N626

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

SEKE OPA

V

INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen
Hinchliffe J

19 May 1987
5 October 1987

DAMAGES - Personal injuries - Particular awards of general damages - Head arm and leg injuries - Severe head injury - Boney defect to skull - Blind in right eye - Totally paralysed right arm - Left leg paralysis - Disfiguring - Almost totally disabled - Coffee farmer in mid-twenties (mid-thirties at trial) - Award of K70,000 general damages.

The plaintiff, a village man in his mid-twenties (mid-thirties at date of trial), suffered severe head and other injuries when thrown from the back of a truck in which he was travelling after it collided with another vehicle. His injuries included a severe head injury requiring surgery leaving a boney defect in the skull with risk of injury and infection to the brain; an eye injury resulting in blindness, disfiguring and paralysed eyelid; an arm injury resulting in total paralysis; a leg injury resulting in partial paralysis and loss of ability to eat properly caused by decreased muscle power. As a result of the injuries the plaintiff is able to walk only short distances, cannot attend to his village work and is a virtual invalid whose marriage is in consequence at risk. On the medical evidence neither the plaintiffs intelligence nor his life expectation had been seriously impaired.

Held:

Damages for pain and suffering and loss of amenities should be assessed at K60,000.

Cases Cited

The following cases are cited in the judgment:

Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350.
Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557.
Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.
Meddie Serive v The Independent State of Papua New Guinea [1981] PNGLR 549.
Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294.
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.
Pupu v Tomilate and Papua New Guinea [1979] PNGLR 108.
Rohrlach v Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185.
Yap, John v The Independent State of Papua New Guinea (unreported, WS No 92 of 1984).

Statement of claim

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

Counsel:

D O’Connor, for the plaintiff.
D Lambu, for the defendant.
Cur adv vult

5 October 1987

HINCHLIFFE J.: On 4 March 1976, the plaintiff was travelling in the back of a Toyota Dyna truck when it collided with a Toyota 6000 truck, owned by the defendant. Due to the collision the motor vehicle in which the plaintiff was a passenger veered into a ditch at the side of the road and the plaintiff was thrown from the said motor vehicle. He suffered from what could only be described as "serious injuries". The defendant has accepted liability. The plaintiff, in the writ of summons, only claims damages for injury caused to him by the negligent driving of the servant of the defendant. At the trial the plaintiff also asked for loss of income in the past and for the future. There was no objection taken by the defendant on that point and therefore I propose to calculate, in due course, the plaintiffs loss in that area.

A private medical practitioner, James Prestwich Nelson, gave evidence which indicated a dismal future for the plaintiff. He said, inter alia, in his medical report of 5 February 1987 (exhibit A) that the plaintiff had received a severe blow to the right side of his head, a dislocated jaw and also a severe blow to his right eye. The said report goes on to say that:

"He probably had an intra-cranial exploration with removal of blood clots from inside his head. Presumably bone fragments from the fracture of his right parietal bone were removed and the brain linings inside the skull and the scalp tissues outside were sewn up. He still has a large defect with total absence of skull bone. It is an irregular oval shape 6 cms x 5 cms. He therefore runs the risk of injury or infection of the brain through this defect. This defect directly overlies the part of the brain concerned with muscular movements of the other side of the body. The right brain controls the left body.

He has a weakness of the muscles of the left side of his face, this causes him to dribble when feeding or drinking. His left arm is totally paralysed with a ... deformity at the elbow. He has marked weakness of the left leg. He cannot walk far on the flat, he cannot manage rough ground or hills. He cannot walk in the garden or build houses ... the above is caused by the right brain injury.

His right eye is totally blind ... his right eyelid is paralysed. This was caused by the blow to his face. He cannot chew hard food for long ....

(1) Severe head injury — boney defect to skull, risk of injury to brain (or infection) — 20% disability.

(2) Totally blind right eye — disfigured — paralysed right upper eyelid — 100% disability.

(3) Loss of ability to eat — decreased muscle power — tendency to dribble — 20% disability.

(4) Left arm paralysed totally — 100% disability.

(5) Left leg partial paralysis — 66% disability.

He is severely handicapped, he cannot get paid work, work as a village man — gardening, house building etc.

At time of examination he did not try to exaggerate his problems. He responded frankly and honestly."

Whilst in the witness box the doctor said that the plaintiff is intelligent and that he has not lost that intelligence through the injury. "Therefore that is worse for the plaintiff. If he had been brain damaged it would not be so bad." The doctor went on to say that the plaintiff is likely to live to 55 or 60 years of age and that there is nothing that can be done to improve his condition.

The plaintiffs evidence confirmed what was said in the medical report and it could be seen quite clearly when the plaintiff was giving his evidence that he has suffered serious and permanent injury.

There is no doubt from what his wife said that the plaintiff over the years has done little more than sit about all day, unable to work in the coffee garden. His ability to walk is limited to very short distances and even then, only on flat ground. That of course would make it very difficult for him living in a village situation. It is also clear to me that this tragic accident has caused severe strain on the marriage as it is now the wish of the plaintiffs wife to leave her husband. She claims to be overworked and not getting any support. It seems that in the past the plaintiffs parents worked in the coffee garden but they are now too old to be of any real help. She also is raising four children, two of whom were born before the accident.

The plaintiff has not, since 4 March 1976, been able to work. It is clear that his working days are over and that he will be an invalid for the rest of his life. He stated in his sworn evidence that when he was working in the coffee garden with his wife and others he would receive between K400 and K500 per annum. Now the income from the garden is only K200 in a good year. He also stated that prior to the accident he had plans to extend the coffee garden as he had extra land but of course that never came to fruition.

Phillip Pangun, an officer of the Department of Primary Industry and the Provincial Coffee Co-ordinator for the Western Highlands Province gave evidence that he visited the plaintiffs coffee garden on 16 May 1987. He saw 1308 mature coffee trees between 10 and 15 years in age and noted that they had not been "properly managed over the last couple of years". The trees had not been pruned, there were weeds about and signs of pigs having been present. The witness stated that the trees generally appeared to be unhealthy. He also observed poor drainage and coffee rust in its third stage.

A part of the examination-in-chief of Mr Pangun went as follows:

"Q. From your knowledge of coffee production how much would the plaintiffs family be harvesting?
A. Income would be about K400 to K450 per year.

Q. About 10 years ago when the coffee trees were young, the plaintiff said he received about the same then. What do you think?
A. About K300 to K350 per annum.

Q. If he had been in good health and with help from his wife and with a small extension — how much would he earn?
A. K800 to K850.

Q. What about the future. Will the plantation produce the same or less?
A. In five to six years time the figure will decrease to K100 or so. In 10 years times — nothing."

I was impressed with Mr Pangun as a witness. He certainly knew his topic and delivered his evidence in a professional manner. I accept what he said.

Therefore after reading and assessing all the evidence I now must consider the appropriate figure for damages.

The purpose of an award of damages is to place the plaintiff as far as money can in the position he would have been but for injury: see Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557.

There is no doubt that the plaintiffs life has been shattered. Since 4 March 1976, he has more or less been unable to move about. He is able to walk short distances only and he is unable to work. His marriage has suffered and generally speaking he does little but sit about the house all day. His lawyer has asked me to consider the plaintiffs case in the same light as that of a paraplegic. I do not propose to do that because a paraplegic is unable to walk and more often than not he is unable to perform the sexual act. That is not the case with the plaintiff in that he and his wife have had two more children since his accident.

What is clear though is that prior to the accident the plaintiff was a healthy, hardworking man in his mid-twenties who had a bright future and good opportunity to extend, what appeared to be, a prosperous coffee garden. His accident ended all of that to the extent that his future is now dim. A severe blow to his head could cause almost immediate death or infection.

Both lawyers cited past cases in their submissions and I have considered them in coming to a decision. Of course as has often been stated in this type of matter, past cases can be helpful but as every case is different, they can only be used as a guideline by the trial judge.

In Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350, the first named plaintiff was awarded K90,000 and the second-named plaintiff K75,000 for pain and suffering and loss of amenities. Both plaintiffs were rendered paraplegic with a life expectancy of five years.

It seems to me that the present case is not as severe as that case and of course the plaintiff has a normal life expectancy.

Another case concerning a paraplegic was John Yap v The Independent State of Papua New Guinea (unreported, WS No 92 of 1984) where Los J awarded the plaintiff K70,000 for pain and suffering.

Mr Lambu, for the defendant, cited a number of "paraplegic cases" such as Pupu v Tomilate and Papua New Guinea [1979] PNGLR 108 where the plaintiff was awarded K30,000 for pain and suffering; Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 where the plaintiff received K60,000 for pain and suffering. He also cited Meddie Serive v The Independent State of Papua New Guinea [1981] PNGLR 549 when Pratt J awarded K45,000 to the plaintiff who had become a paraplegic.

The past cases involving paraplegics clearly differ considerably in relation to damages. Needless to say they are useful guidelines.

The defence lawyer also referred me to Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294 where Los J awarded K35,000 for pain and suffering in relation to the 100% loss of the use of the left upper limb and 75% loss of the left lower limb. Also in the matter of Rohrlach v Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185, Barnett AJ (as he then was) approved settlement on the plaintiff of K52,462 for the loss of vision in one eye.

Mr O’Connor who appeared for the plaintiff submitted that the appropriate sum for pain and suffering is K90,000 and Mr Lambu suggested a figure somewhere between K40,000 and K55,000.

I am of the view that a fair and reasonable amount for pain and suffering and loss of amenities is K60,000, and I so order.

Interest should be calculated at 8 per cent from the date of the service of the writ, (10 July 1980) to the date of trial: see Pinzger v Bougainville Copper Ltd [1985] PNGLR 160. Therefore interest on the said K60,000 will be K32,800 over a period of six years and 10 months.

In relation to loss of income past and future, I am only able to come to what I consider a fair and reasonable figure on the evidence before me. It seems that if the accident had never occurred, the plaintiff from March 1976 to May 1987 would have received approximately K5,800. Due to the accident and its consequences I am satisfied that the plaintiff derived approximately K3,000 from his coffee garden, therefore losing about K2,800. In accordance with Pinzger v Bougainville Copper Ltd interest on special damages (including loss of wages) should be awarded at 4 per cent from the date of injury to the date of trial. That is interest of K1,252 over 11 years and two months.

The doctor indicated that the plaintiff may well live another 20 years or so. If the plaintiff had been able to tend to his coffee garden over the next 20 years I have no doubt that he still would have derived an income from it. Even though the income would more than likely not increase because the trees would be older, there is a coffee rust problem and also the fact that there would be good seasons and bad seasons. The plaintiff would have been getting older and not able to work as efficiently as he did when he was younger. Indeed it appears that the income over the years would decrease. The present situation indicates that there will be no income within 10 years. I am of the view that a fair and reasonable figure for income over the next 20 years would be K8,000. In H Luntz, Assessment of Damages in Personal Injury and Death, (2nd ed, 1983) table 1 (compound interest tables at 3 per cent per annum) at 542, it indicates that the discounted figure after 20 years is K4,440.

I order that there be judgment for the plaintiff in the sum of K101,292 made up as follows:

Pain, suffering loss of amenities	K 60,000.00	
Interest thereon	32,800.00	
Loss of past income	2,800.00	
Interest thereon	1,252.00	
Loss of future income	K8,000.00	
Adjusted according to the said table1	4,440.00	
Total	K101,292.00	

I further order that the defendant pays the plaintiffs taxed costs.

Judgment and orders accordingly

___________________________________

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