after deduction of K3,200.00 for legal costs.  However, the trial Court erred when it did not accept his submission and awarded K6,000.00.
 
29.	Special damages must be pleaded and strictly proved.  This means that there must be evidence of receipt of payment to support the sum sought.  A bare assertion is not sufficient.  
30.	In this case, in his affidavit, the first respondent outlined his medical costs, out-of-pocket expenses incurred for receiving treatment and legal costs for costs incurred in related National Court proceedings.  He did not produce receipts of payments and other relevant documents to verify these costs and expenses. 
 
31.	As special damages required strict proof and no receipts of payments and other documents were produced, the trial Court partly upheld submissions by counsel for the second appellant that the first respondent did not produce receipts of payments and other documents to verify these costs and expenses.
  
32.	However, because there is no dispute that first respondent spent time in and out of hospital to receive treatment for his wound, we agree with the trial Court that:
“….the claim appears generally a reasonable one and it is reasonable to be expected that anyone who suffers such a serious injury will incur out of pocket expenses over a number of years”.
33.	The award of K6,000.00 was not excessive but fair and reasonable.  No identifiable error has been established.  This ground is dismissed.

Award of Interest at 8%	
34.	The trial Court awarded interest at a rate of 8% per annum on the total sum of damages of K106,000.00 from the date of incident to date of judgment on assessment of damages.

35.	The second appellant claimed that in the National Court, he submitted that interest should be awarded at the rate of 2% from the date of issue of writ to the date of judgment on assessment of damages.  However, the trial Court erred when it did not accept his submission and awarded interest at the rate of 8% per annum from the date of incident to date of judgment on assessment of damages.

36.	Under Section 4 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015 and in Cheong Supermarket Pty Limited v. Perry Muro [1987] PNGLR 24, an award of interest remains at the discretion of the Court and interest may be awarded at a rate of up to 8% per annum.  If it is to be awarded, the Court will fix the rate of interest, grant interest on the whole or part of the debt or damages which formed the judgment and fix the period for which interest will run. 
 
37.	The onus is on each party to show by giving proper reasons whether interest should be awarded or not, at what rate, whether on whole or part of the judgment sum and for how long.  This must be expressed clearly to the trial Court, and it is not sufficient to assume that the trial Court will award interest at its discretion.

38.	In this case, we note the second appellant’s submission is based on the conventional award of interest and in the ground of appeal, he stated that the trial Court did not consider his submission that the respondents abused the process by filing multiple proceedings in the National Court resulting in the proceeding subject of this appeal being time-barred under Section 16(1)(a) of the Frauds and Limitations Act, 1988.
	
39.	However, we note in his counsel’s written submissions in the trial Court, he did not outline the reasons for his request for a conventional award of interest.  Relevantly, we note that his counsel did not submit that the respondents had abused the process by filing multiple proceedings in the National Court resulting in the proceeding subject of this appeal being time-barred under Section 16(1)(a) (supra).  Because of this, interest should be awarded at a reduced rate and over a short period of time.
	
40.	The problem with this argument is the second appellant has relied on a reason that was not raised in the trial Court.  The downside of that is, the trial Court was not assisted with the relevant information to reach a decision favourable to the second appellant.  Because of this, the trial Court gave this reason no consideration.  In our view, the second appellant’s failure to give proper reasons for an award of interest at a reduced rate and over a short period of time is an error that is not attributable to the trial Court.   Because of this, we have no reason to change the award of interest.  No identifiable error has been established.  This ground is dismissed.

Conclusion
41.	None of the grounds of appeal have been upheld.  The various awards by the trial Court are not excessive.  It follows that the appeal will be dismissed and as the second appellant has not been successful in his appeal, he will pay the costs of the appeal, to be taxed, if not agreed.
Order
42.	The orders are:

 1.	The appeal is dismissed.

2.	The judgment of the National Court of 30th August 2019 is affirmed.

3.	The second appellant shall pay the costs of the appeal, to be taxed, if not agreed.
	
4.	Time shall be abridged.

Judgment and orders accordingly.
________________________________________________________________
Express Legal: Lawyers for the Second Appellant
Public Solicitor: Lawyers for the First Respondent