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Yalao v Motor Vehicles Insurance (PNG) Trust [1997] PNGLR 441 (28 June 1996)

[1997] PNGLR 441

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JACK LUNDU YALAO

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

MOUNT HAGEN: INJIA J
19, 21 July, 27 October, 8 December 1995, 28 June 1996

Facts

In a personal injury claim under the Motor Vehicles (Third Party Insurance) Act Chapter 295 where the plaintiff has suffered 95% visual disability in the right eye:

Held

1. The negligence of the other car driver is the sole cause of the accident resulting in the injury sustained by the plaintiff.
   
2. A fair and reasonable amount for pain and suffering and loss of amenities would be K30,000.00, economic loss and loss of future earnings at K10,000.00 and out of pocket expenses of K2,328.00 and interest at K7,799.04. Total damages awarded K51,127.04 plus costs.
   
3. Evidentiary material not formally tendered as evidence due to inadvertence by the counsel for the plaintiff, is admitted into evidence by the exercise of the courts discretion in the interest of justice and fairness.
   

Papua New Guinea cases cited

Baduk v PNG [1993] PNGLR 250.

Jacqueline Kennedy v Jerry Nalau & State [1981] PNGLR 543.

Jane Rohrlack v Evangelical Lutheran Church [1985] PNGLR 185.

Leke Opa v The State [1987] PNGLR 469.

Rouney Aura v Papua Airline Transport Ltd [1983] PNGLR 273.

Sale Dagu v The State N1316 (1995).

Takie Murray v Norman Kinamur [1983] PNGLR 446.

Counsel

A Manase, for the plaintiff.
P Smith, for the defendant.

28th June 1996

Injia J. This is a claim by the plaintiff for damages for personal injuries sustained in a motor vehicle accident under provisions of the Motor Vehicles (Third Party Insurance) Act (Ch. 295) (hereinafter referred to as "the Act"). The matters of both liability and quantum are in issue.

There were 3 affidavits which the plaintiff’s counsel sought to rely on at the commencement of the hearing namely, two affidavits of the plaintiff sworn on 9/4/92 and 18/7/95 respectively and the affidavit of Dr. Korimbo sworn 13/7/95 all of which were filed previously. The defendant objected to the tender of the plaintiff’s two affidavits but offered no objection to Dr. Korimbo’s affidavit. The plaintiff’s counsel whilst declining to rely on the two affidavits evidence of the plaintiff, did not seek to formally tender Dr. Korimbo’s affidavit into evidence. As such, although Dr. Korimbo’s affidavit is not in evidence, through what I believe is inadvertence of the plaintiff’s counsel, I think I should use my discretion, in the interest of justice, to admit it and use it.

Also the plaintiff’s counsel sought to tender the medical report of Dr. J. Beaso of Arawa General Hospital dated 23/11/87, through the plaintiff. The defendant’s counsel objected on the grounds that it should only be tendered through Dr. Beaso. The document was allowed to be tendered and marked for identification only. At the end of the evidence, the plaintiff’s counsel did not seek to tender it into evidence through what I also believe is inadvertence of the plaintiff’s counsel. The reliability of that report however is not disputed and I will use my discretion, in the interest of justice, to admit that report. It is more that 8 years since the report was issued and given the crisis in Bougainville, which saw the Arawa Hospital being closed, it would be difficult to find Dr. Beaso. I therefore accept this report into evidence.

The plaintiff’s counsel submits that the plaintiff’s two affidavits should be "deemed to have been admitted after... to accord with the requirement of the Evidence Act... particularly receipts and certain letters to the plaintiff by the eye-doctor etc., as they would not have been positively identified at the trial by the plaintiff because of difficulty faced by him by loss of eye-sight". I reject this submission. The plaintiff’s counsel indicated he would not be relying on these two affidavits so that is the end of those two affidavits.

At the completion of the evidence for the plaintiff, the defendant did not call any evidence. Both parties filed written submissions and counter-submissions.

From the evidence and from admissions made by the defendant in the course of the trial, and from the strength of the evidence from the plaintiff, I make the following findings of fact and conclusions on liability:

1. On Thursday 5 November 1987 at about 12.30 p.m., about 6 kilometres from Panguna towards Arawa on the Espre Highway, the plaintiff was a passenger in a Datsun 120Y registration number ABU 331 (hereinafter referred to as the "120Y") which was driven by Chris Pasongo towards Panguna. As the Datsun 120Y was being driven up the hill, another vehicle came in the opposite direction downhill at high speed and whilst overtaking another vehicle around a corner, collided into the Datsun 120Y. This vehicle was a Datsun 180B Sedan, Reg. No. AEI 997 ("the 180B"), which was owned by Joe Sumu and driven by Galang Senge.
   
2. The driver of the 180B was negligent in the manner of his driving and it was his negligent driving which was the sole cause of the accident.
   
3. The 120Y was currently insured at the material time under provisions of the Act and as such the defendant is liable to the plaintiff under the provisions of that Act.
   
4. On the nature of the injuries sustained by the plaintiff, based on the oral evidence of the plaintiff and supported by Mr Passongo and Mr Upp and the photograph (Exhibit "B"), the medical report of Dr. Beaso, and to some extent conceded by the defendant, I find that the plaintiff sustained injuries to his head which involved the forehead, the nasal bridge and both eye-lids.
   
5. The plaintiff’s oral evidence that he sustained injury to the right eye, which left him almost total loss of sight of the right eye, is vigorously contested by the defendant on the basis that there is no evidence or medical evidence to support the injury, the cause of the injury and the permanent disability. On the evidence as it stands, however, I reject the defendant’s contentions. Although the medical report of Dr. Beaso does not specifically mention injury to the right eye-ball, his mention of the "complete laceration and detachment of his right upper eye lid" which no doubt were caused by flying broken windscreen glass (according to the plaintiff’s oral evidence) and the photograph of the plaintiff places the injury to the right-eye or eye-ball within reasonable proximity. Then there is the uncontroverted oral evidence of the plaintiff seeking specialist eye-treatment at Goroka between 1987-1989 followed by specialist eye-treatment and check-up at Dr. Korimbo’s clinic in 1993. It is worth nothing that the check-up at Dr. Korimbo’s Clinic was done at the request of the defendant. Dr. Korimbo’s report sets out finds as to the injury and permanent disability, which is uncontroverted by the Defendant. This chain of events all point to the 1987 accident. The Defendant has not produced any other evidence tending to show that the injury to the right-eye and permanent disability occurred from causes other than from the 1987 accident.
   

Based on the medical report of Dr. Korimbo, dated 27 May 1993 I find that the plaintiff is permanently 95% visually incapacitated. Dr. Korimbo’s report reads:

"I have examined the eyes of the above and my findings are as follows:

1. Right eye- counting fingers at 6 feet. Half of top eyelid has been lost from the injury. He has glare sensitivity.
   
2. Left Eye - counting fingers at 3 feet. He has a retinal hole as a consequence of the injury.
   

The above findings amount to a total of 95% visual incapacity.

The changes are permanent and there is nothing that can be done to improve his vision".

Dr. Korimbo is a specialist eye doctor (according to his affidavit) whose services were sought for by the defendant and his findings and assessment of permanent disability cannot be doubted.

There is also oral evidence from the Plaintiff as to the following residual and continuing disabilities:

(a) difficult to close eye especially right eye;

(b) right eye produces tears on a sunny day and when looking at a white matter;

(c) left eye pains;

(d) both eyelids rub against the eye balls;

(e) both eyes feels itching;

(f) left eye feels dark and blurry;

(g) right eye see close objects but not clearly;

(h) seeing at a spot for a while makes tears fall;

(i) sees objects blurry;

(j) visibility worsening since the accident;

(k) colour blind;

The defendant’s counsel in cross-examination sought to test the extent of the disability. To some limited extent, he was able to show that the plaintiff’s visibility may not be completely lost. But then it is a difficult area for us layman to make accurate judgment on these kind of matters. I accept Dr. Korimbo’s evidence as to the plaintiff’s disability as at 27 May 1993. These was however no medical report as to the Plaintiff’s percentage disability at the time of the trial (July 1995). The disability may have deteriorated or improved since 27 May 1993. I do not know. In the absence of any other evidence, I am left to accept Dr. Korimbo’s assessment and which I do.

General damages

The plaintiff was admitted to Arawa General Hospital after receiving these injuries. He was in a state of unconsciousness when he was taken there. He was an impatient for 7-8 days. After he was discharged, he returned later on 2-3 subsequent days for review. He was flown to Goroka General for an eye-operation, which was done where he was admitted for 9-10 days. Up to this day he complains of sight problems and pain in the right eye, etc. He would no doubt have suffered pain and discomfort during the period of hospitalisation and subsequent review and the eye-operation.

For all these pain and discomfort, he is entitled to damages. All the other injuries except the eye are cosmetic injuries, which healed well. I award K1,000.00 for general damages for the other cosmetic other injuries.

As for the eye-injury, in assessing quantum of damages, I have had recourse to a decision of Salika, J. in Sale Dagu v The State (1995) (Unreported) N1316 in which the plaintiff, a male security officer earning K95.00 per fortnight suffered 90-95% incapacity representing a near blindness of the right eye. His Honour having considered the award in eye-injury causes such as Jacqualine Kennedy v Jerry Nalau & The State [1981] PNGLR 543; Takie Murray v Norman Kinamur [1983] PNGLR 446; June Rohrlach v Evangelical Lutheran Church [1985] PNGLR 185 and Seke Opa v State [1987] PNGLR 469. His Honour awarded K20,000.00 general damages for the eye-injury. The plaintiff’s lawyer has referred to various other cases like Takie Murray v Norman Kinamur [1983] PNGLR 446, Rouney Aura v Papua Airline Transport Ltd [1983] PNGLR 273, and Baduk v Papua New Guinea [1993] PNGLR 250 and others. He has also quoted passages from various learned authors on the subject and cited some awards in some Australian cases. The plaintiff seeks K65,000.00.

In the case before me, I consider that a fair and reasonable amount for pain and suffering and loss of amenities would be K30,000.00. In total, I award K31,000.00 for general damages. In arriving at this amount, I have taken into account the award in Sale Dagu v The State, supra. In this case, the plaintiff is also a male security guard with "near blindness" in the right eye only. I have decided to increase the award here because the medical evidence shows that both his right eye and his left eye are affected and the 95% disability assessed by Dr. Korimbo relates to the total visual disability of both eyes.

Special damages

The oral evidence of the plaintiff supports the following expenses associated with his medical treatment:

1. Arawa General Hospital fee: K250.00
   
2. Cost of 4 attendants at Arawa Hospital at K250.00 each K1,000.00
   
3. Air fare from Arawa Hospital to Goroka Hospital via Mount Hagen plus PMV fare: K276.00
   

K270.00 (Airline ticket) and K6.00for PMV fare.

4. Goroka Hospital fee: K97.00
   
5. Goroka Medical Report fee: K 8.00
   
6. Return trip from Goroka to Kieta K272.00
   

plus K6.00 for PMV fare

7. Other expenses at Goroka Hospital: K76.00
   
8. Cost of looking after 2 attendants at Goroka Hospital: K30.00
   
9. Second trip from Arawa to Goroka: K272.00
   

plus K6.00 for PMV

10. Consultation fee at Goroka on 2nd trip: K8.00
    
11. Other personal expenses on 2nd trip
    

to Goroka: K60.00

12. Dr. Korimbo’s Medical Consultation fee: K30.00
    
13. Eye-glass prescribed by Dr. Korimbo: K130.00
    
14. Second Consultation fee at Dr. Korimbo’s Clinic: K30.00
    
15. Return Trip from Wapenamanda to K264.00
    

Port Moresby to see Dr. Korimbo at Defendant’s request

16. Further Consultation fee to Dr. Korimbo: K8.00
    
17. Related expenses like transport and K70.00
    

during visit to Dr. Korimbo’s Clinic

18. Second Trip from Wapenamanda to K141.00
    

Port Moresby to see Dr. Korimbo

19. Accommodation at Sepik Guest House: K56.00
    

in Port Moresby whilst to see Dr. Korimbo

Total: K3,078.00

The defendant submits that there is no evidence as to any specialist treatment being required and costs incurred whilst attending at Goroka Hospital. He also submits the attendances at Dr. Korimbo’s Clinic at Port Moresby is not supported by receipts. I reject both submissions on the basis that the defendant has not controverted oral evidence given by the plaintiff on these matters. I find on the balance of probabilities that the plaintiff incurred these expenses and they were necessary expenses.

The plaintiff’s counsel in his submission has particularised the plaintiff’s expenses and arrived at a total of K3,526.97. However, I have to allow those expenses supported by the evidence. My figure comes to K3,078.00. I would allow K250.00 only for one attendant at Arawa General Hospital. I award the total sum of K2,328.00.

Economic Loss: Loss of income and loss of earning capacity

Immediately before the accident, the plaintiff was employed as a Security Guard with catering firm SHRM at Panguna commencing in 1979 from which he earned K264.00 nett pay per fortnight. There is however no evidence to support loss of income for the period he was hospitalised and was obtaining medical treatment. It is probable that his employer paid him on those times he was away from work.

It is submitted by the counsel that the plaintiff’s loss of actual earnings should be calculated from the time the plaintiff resigned (28/7/89) from his job due to the disability (this is disputed) to the time of trial (21/7/95). He submits the Court should award K37,615.80. He then goes on to submit that the plaintiff should be awarded K80,436.47.00 for loss of future earning capacity, which is the total income he would have earned for the remaining 14 years of his working life.

In my view however, the following unsatisfactory evidence appears from the plaintiff’s oral evidence:

1. He continued to be employed by SHRM after the accident for some 2 years after sustaining the injury even though he was under substantial disability.
   
2. He decided to resign in 1989 whilst SHRM was in the process of reducing its workforce due to the Bougainville crisis. The Bougainville crisis in this period, which is still continuing toady, is a matter of public knowledge and I take judicial notice of it. Eventually, SHRM shut down due to the crisis. The Plaintiff says, "if the Company asked me whether I wanted to resign, I would have said 1995. Because of the accident, I resigned in 1989". It is common knowledge now that due to the Bougainville crisis, BCL operations including SHRM were shutdown and the Plaintiff would have left employment earlier than 1995. It is probable that he resigned from his employment on his own accord due to the prevailing crisis and not as a result of the injury.
   

But then it is probable that his disability may have deteriorated over the years and this affected his livelihood and his earning capacity as years went by in terms of finding alternative similar employment.

3. There is no expert medical evidence, etc. to support his contention that he resigned because of the disability.
   

On the evidence, I am unable to find that his eye - disability caused him to resign his employment. However, I do find that before the accident, he was engaged in various paid employment in Bougainville culminating in being a Security Guard immediately before the accident and the injury to the right eye would have affected his ability to perform effectively in some form of paid employment.

In assessing his loss of earning capacity, it is difficult to use the type of job and income he was earning before the accident as a basis to calculate future loss because he did not posses any special skill apart from being a labourer and security guard for SHRM, which is a special catering company which was contracted to B.C.L. Upon the closure of the mine, whether the Plaintiff would have obtained similar employment elsewhere on similar income is doubtful.

Doing the best of estimates, I award a nominal amount of K10,000.00 for economic loss generally, inclusive of future economic loss.

Summary

In summary, I award damages in the total sum of K43,328.00 inclusive of general damages, special damages and economic loss. I award interest at 4% from date of commencement of proceedings (19/12/91) to date of judgment (28/6/96), which I calculate at K7,799.04. I award total of K51,127.04 inclusive of interest plus costs. The plaintiff shall have costs of the proceedings.

Lawyer for the plaintiff: Pato Lawyers.
Lawyer for the defendant: Young & Williams Lawyers.