Papua New Guinea Law Reports - 1964
[1964] PNGLR 154
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
VRANJAS
V
THE ADMINISTRATION OF PAPUA AND NEW GUINEA
Port Moresby
Smithers J
1-3 April 1964
8 April 1964
DAMAGES - Negligence - Judge without jury - Injuries to both legs - Permanent and severe impairment of right leg - Failure to call available medical evidence - Failure to submit to remedial operation - Exaggerated nervous symptoms - Division of award into heads of damage.
The plaintiff sued to recover damages for injuries caused by the admitted negligence of the defendant. The plaintiff had sustained severe injuries to both legs and was left with permanent impairment in the use of the right leg.
Held:
(Smithers J. sitting without jury):
(i)       that the plaintiff had unreasonably failed to undergo operative therapy, that some of his financial loss and personal suffering was due to that failure and, that in assessing damages such loss and suffering should be ignored;
(ii)      that damages should be assessed at £7,750.
Discussion of facts to be considered in arriving at an award of damages the tribunal being a judge sitting alone. The court may draw an inference from the failure of plaintiff to explain the absence of an available medical witness.
Counsel:
Pile Q.C. with him Kilduff for the plaintiff.
Smith for the Administration.
SMITHERS J:  The plaintiff is a young man of twenty nine years of age and of Jugoslavian origin. He has been well trained as, and is an efficient, carpenter. He arrived in Australia in 1959. He worked energetically on the Snowy Mountains and other projects and did some subcontracting in North Queensland. He then came to Papua and in July, 1961, was employed by Morobe Constructions Ltd. and thereafter worked for that company in various parts of Papua. He worked well and for long hours until 8th December, 1962, when he was injured in circumstances in which liability to pay damages on the basis of having caused the injuries by negligence is admitted by the defendant.
For the plaintiff’s injuries he must be awarded a fair and just compensation. In assessing this the purpose is not to attempt by means of money completely to ensure that the plaintiff will be placed for the rest of his life in the same position as if he had not sustained the injuries. Nevertheless such compensation must include:
(a)      actual expenditure incurred and losses suffered as the result of the wrong suffered by him;
(b)      a reasonable estimate of future loss and expenditure;
(c)      a sum representing a reasonable recompense for past and possible and probable future pain and suffering for such permanent injuries as have been suffered and any consequent changes in life; and for loss of enjoyment of life due to the injuries suffered.
It is clear that some of these items may overlap and the Court should not permit this division of the subject to induce it to award damages twice over for the same item.
The plaintiff’s injuries comprised compound factures of both tibia and fibula of both legs and a fracture dislocation of the second metatarsal of the right foot and dislocation of the metatarsal phalangeal joint of the great toe and the third and fourth toes of the right foot. There was a fracture also of the head of the third metatarsal bone. Also the right ankle suffered a severe strain and a flake of the bone was torn away from the side of the os calcis. The front end of the os calcis was also fractured. This last mentioned causes no trouble now but it indicates the severity of the force applied to the foot.
The fractures of the tibias and fibulas have united in an acceptable position without significant angulation shortening or displacement.
The right second metatarsal phalangeal joint is considerably damaged and for some time now it has been becoming more disorganised and damaged. The joint space is widened and there is a kind of cartilage wedge in the gap. The bone ends are arthritically roughened. The joint is now immobile and there is no doubt that it is painful if used. The result is the plaintiff has adopted a method of walking with the foot turned outward and thereby reduces the inevitable discomfort although it produces a definite limp. There is also said to be pain and loss of movement in the first, third and fourth metatarsal phalangeal joints. There is said to be pain in the right ankle and loss of dorsal and plantar flexion range.
Since the accident the plaintiff has done little work and has earned practically no money from what he has performed. His leg muscles are wasted. He suffers from crepitus in the knees. He has some loss of movement and some pain in the right ankle. There is some stiffness in the knees and right ankle on waking in the morning. He certainly suffers pain on normal walking in the region of the second metatarsal phalangeal joint. He states he suffers from neurotic anxiety with headaches, sleepnessness, irritability and other symptoms.
At the time of the accident the plaintiff was unhappy with work and conditions in this Territory. He contemplated taking an early holiday of unstated duration in New Zealand, then returning to the Territory for a period not specified and then proceeding to North Queensland for the purpose of marrying and settling down there as a carpenter either in employment or on his own account.
In the circumstances of this case it seems to me convenient to look at the problem in the following divisions:
(a)      earnings lost pending recovery;
(b)      an estimate of loss of earnings after recovery;
(c)      pain and suffering and loss of enjoyment of life pending recovery;
(d)      pain and suffering and loss of enjoyment of life after recovery;
(e)      medical and other expenses incurred, and to be incurred.
I use the term recovery to refer to the end of convalescence after the plaintiff has undergone an operation to relieve the trouble in his second metatarsal phalangeal joint. He will never recover fully. It must be remembered also in each division damages are recoverable by the plaintiff only in respect of items due to the defendant’s wrong and are not recoverable in respect of items of loss or damage caused by a failure of the plaintiff to act reasonably on his own behalf.
As to (a), (loss of earnings pending recovery). So far as earnings from 1st December, 1962, to this date are concerned, I think I should act on the view that the probabilities are that after a holiday of about two months he would have worked for Morobe Constructions for about six months and he would then have gone to Queensland. He was twenty-nine years of age on 21st July, 1963, apparently genuinely intending to marry.
What his earnings would have been in North Queensland up to the present time is difficult to say. I think the probabilities are that he would have worked for about six months and would have worked some overtime.
As to the period he would have worked for Morobe Constructions, I do not see any reason to doubt that he would have gained substantially the same financial return as he had achieved in the last eighteen months prior to his accident, namely about £40 net per week. For this period, therefore, I think it proper to assess his actual loss of earnings at about 26 weeks at £40 per week and for the period of work in Queensland about 26 weeks at about £29 per week, namely £l,794.
As to loss of earnings from this date until recovery the situation is something as follows. In my opinion on the evidence I accept he will lose in respect of the period of an operation and convalescence therefrom the equivalent of about nine months total loss of earnings, including overtime. I think he would probably have earned during this period about £1,000.
However, I think that but for unreasonable conduct on his own part he would not have lost earnings during this whole nine months but only for about two months of that period. The true loss for the period was thus about £250.
The total loss of wages pending recovery amount therefore in my view to £2,044.
The plaintiff’s unreasonable conduct consisted in failing to take the advice of Mr. Smyth given to him last June to undergo an operation to relieve the condition of the second toe.
On the orthopaedic side the plaintiff has relied on Dr. Ellis, a surgeon of Sydney, who saw him only once and then in Moresby on the 31st March and then only for the purposes of the case.
It appears, however, that Dr Ferber, a surgeon of Sydney, examined the plaintiff last October. He could have done all that Dr. Ellis did with the advantage of knowing what the plaintiff’s condition was last October. There is no attempt to explain why Dr. Ellis is called rather than Dr Ferber. It is always permissible to explain the absence of a witness. It is also noteworthy that Dr. Jacobi was not called. It is explained that he is temporarily out of the Territory. This case was made the subject of a fixture of a special date for the purpose of conveniencing the plaintiff in briefing Sydney Counsel. It seems strange that no effort was made to obtain a date to convenience Dr. Jacobi. Dr. Jacobi has been the plaintiff’s private medical adviser since 1962.
I am invited to infer that the absence of Dr Jacobi and the failure of the plaintiff to call Mr. Smyth, the surgeon who achieved the repair of the plaintiff’s broken bones and who saw him as late as June, and the plaintiff’s preference for Dr. Ellis as against Dr. Ferber, is due to the fact that only a surgeon fresh to the case can be ignorant of the fact that the plaintiff was advised to, and ought to, have undergone an operation to relieve the situation in the second toe at least seven months ago and that the plaintiff has preferred to remain in pain until after this case. The case was conducted on the basis that he will now have this operation. I think there is much in this criticism. I now know that Mr. Smyth gave the plaintiff the advice referred to as early as last June and the plaintiff, for no reason that I can see, preferred not to take the advice. The plaintiff himself made no attempt to explain his conduct.
This was not a case where doctors differed. There could be, at least since June 1963, only one opinion concerning the necessity to treat the second toe by operation. There was no danger and no risk of any complication to which any reasonable person would have had regard. The plaintiff has had plenty of leisure time to devote to the operation and subsequent convalescence. It is most regrettable that the plaintiff should have so delayed his recovery. Such tactics are seldom profitable.
It is convenient here to mention what I may call the psychiatric side of his case. Of course the plaintiff has anxiety and gets depressed and worried about himself. His injuries were quite severe enough to produce these symptoms. But to suggest that he has developed some kind of independent neurosis as a separate disease is, to my mind, unreal. It is the product of exaggeration of his nervous symptoms and of insufficiently critical approach on the part of his psychiatric expert. I do not believe, for example, that the plaintiff has had excessive headaches or headaches of any significance. I have no hesitation in adopting the view of Dr. Ellard, and I feel that the plaintiff’s anxieties and neurotic symptoms are directly related to his injuries and to this case and will subside when his condition is stabilised in relation to both of these matters.
These and other matters cast a shadow over the evidence of the plaintiff generally. It is fortunate for him that for the most part the rest of his case depends on the objective assessment of his condition by the medical experts.
As to (b) (earning capacity after recovery). It is probable that the plaintiff will suffer a permanent loss of earning capacity. Even after what I have called recovery he will have a permanent disability. He will, I think, always be able to perform the basic hours of a week’s work. The task before me is to estimate what loss he will suffer in being unable to make the effort to earn money beyond this. I think that despite such residual disability as will remain after the operation and after a period of use of the foot when the first, third and fourth toes will have been used, he will perform work in excess of the basic week and earn extra money accordingly. Probably however he will do this to a lesser extent than he would have done but for his residual disability.
I have been attracted to the view that I should endeavour to assess the extent, if any, to which the plaintiff’s ultimate disability might be due to the delay in date of the operation to relieve the second toe. However, the attention of the orthopaedic witnesses was not directed to this matter and I do not feel the evidence justifies an attempt on my own part to do this. I think, therefore, that I must treat the point as non-significant. It is not easy to visualise the plaintiff’s ultimate state of permanent disability. I have to make an estimate of a most general character and while I must be fair to the plaintiff, nevertheless it is he who carries the onus and I must not merely guess in his favour at the expense of the defendant.
Dr. Ellis says, in substance, “I think the first, third and fourth metatarsal phalangeal joints will always be restricted in movement and will cause pain on excessive exertion...  He will ultimately be able to do 40 hours’ work requiring walking and standing. He will not play soccer again and he will lack some of his agility. He will be able to get around sufficiently to supervise...  The degree of recovery that he may well make with treatment is a matter of opinion. He might well be fit to resume supervisory activity with limited walking and climbing not requiring agility. He would be fit, I am sure, for bench work but will have discomfort towards the end of a day’s work and I do not think he will ever be fit for more than 40 hours of work a week at this limited rate of activity.”
Dr. Morgan, called for the defendant, says in substance, “His organic condition is less bad than he states...  Some final disability will remain. He will always have some slight disability. He will not play soccer again. He may ski a little. He might go back to carpentry but will have some restriction in working on heights through loss of confidence and loss of agility. He could do 35-40 hours’ light carpentry at a bench now. He is young and has time on his side. It is possible that there might be a permanent twinge in the first and third toes with every step he takes, but that is unlikely, even if the condition developed he would develop a gait to avoid such pain. It could be that there will ultimately be no pain in walking. I hope he may have no pain save on running.”
Mr. Smyth says, in substance, “In June I thought that if he had the operation he could resume as a carpenter...  I considered that it was unlikely he would have trouble with the other toes. The second toe was the main seat of pain, the other areas were relatively free of pain, trouble in the first and third digits is a remote possibility.”
I believe that in recent months the plaintiff has been much more active in the works of Morobe Constructions Ltd. than he would have me believe. Nevertheless, I think I must accept the general conclusions of the two eminent surgeons from Sydney and so doing I cannot doubt that the plaintiff will suffer an ultimate permanent disability of a significant degree. It seems to me that in the condition of recovery to be anticipated the plaintiff will have a slight limp or abnormal gait, will be “slowed up” and suffer pain on sustained or vigorous walking, unable to run vigorously without pain or freely and unable to move around scaffolds and the like with speed and agility. In addition he will suffer additional fatigue on excessive effort. He will also be under mild threat of an early onset of arthritis in one or more of the affected joints.
I must assess the loss of earning capacity in respect of this disability. The plaintiff is an energetic person, he has initiative and the capacity to take on supervisory and even managerial occupations. He is quite intelligent. There may well be developed in him an inclination towards management and self-employment which may be to his ultimate advantage. His English is not bad and may be expected to improve. On the other hand, a continuing loss seems the more probable. I think it must be conceded that the plaintiff is a man who would be likely to use all his physical capacity to earn money. On this basis he will lose money by being slowed down, whatever direction his activities take. For this loss of earning capacity after recovery, and taking into account all the chances of life, I consider a sum of about £1,500 a fair compensation.
As to (c), I come now to the matter of his pain and suffering and loss of enjoyment of life for the period from the accident until recovery. In this connection I remember that seven of the probable twenty five months of the relevant period are due to his failure to have the operation with reasonable promptitude. I should therefore treat the period as extending for eighteen months. During this time the plaintiff has suffered a great deal. The injuries were of a major character. The accident itself was frightening. The early treatment involved immediate operative therapy followed by a long period in plaster and lying in one position. The discomfort and unpleasantness of this procedure is well known and in this climate in December and January is particularly intense. When released from the plaster the plaintiff underwent strenuous and sometimes painful physiotherapy to regain the function of his legs. Pending the second operation he has had quite marked pain in his second toe and for some time in the ankle and other parts of his lower limbs. He still suffers stiffness in the limbs. He has yet to undergo a further, if relatively minor, operation and a fairly long period of convalescence during which the first, third and fourth toes will require manipulation. In conjunction with all this, I think he has developed a state of anxiety which has tended to make life sometimes depressing, sometimes frustrating and frequently very unpleasant. Although I think the plaintiff has exaggerated these items I do not doubt that he has suffered considerably in respect of them. Actual loss of enjoyment of life during this period, except so far as wrapped up in the matters mentioned above, is to be considered but is relatively minor. So far as it depends on the non-playing of soccer and the like there is little in it. The plaintiff has had leisure for more swimming and contacts with friends.
It remains, however, that for three months (two bouts) in hospitals, various operations, uncomfortable treatment and painful convalescence over a further fifteen months in respect of multiple bony injuries the plaintiff has suffered and the compensation must be substantial. Add to this the mental distress of the plaintiff which I have mentioned and which still exists, the picture is of a man whose life has been disrupted during this period and who has suffered much by reason of the defendant’s negligence. I think a fair award for this item is £2,000.
As to (d) (pain and suffering and loss of enjoyment of life after recovery.) This item relates to the pain and fatigue the plaintiff may suffer for the rest of his life, the inability to partake fully in certain activities requiring running or other vigorous action with the agility with which nature endowed him. I think that reasonable compensation for any permanent disability which to a sensible degree precludes a person from the kind of activities he would choose for himself must be expressed in a substantial sum. Nevertheless, I cannot be unaware of the capacity of the human body to repair and accommodate itself to abnormal conditions especially over a long period. Like other damages which cannot be calculated, damages under this head must be measured by standards generally prevailing and should represent a reasonable conception of what is adequate to the occasion. I think £2,000 would be a fair award in respect of this item.
As to (e), the plaintiff has suffered over £400 medical expenses but all save £77 will be met by the defendant under an arrangement with the plaintiff outside this case. In future there will be further medical expenses not confined merely to the operation. I think it is reasonable to assess his total medical expenses with which I am concerned both past and future at £200.
The amounts indicated in the divisions above are not intended to be precise. The ultimate award is essentially a single award. The amounts indicated add up to £7,744. I give judgment for the plaintiff for £7,750.
Solicitor for the Plaintiffs: S. Cory and C. F. Kilduff.
Solicitor for the Administration of Papua and New Guinea: S. H. Johnson, Crown Solicitor.