How Are General Damages for Pain and Suffering Assessed?

General damages compensate for what cannot be measured in receipts: the pain, the months in hospital, the limp, the scar, the things the claimant can no longer do. Assessing them is a judgment, but a structured one.

The method: comparables and community standards

The Supreme Court in Kerr v MVIT [1979] PGLawRp 676; [1979] PNGLR 251 directed that general damages be assessed by reference to “the prevailing condition of the plaintiff at the time of injury, and the general standards prevailing in the community”. Trial judges give effect to this by surveying earlier awards. A typical passage is Kapia v MVIT [1991] PGNC 28; N1024, where the judge reviewed six leg-injury cases — K8,000 for a 50 per cent loss of use of a knee, K15,000 for a 35 per cent loss of use of a leg, K20,000 for malunited fractures of both legs, K29,000 for a compound fracture of tibia and fibula — before fixing K26,000 for an elderly woman with a pinned comminuted fracture and lasting pain. The damages index on this site collects those comparables.

What moves the figure up or down

• Permanence and percentage of disability. Doctors’ assessments of “loss of efficient use” of a limb are the courts’ main anchor: 10 per cent of a foot, K6,500 (Sangasib); 40 per cent of a shoulder and arm, K30,000 (Takura, 2010); 80 to 100 per cent of a leg, K60,000 (Kol, 2007).
• Age. A young person lives longer with the disability. In Kepa v MVIT [1991] PGNC 54; [1991] PNGLR 424 a quadriplegic woman of 28 received K140,000; the court noted that earlier paraplegic awards had ranged from K30,000 in 1979 to K90,000 in 1983.
• Occupation and way of life. A village woman’s loss is valued as highly as a young man’s, “for a woman is expected to participate in quite physically demanding tasks”: Terema, K26,000 for a below-knee amputation. Where a villager’s ability to garden and carry is impaired, courts either add a sum within general damages (Joseph: K17,000 “including a sum of K7,000 for restricted participation in the village subsistence economy”) or make a global award.
• Scarring and disfigurement. Facial scarring in a child with double vision: K12,000 in 1985 (Coady); severe scarring on 75 per cent of a thigh among the injuries in Kupo.
• Psychiatric and cognitive consequences. Post-concussion syndrome in a teacher, K28,000 (Eldik); permanent brain damage with 50 per cent mental incapacity, K30,000 (Wai, 2006); grief at the loss of an unborn child, K4,000 (Yana).
• Mitigation. A plaintiff who unreasonably refuses treatment that would reduce the disability has his damages reduced: MVIT v Pupune, plastic surgery refused.

Loss of expectation of life

Where the injury shortens life, a modest conventional sum is added. In Kerr the Supreme Court increased the figure from K800 to K1,500. In Toea v MVIT [1986] PGLawRp 376; [1986] PNGLR 294 K2,000 was awarded to a village woman for the “lost years”. In death claims the equivalent estate award, conventionally K3,000, was raised to K8,000 in MVIL v Manduru [2018] PGSC 93; SC1750, the Supreme Court calling the conventional figure “inappropriate and unrealistic”.

Inflation

Because the method depends on comparables, and most comparables are from the 1980s and 1990s, courts must adjust for the fall in the kina’s buying power. Gamias v Anton and MVIT [1996] PGNC 60; N1502 observed that “awards increase over the years to take into account inflation” and fixed K25,000 for a shoulder injury against a 1980–1991 range of K6,600 to K38,000. Oni v MVIT [2004] PGNC 16; N2767 more than doubled a 1987 figure. Pioro v MVIL [2022] PGNC 235; N9667 applied a 200 per cent uplift and criticised smaller ones. The modern awards reflect this: K66,000 for knee and collar bone injuries in Waso (2021); K80,000 for pelvic and internal injuries in Vali (2022); K90,000 for compound leg fractures in Westcott (2008); K280,000 assessed for paraplegia in Yakupi (2006).

The pre- and post-judgment split

Interest is payable only on the part of general damages referable to the period before judgment, so judges apportion the figure. In Darvill v MVIT [1980] PGLawRp 619; [1980] PNGLR 548 K19,000 was split K10,000 pre-judgment and K9,000 post; in Brown, K13,500 and K4,500. Interest then runs on the first figure, typically at 4 per cent (half the commercial rate), from the writ or the accident to judgment. See interest.