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Yana v Motor Vehicles Insurance (PNG) Trust [1989] PGNC 116; [1988-89] PNGLR 657; N785 (30 October 1989)

N785

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WARA YANA

V

THE MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J
2 October 1989
30 October 1989

DAMAGES - Personal injuries - Particular awards of general damages - Premature termination of pregnancy - Loss more than solatium - Award of K4,000 general damages - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 29.

The plaintiff claimed damages for personal injuries suffered in a motor vehicle accident in which she suffered stomach injuries as a result of which a pregnancy was prematurely terminated with the birth of a stillborn child. There were no other physical injuries.

Held

(1) The loss of the child was not, in these circumstances, a matter for solatium within s 29 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297).

(2) General damages for pain and suffering and grief for the loss of the child should be assessed at K4,000.

Cases Cited

Parrott v Redland The Co Ltd (1955), Kemp & Kemp, Quantum of Damages, par 7-614.
Pumbu v Tenken [1986] PNGLR 289.

Statement or Claim

This was an action for damages for personal injuries suffered as a result of a motor vehicle accident.

Counsel

P C Kopunye, for the plaintiff.
K K Yalo, for the defendant.
Cur adv vult

30 October 1989

WOODS J: The plaintiff, Wara Yana, was a passenger in a passenger motor vehicle in June 1986 which overturned. She was knocked unconscious but quickly recovered consciousness. She was pregnant at the time and following the accident she was unwell at home and after passing blood she attended a health centre where three days after the accident she gave birth to a dead child.

Liability is admitted and this case has come before me as an assessment of damages.

The defendant has submitted that the damages are limited to the solatium for the loss of the child and that there is no evidence of any physical injuries. The defendant relies here on the Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 29 (the Wrongs Act).

I am satisfied that the loss of the child can be directly attributed to the accident. The plaintiff states that, when the PMV overturned, she had other people fall on top of her.

The medical evidence confirms vaginal bleeding and premature labour, some few days after the accident. The doctor who treated her immediately after the accident could only say that the abdominal injury sustained in the accident may have led to the onset of the premature labour during which the foetus died, or the injury may have caused the death of the foetus, which then triggered labour. However, as no post mortem was conducted, one cannot be sure of the exact train of events.

The plaintiff, later in 1986, underwent a sterilisation operation which she states she had to have because of complications that eventuated from the original accident and premature birth. However, there is no medical evidence to support such causal relationships. Rather, the doctor from Tinsley Health Centre clearly stated that the sterilisation procedure was in no way related to any alleged injury sustained at the time of her accident.

I am satisfied that the damage or loss suffered by the plaintiff is more than just solatium referred to in the Wrongs Act. This was a child in the womb and that has a physical effect as well as the grief for the loss of a child. I am satisfied she would have had some physical pain and mental suffering although her evidence was relatively low-key in this regard, apart from referring to a "lot of pain inside me".

The only precedent referred to me on amounts awarded in a similar situation is an English case, Parrott v Redland The Co Ltd [1955], referred to in Kemp & Kemp, Quantum of Damages, par 7-614 at 7614/11, where 3,000 was awarded by Ormeroo J, to a woman who as a result of an accident had a miscarriage and lost the chance of having a child.

I was also referred to a case on abdominal injuries (Pumbu v Tenken [1986] PNGLR 289). However these were severe stomach injuries and complications following the discharge of a police shotgun. Such injuries resulted in permanent partial disability. I find the present case is not as severe.

I assess an amount of K4,000 for pain and suffering and the loss of the child.

Judgment for K4,000.
Judgment for K4,000

____________________

Lawyer for the plaintiff: P C Kopunye.
Lawyers for the defendant: Young & Williams.