Murray v Kinamur [1983] PNGLR 446 (26 August 1983)

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DAMAGES - Personal injuries - Particular awards of general damages - Loss of eye - Middle aged married woman - Award of K20,000 general damages.

The plaintiff, a middle aged married woman suffered an eye injury from an assault upon her, which required surgical removal of the eye some weeks after the incident. The plaintiff was at the date of the trial wearing an artificial eye which created continuing irritation, disfigurement and psychological distress.

This was an action in which the plaintiff claimed damages for personal injuries inflicted during an assault upon her person.

MCDERMOTT J: On 22 February 1983, the plaintiff obtained an interlocutory judgment in default of the defendant’s appearance to the writ which claimed damages for trespass to the person. A writ of enquiry issued for assessment of the plaintiff’s damages.

In the early evening of 6 August 1982, the plaintiff, a married woman with two children was assaulted by the defendant at Arawa, when she was hit in the left eye. As a result of the defendant’s blow she was knocked to the ground and began to cry. On putting her hand to the eye she discovered it was bleeding. She was conveyed to the Arawa hospital for treatment and was an in-patient for nine days. Still suffering pain after discharge, she returned to the hospital for a further nine days in-patient treatment. Later treatment was sought in Port Moresby, Arawa and Rabaul. It was recommended she seek medical treatment in Australia. This resulted in admission to the Flinders Medical Centre for five days and later five weeks out-patient treatment there.

The plaintiff’s eye was removed and a false one inserted. I have observed Mrs Murray, an attractive woman, and it is just possible to notice a difference in the movement of the eyes. However, it is clear that one eye is artificial.

In all of this period I am satisfied the plaintiff suffered pain, sleeplessness without medication and still continuing pain, headaches, and giddiness in the sun requiring the wearing of sunglasses. The plaintiff’s distress, pain and suffering was confirmed in the medical report and by her husband. He was an impressive witness and helpful to me. As a result of his evidence, I am now aware of the irritation and disfigurement which the artificial eye causes the plaintiff but which is not felt by her apart from the irritation being noticeable. I am also aware that the plaintiff’s continuing reluctance to resume all her former activities is as much psychological as physical, nevertheless, this is a form of injury related to the assault.

In a way, I am assessing damages with one hand behind my back. I am told because of anticipated difficulties in obtaining anything at all from the defendant in satisfaction of any judgment the plaintiff was reluctant to incur the further expense entailed in supplying the evidence which at assessment I indicated was required. Presumably this was the reason for the paucity of evidence presented.

As a result, the medical evidence consists only of Mr Hamish Forster’s report of 10 August 1982 which concludes:

“In summary, the patient has suffered a very severe injury of the left eye resulting in total loss of sight which will most probably be permanent and may be associated with considerable pain and suffering.”

Unfortunately, I don’t really know what future treatment is required or of the performance of the artificial eye. I am aware that a yearly check-up at Flinders is required.

There is no claim for out-of-pocket expenses as most were met by Mr Murray’s employer as part of his terms and conditions of employment. His future employment is uncertain. The plaintiff (a Tolai) and her husband (an expatriate) will eventually return to Australia and thus have closer access to the medical assistance which the plaintiff may require.

There was no claim for economic loss but I myself elicited from the plaintiff a loss of approximately K95 per week as a result of her being unable to work as a shop assistant at Johnston’s Pharmacy for nine weeks. Doing the best I can, I assess this special damage K855. The continuing economic loss was not pressed and in the absence of evidence I can make no assessment.

Basically, the claim reduces to one for pain, suffering, disfigurement, loss of amenities and the enjoyment of life. Smithers J in Rouney Aura v. Papuan Airline Transport Ltd [1963] P.&N.G.L.R. 272 in a case concerning more than fifty per cent diminution of the plaintiff’s vision in one eye considered the following matters in assessing damages.

(ii) The possibility of future injury occurring to the healthy eye thereby severely handicapping the plaintiff.

(iii) The change in the life pattern of the plaintiff necessitated by the restricted vision of the left eye.

I have been referred to a number of cases and I have also consulted Britts Comparable Verdicts in Personal Injury Claims. (Law Book Co. Ltd 1973). I have done this to “be aware of and give weight to current general ideas of fairness and moderation”: see Planet Fisheries Pty Ltd v. La Rosa [1968] HCA 62; (1968) 119 C.L.R. 118 at 125.

In considering what would be fair and reasonable, I have considered the remarks of Prentice Dep. CJ, as he then was, in Dillingham Corporation of New Guinea Pty Ltd v. Diaz [1975] P.N.G.L.R. 262 at 276 and following. And at 278:

“As Minogue CJ pointed out [The Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265 at 269], the task of the Court is to provide a plaintiff with a ‘fair compensation to accord with his needs’. Unless and until the legislature sees fit to provide set scales of compensation for types of injuries done or sets limits to amounts that may be awarded, I do not think that this Court should resile from the aim involved in that dictum. That this fair compensation could be achieved; it is incumbent upon a tortfeasor to take his plaintiff as he finds him. If he (or the insurance company which may support him) becomes responsible for injury to the Head of Government or a technical officer of the highest qualification, he must be prepared to compensate on a scale far higher than for a simple villager of very modest needs. Just as the amount awarded for expenses and economic losses will vary; so I can see, should that of pain and suffering and loss of amenities.”

On the evidence before me I assess general damages under the heads mentioned in the sum of K20,000.

There will be a verdict for the plaintiff then in the sum of K20,855. Costs to be paid by the defendant as agreed or taxed.

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Papua New Guinea Law Reports

Murray v Kinamur [1983] PNGLR 446 (26 August 1983)

Papua New Guinea Law Reports - 1983