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Paul, (an Infant, by his next friend Dan Paul) v Kare and The State [1988-89] PNGLR 276 (5 April 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 276 - Woma Paul, an Infant, by his next friend Dan Paul v Anton Kare and The State 

[1988] PNGLR 276

N660

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WOMA PAUL AN INFANT BY HIS NEXT FRIEND DAN PAUL

V

ANTON KARE AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Hinchliffe J

14 September 1987

19 September 1987

5 April 1988

DAMAGES - Personal injuries - Particular awards of general damages - Head, facial, chest and knee injuries - Minor injuries - Minor scarring - Male child aged five (seven at trial) - Award of K800 general damages.

The plaintiff, a male child aged five years (seven years at trial) claimed damages for personal injuries suffered when the motor vehicle in which he was travelling as a passenger overturned. The plaintiff suffered minor injuries to the head, face, chest and knee, from all of which he had fully recovered apart from some minor scarring.

Held:

Damages for pain and suffering and loss of amenities should be assessed at K800.

Cases Cited

The following case is the only one cited in the judgment:

Kongo Bomai v The State [1979] PNGLR 125.

Trial

This was an action in which the plaintiff, by his next friend, sought damages for personal injuries suffered as the result of a motor vehicle accident.

Counsel:

D L O’Connor, for the plaintiff.

D Lambu, for the defendants.

Cur adv vult

5 April 1988

HINCHLIFFE J.: On 3 February 1985, the plaintiff was injured when the motor vehicle in which he was travelling as a passenger, overturned between Kerowagi and Korongil Bridge on the Highlands Highway. The first defendant was driving the said motor vehicle, which was owned by the second defendant. At the time of the accident the plaintiff was about five years old. Liability is not in dispute and the matter comes before this Court for assessment of damages.

Mr Dan Paul, the father of the plaintiff, gave evidence and stated, inter alia: “After Woma lay on the road, he stood up and started crying. I saw that he had a cut above the right eye and on his right side and chest and on his right knee. He was bleeding.”

Mr Paul said that they were first of all taken to the Kerowagi Hospital and about one hour later they were taken to the Kundiawa Hospital. He went on to say that Woma stayed in hospital for about one month. When asked the question: “After Woma was released were there any further problems with the injuries,” he answered: “No.”

At the completion of the plaintiff’s case I looked at the plaintiff’s injuries and I observed minor scarring on the left knee, right chest and the right hand side of the face.

A letter, dated 25 August 1985, from Dr John McKup, Acting Medical Superintendent at Kundiawa Hospital, was tendered. In that letter the Doctor stated that the plaintiff

“was admitted for grazes over his right cheek and right chest with brushing [sic] of lungs.

Seen today the child has recovered fully with no residual loss of body function.

He should live a normal life”.

A medical report from Dr Allan Kulunga at the Kintip Surgery was also tendered. The report was dated 15 June 1987 and the said Doctor stated, inter alia:

“He received head, facial and chest injuries. He was admitted and treated in Kundiawa Hospital for two weeks. He was given antibiotics, primary closure of laceration on the forehead and general dressing.

He today came to this clinic and the following noted from physical examination:

(a)      Healed abrasions right forehead.

(b)      Abrasion left face — healing now.

(c)      Abrasion left chest — healed.

This child suffered psychological distress, pain and anxiety during this accident. He will however, suffer no long term permanent disability.”

There is no doubt that the plaintiff has not suffered serious injuries and apart from some minor scars remaining, he has made a full recovery.

Mr Lambu referred me to the Supreme Court decision in Kongo Bomai v The State [1979] PNGLR 125 where the principal injury received by the plaintiff (a teenager) was a fractured femur which was treated with traction and insertion of a Steinmann’s pin. In addition the plaintiff was rendered unconscious for a short period and suffered facial abrasions. At the time of trial he complained of pain and discomfort with climbing and inability to kick a ball. The Supreme Court awarded K1,100 damages.

Mr Lambu submitted that the injuries suffered in that case were far more serious than in the present one and therefore the Court should award damages in the K400 to K500 region. Mr O’Connor suggested a figure of K1,000.

The case referred to by Mr Lambu was heard about eight years ago and it is clear to me that over the last eight years awards for damages have increased. In some areas quite considerably. Every case is different and past cases are useful to read but only as a guideline.

The young plaintiff obviously went through a traumatic experience and indeed was hospitalised for at least two weeks. Possibly four weeks. Fortunately he has made a full recovery apart from minor scarring.

I am of the view that a proper figure for general damages is K800.

I order there be judgment for the plaintiff against the second defendant in the sum of K870 made up as follows:

I further order that the second defendant pays the plaintiff’s costs on the National Court scale as agreed upon or taxed and it is ordered that the said sum of K870 be paid into court to be invested by the Registrar on behalf of the plaintiff and not paid out in whole or in part without the order of a judge of the National Court until the plaintiff reaches the age of 18 years which date shall be deemed to occur on 31 December 1998.

Judgment accordingly

Lawyer for the plaintiff: D L O’Connor.

Lawyer for the defendants: State Solicitor.