N559

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KAMA PUPTI

V

THOMAS KUDJIP AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Waigani
Woods J
13 July 1986
5 September 1986

DAMAGES - Personal injuries - Particular awards of general damages - Back and arm injuries - Compression fracture of spine - Fractures of left forearm - Restricted movement of arms - Tenderness of lumbar spine - Minor disability - Village woman in middle thirties - Award of K20,000 general damages.

The plaintiff, a village woman in her mid thirties, claimed damages for personal injuries arising out of a motor vehicle accident. The principal injuries suffered were a compression fracture of the lumbar spine and fractures of both bones in the left forearm. The continuing disabilities included tenderness of the lumbar area and some restriction of arm movement and use especially for weight bearing.

Held

Damages for pain and suffering and loss of amenities should be assessed at K20,000.

Cases Cited

Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557.

Trial

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

Counsel

D O’Connor, for the plaintiff.
L K Karri, for the defendant.
Cur adv vult

5 September 1986

WOODS J: This is an action for damages for personal injuries following a motor vehicle accident involving two vehicles. The plaintiff was a passenger on a motor vehicle registered number 5860 which collided with a Government owned motor vehicle registered number ZGC 684 on 18 September 1981. The accident occurred when the vehicles collided on a bridge and the vehicle the plaintiff was on rolled over and she was thrown into a river.

The plaintiffs injuries were a compression fracture of her spine and a fracture of both bones in the left forearm.

Liability is admitted and the matter has come before me as an assessment of damages.

The plaintiff was hospitalised for about three weeks then discharged with her arm in plaster. The plaster was removed on 18 December 1981.

When seen in February 1982 she had non-union of the forearm bone fractures and recurrence of the original deformity. Surgery was then advised for pinning or plating the bones and applying bone grafts from the pelvis. The plaintiff refused this surgery and her arm was put back into plaster. The doctor who saw her in 1982 predicted that such injuries could lead to future back pains.

The plaintiff has been examined more recently by Doctors Kulunga, Nelson and Seta. There has been good union of the fractures but she has restricted movement of the arms and tenderness on deep pressure to the lumbar area. The plaintiff is mobile but she cannot tolerate heavy weights or labour. The doctors give different estimates for the loss of efficient use of her forearm from 20 per cent to 50 per cent loss.

I am satisfied there is some minor disability and in view of the different estimates of the doctors I must make an estimate based on their evidence.

The lawyer for the defendant submits that if the plaintiff had agreed to have an operation for a bone graft the disability to her arm could have been corrected. The plaintiffs evidence here is that she refused the operation because it would have involved taking some bone from her right hip and as she had already had trouble with her right hip namely bruising in the accident, she refused. I find this not an unreasonable attitude from a village woman unsophisticated in the ways of modern surgery and treatment.

"I did say no because I have two bones broken in my hand and I had this in my back that is why I feel so much pain and said no."

The plaintiff is a village woman aged in her mid thirties. Whilst she may not be the main breadwinner in the family nor would she be assessed on the basis of having been able to obtain employment in the cash economy I must place some value on her role as a village woman which entails a role as a subsistance gardener and helping with a cash crop like coffee. Women in Papua New Guinea do play a very important role in the provision of food not just to eat at home but to sell at market. Also if there are marketable crops like coffee they would take an important role there.

I note the comments of Miles J in Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557 at 564 that "it will often be the case that the court will have very little evidence to work upon where the plaintiff is engaged in gardening or hunting with little participation in the cash economy". As was accepted by Miles J, in that case "[I] must assess some compensation in this regard".

As there is no real evidence of her share of coffee or of any cash sales at market of surplus vegetables I am unable to find a separate figure for economic loss. Instead I will include an allowance for such loss in an assessment of loss of amenities in the heading pain and suffering and loss of amenities.

Under that heading I will allow a figure of K20,000.00.

As part of that figure is for the period up till now I will allow interest on half of that figure at 4 per cent from the date of accident 18 September 1981 till to day.

Final verdict is:

General damages K20,000.00 
Interest 1,985.00 
 K21,985.00 

I order judgment for the plaintiff in the sum of K21,985.00.

Verdict and judgment accordingly

__________________

Lawyer for the plaintiff: D O'Connor.
Lawyer for the defendant: State Solicitor.