Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Stamp v Motor Vehicles Insurance (PNG) Trust [1979] PGNC 2; N179 (9 February 1979)

Unreported National Court Decisions

N179

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. 548 OF 1977
BETWEEN: BARRY MAURICE STAMP
PLAINTIFF
AND: MOTOR VEHICLES INSURANCE (P.N.G.) TRUST
DEFENDANT

Rabaul & Waigani

Wilson J
9-10 May 1978
9 February 1979

DAMAGES - quantum - amputation of leg - general damages include future costs associated with replacement of and/or adjustments to prosthesis and costs of alterations to motor vehicles.

DAMAGES - quantum - loss of earning capacity should be proved - difficulty of quantifying loss of earning capacity without satisfactory evidence upon which assessment can be made - desirability of adducing evidence of employment opportunities and difference between wage levels in pre-accident employment and post accident employment - loss of earning capacity of skilled and experienced tradesman reduced to sedentary work is not less than 25% of his full capacity - actuarial figures to be used as a guide only.

9 February 1979

WILSON J: The plaintiff in this action is a motor mechanic who had his leg amputated as a consequence of a road accident in which he was involved and which occurred on 31st January, 1977. He now walks with an artificial leg.

Liability is agreed between the parties and the matter comes before me for assessment of damages. Judgment will in due course be entered for the amount of the damages I assess.

The plaintiff was 37 years old at the time of the accident. He is an Australian who had entered Papua New Guinea on 1st August, 1967, from which time onward, until the accident, he had been employed in various centres as a motor mechanic. On the day of the accident he held the position of workshop supervisor.

In the accident, which as I have indicated, occurred on 31st January, 1977, the plaintiff, who had been riding a motor cycle, got his right foot caught up in the bumper bar, he was thrown over the bonnet of the utility with which his motor cycle had come into collision, and he landed on his right knee. It is not disputed by the defendant or its advisers that the plaintiff sustained serious injuries. The inner aspect of his right foot was torn out, involving extensive skin and tendon loss. His right knee cap was smashed leaving a gaping hole. In fact, he sustained a gross compound fracture of the upper end of his right tibia involving the knee joint. He had a graze on his forearm and another graze on his right hand. The plaintiff still has marks indicating where these grazes were, but they are not unsightly. It was not surprising that, after receiving injuries such as have just been described, the plaintiff went into shock shortly after the collision. In fact, he did so at about the time he was admitted to the Nonga Base Hospital at Rabaul. The plaintiff was in a lot of pain at this time. After initially some of the plaintiff's toes had been amputated, the decision was made, after a discussion between the plaintiff and his medical advisers, that his right leg should be amputated. I am satisfied that that was a reasonable decision in all the circumstances. So, on 7th February, 1977, the right leg was amputated through the knee. A month later a further operation was needed in order to ensure complete covering and healing of the stump.

The plaintiff eventually left hospital on 24th March, 1977, after nearly two months of quite extensive and painful treatment. Even regular treatment with pain-killing drugs had done little to alleviate the pain, he had had little sleep in hospital, and phantom and cramp-like pains had troubled him.

In the months following his discharge from hospital the plaintiff suffered a considerable amount of pain, and he continued to use the crutches, which he had learnt to use whilst in hospital.

After soon getting sick of staying at home, the plaintiff returned to work at about the beginning of April, 1977. He still felt very weak. The stump of his right leg was not yet ready for a prosthesis or artificial leg. On two occasions the plaintiff slipped and fell down through not having a right leg to support him; this necessitated having to go to bed for about three days on each occasion.

On 7th July, 1977 the plaintiff, with his wife, flew to Melbourne, Australia, for the fitting of a prosthesis. He spent seven weeks in hospital at the Royal Talbot General Rehabilitation Hospital at Kew, during which time he received physiotherapy treatment and other treatment incidental to the fitting of what was ultimately to be a through-knee prosthesis.

A prosthesis has a limited life span, approximately one year. At the time of the hearing of this action the plaintiff was not finding his prosthesis very satisfactory, on account of the imperfect fitting, and he was experiencing discomfort and inconvenience. I am satisfied that he needs another prosthesis and will need other replacements or adjustments in the future. Artificial limbs of this kind can be replaced free of charge to the patient at Commonwealth Repatriation Artificial Limb and Appliance Centres in Sydney, Brisbane and Melbourne - it usually takes about three weeks. However, the plaintiff will be put to the expense of fares to and from the centre he goes to and, except in Melbourne where he could stay with his parents, there will be the expense of accommodation. The likelihood is that he will generally have this done in Melbourne. I have included in the general damages award the sum of K5,000 for expenses of this kind.

After returning to work in Rabaul on 4th September 1977, he encountered for the first time the problems and inconvenience associated with having a prosthesis. Although he was considerably better off than if he had no leg at all, the extent of his activities were restricted. He found that he did not move about as much as before the accident.

In January, 1978 the plaintiff moved to Australia to live. His contract in Papua New Guinea had not been renewed. With reference to driving motor vehicles, he experienced little trouble whilst still living in Papua New Guinea, but since being in Australia he has required an adapted motor vehicle.

I have included in the general damages award the sum of K1,000 which, on the evidence, represents a reasonable sum for the cost of having alterations done to the motor vehicles he will purchase from time to time. He will always need an automatic motor vehicle and the accelerator pedal will need to be shifted from the right side to the left.

The plaintiff's pre-accident leisure activities included driving, boating, playing snooker and darts, walking, swimming, and participating fully in club life. On occasions the plaintiff used to do mechanical work at home for friends as a hobby. He had a satisfying and active social and recreational life. He is now restricted in all of these activities. Physical movement involving the use of his legs will be restricted for the rest of his life. He will always limp to some extent and his gait will not be as smooth as in the case of people walking on their own two legs.

At present walking up slopes presents some slight difficulty and on such occasions strain is placed on the right thigh. Greater difficulty is encountered when walking down slopes. Standing still for long periods causes discomfort to his stump and tiredness. This is expected to continue.

Phantom pains continue to be encountered and, although it is likely that they will decrease in severity, it is by no means certain that they will disappear entirely. The plaintiff is likely to be at risk of having falls thereby injuring himself.

As a special aspect of the plaintiff's loss of amenities of life I am satisfied that his personal and sexual life with his wife was adversely affected for a time. Not unexpectedly adjustments had to be made, and tension and on occasions depression were the natural sequelae of the stress placed on the marriage.

The plaintiff must be compensated for his pain and suffering, both past and future, and for the inconvenience in daily living involved in dependence on the artificial limb. The non-economic component of the award must be substantial. For pain and suffering and for loss of amenities of life I would award the plaintiff K20,000.

The plaintiff's claim for loss of earnings and loss of earning capacity is one of some complexity, on account of the fact that his contract with the Government of Papua New Guinea, under which he had been employed since 6th November, 1975, expired on 31st December, 1977. Notwithstanding the plaintiff's hope that his contract would be renewed so as to enable him to remain in Papua New Guinea a few more years and so enable him "to save money before returning to Australia", it is probable that, whether or not he had the accident, it would not have been renewed. It was not proved that the termination of his employment in Papua New Guinea had anything to do with the accident. In fact, after sustaining no loss of earnings during 1977 due to the fact that his salary was paid to him in the period from the date of the accident (31st January, 1977) until the date of his contract expired (31st December, 1977), it was from 1st January, 1978 that he was at risk of losing earnings on account of his accident. If he had not been disabled in the accident, I am satisfied that he would have returned to Australia in about January, 1978 anyway but that he would have had little difficulty finding a job as a workshop supervisor or, at the least, as a well-paid mechanic.

The problem that the plaintiff encountered as from January, 1978 onwards was that, instead of being an able-bodied mechanic able to work either as a mechanic or a workshop supervisor, he was a disabled mechanic not able to do all that is required of a mechanic and able to do many aspects of that type of work only with difficulty. He faced problems in finding employment in the Cairns area, where he had wanted to live, on account of special unemployment difficulties in a place as small as Cairns. His actual experience during 1978 up until the date of the hearing was that he could only find short-term work for a two months period as a supervisor/teacher for Skilled Engineering at Soreake on the Island of Sulawesi in Indonesia. His experience in 1978 proved how much he is at a disadvantage in the labour market.

To summarize the circumstances surrounding his position as a member of the work-force, he is now only capable of mainly sedentary work whereas prior to the accident he was fit to hold down a job in the mechanical field involving normal physical agility. With his training as a mechanic and his experience generally, he could be expected to be able to run a garage where he could supervise mechanics and other staff in much the same way as he was doing in the final stages of his contract in Papua New Guinea.

I can foresee the real possibility of the plaintiff using part of his damages award to set himself up in a small business. That would, in my view, be a reasonable course for the plaintiff to adopt.

It is, of course, a matter of speculation as to how difficult it will be for the plaintiff to secure a garage for himself or find other work with which he could cope and in which his skills and experience could be used. However, I think he will find satisfying work but not without some difficulty. The probabilities are that he will not make "as good a living" (to use Mr. Challinger's words used in cross-examination of the plaintiff), as he did before the accident. I should therefore anticipate such a continuing loss and do my best on the evidence before me to quantify the extent of such a continuing loss in monetary terms.

In this case there was a lack of satisfactory evidence dealing with employment opportunities and an absence of satisfactory evidence of the difference between wage levels in Australia (where the plaintiff can be expected to reside) for mechanics and workshop supervisors on the one hand and those employed in sedentary positions on the other. The plaintiff's legal advisers would do well in future (as would the legal advisers of all plaintiff's who seek damages by way of loss of earning capacity arising out of road accidents) to heed the warning of O'Meally A.J. in Wilhelm Lubbering v. Bougainville Copper Limited N179.html#_edn146" title="">[cxlvi]1 in which His Honour said (at p.32):

"It would be appropriate to observe that it may not be in every case that a judge will make an assessment of loss of earning capacity in the manner adopted in this case. It is otiose to say the plaintiff carries the onus to prove his damages. If in some future case no evidence is called to establish either loss of future earnings or loss of earning capacity it well may be that no provision will be made in respect of such matters in the assessment of a plaintiff's damages. In every case where a loss of earning capacity is alleged a plaintiff should prove what particular jobs are within his capacity and what remuneration such employment will return. The loss of earning capacity is a fact which, like every other fact, ought to be proved. There ought also to be evidence upon which a loss of earning capacity can be expressed in economic terms".

Indeed, I might have found myself in this case disallowing altogether the plaintiff's claim for loss of earning capacity but for the recent decision of the High Court of Australia in Dessent v. The Commonwealth N179.html#_edn147" title="">[cxlvii]2 (p.482) in which Mason and Aickin JJ. Pointed the way to solving the problem of assessing damages for loss of earning capacity in situations in which there is "the usual lack of specific evidence". In that case, as here, a skilled and experienced tradesman was left with disabilities which "constituted a severe handicap in securing employment in a competitive labour market" and he has "effectively .....confined to bench work" or sedentary work. Their Honours said in that case (at p. 487):

"Although there is the usual lack of specific evidence dealing with employment opportunities, it would be reasonable to assess the appellant's loss of earning capacity as not less than twenty five percent of his full capacity..."

Using a base figure of approximately K180 per week (being the sum he could have expected to go on earning but for the accident), I assess the plaintiff's loss of earning capacity at 25% of his full capacity, that is K45 per week, subject to an appropriate allowance for vicissitudes. The period of his expected working life is a minimum of 25 years (to age 65) . At an interest rate of 8% the amount of compensation appropriate to this loss would be K25,923. From this figure some allowance would need to be made for unfavourable vicissitudes.

I have reached the conclusion that the plaintiff's pre-accident earning capacity was in the region of K180 per week, and not K180 to K195 as some of the evidence suggested, for the reasons urged upon me by Mr. Challinger. It is clear that the plaintiff's actual net income in the period immediately prior to the accident was less than some of the documentary evidence suggested, principally on account of an over-payment which the plaintiff received.

I have used the abovementioned figures as guides or indicators only and I recognize that there are dangers in an approach involving seemingly precise mathematical calculations. However, I have checked my conclusions against certain other yardsticks. It was argued on the plaintiff's behalf that he might be able to obtain some teaching qualifications and then readily obtain employment as a teacher or manager, but this would cost him (in terms of lost income) somewhere in the region of K25,000. Whilst I am by no means confident that the plaintiff has the ambition and drive to achieve an objective such as that, he would sustain no greater loss than approximately K25,000 if he attempted such a course of training and succeeded in obtaining the necessary qualifications, because once qualified he could be expected to earn in later life, even as a disabled teacher/manager/supervisor, as much as he could have hoped to earn as a mechanic. It was argued on the defendant's behalf that an allowance of K25 per week capitalised at 8% over a period of 20 to 25 years would not be an inappropriate method of calculation. I am content to adopt such an approach but, on the evidence in its totality and notwithstanding its deficiencies, I feel bound to take a figure higher than K25 per week (in fact, K45 per week) and capitalise it over the longer of the two periods suggested (viz. 25 years).

I therefore assess the plaintiff's loss of earning capacity at K24,000 which sum I will include in the general damages award. I also allow K1800 for the plaintiff's loss of earnings prior to the trial.

I allow K3,106.99 for special damages which include the cost of the trip which the plaintiff and his wife made to Melbourne, Victoria, for the fitting of the prosthesis.

Thus the plaintiff is entitled to damages of K54,906.99 made up as follows:

There will be judgment for the plaintiff in the sum of K54,906.99. I order the defendant to pay the plaintiff's costs of this action.

Solicitors for the Plaintiff: Warner Shand, Wilson & Associates.

Counsel: M.N. Wilson, Esq.

Solicitors for the Defendant: Young & Williams

Counsel: M. Challinger, Esq.

N179.html#_ednref146" title="">[cxlvi]^{(1) Unreported Judgment N. 97 of 23/6/77.}

N179.html#_ednref147" title="">[cxlvii]^{(2) (1977) 51 A.L.J.R. (p. 482)}