N763

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KAWA OROEALA

V

THE MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani
Hinchliffe J
3-4 May 1989
8 May 1989
23 October 1989

DAMAGES - Personal injuries - Particular awards of general damages - Leg injury - Compound fracture of tibia - Loss of 25 per cent efficient use of leg - Male garbage collector - Award of K9,500 general damages.

The plaintiff, a male employed as a garbage collector, claimed damages for personal injuries arising out of a motor vehicle accident. He suffered a compound fracture of the lower third of the left tibia and fibula which resulted in shortening of the leg, muscle wasting and a 25 per cent loss of the efficient use of the leg.

Held

General damages for pain and suffering and loss of amenities should be assessed at K9,500.

Cases Cited

Pep v Yamba [1987] PNGLR 485.
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Trial

This was an action in which the plaintiff sought to recover damages for personal injuries when he fell from the back of a moving truck. Liability was not admitted.

Counsel

J Bray, for the plaintiff.
R Thompson, for the defendant.
Cur adv vult

23 October 1989

HINCHLIFFE J: The plaintiff was injured on 9 December 1985 when he fell from the back of a moving truck as it rounded a bend from Koki Street into Moyon Street, Port Moresby. The said truck was travelling in a direction away from town and towards the Hubert Murray Highway.

Immediately before his fall, the plaintiff had been sitting on a cane chair which was situated close to the cabin of the truck on the passenger side. The plaintiff, in fact, was sitting with his back to the cabin.

After the accident, he was admitted to the Port Moresby General Hospital suffering from a compound fracture (fracture with open wound over the fracture site) of the lower third of the left tibia and fibula (both bones of the leg). He also had a laceration of the face.

[His Honour then dealt with the issue of liability in a manner not calling for report concluding:]

I am of the view that the plaintiff was more negligent than the driver of the truck and I find the plaintiff to be 60 per cent responsible for his injuries. It follows that the defendant is 40 per cent responsible.

QUANTUM

The plaintiff was admitted to the Port Moresby General Hospital on 9 December 1985 and was discharged on 12 February 1986. He suffered a compound fracture of the lower third of the left tibia and fibula. He also incurred a laceration to the face. Although the plaintiff said he was unconscious for a short time, that is not supported by any medical evidence and I reject it.

In his medical report of 18 November 1987, Hein Danomira, surgeon, says, inter alia, the following:

"He was given intravenous fluids because of blood loss and cleaning and correction of the fracture was carried out under general anaesthetic in the operating theatre on the same day. The leg was kept in a plaster cast

...

When seen by me for assessment of his permanent disability, Kawa Oroeala claims that his left leg is shorter than the right one. It is also weaker and that he is unable to walk long distances or to carry heavy weight particularly over rough terrain.

Clinical examination reveals the following disabilities:

Length of legs:
There is a gross shortening of the left leg ...
... Right leg 84 cm,
Left leg 80 cm.
Dysuse atrophy:

There is loss of the quadriceps (thigh) muscle bulk from dysuse atrophy leading to weakness of the knee with instability. The dysuse atrophy is caused by a prolonged period of immobilisation of the leg. Movements of the knee reveal the presence of crepitus (friction noises) which are more marked on the left knee than the right knee.

X-ray: of the left leg shows malunion (healing with deformity) of the left tibia and fibula.

I have estimated permanent disability as follows:

1. 25% loss of the efficient use of the left leg above the knee for the purpose of heavy manual labour.
2. Total bodily scarring to a maximum of 10% only."

Even though the plaintiff said on oath that he still suffers regular pain, I note that there is no mention of that in the medical reports.

I am prepared to accept that he, at times, does experience some pain but only to a limited degree. Needless to say, the plaintiff suffered a nasty fracture back in 1985 and I have no doubt that at the time and for some months after, he would have suffered severe pain.

Counsel are fairly well in agreement as to quantum and they suggest that general damages should be in the K8,000 to K10,000 range.

I agree with that assessment because it seems to me that in some recent cases a 50 per cent loss of function of a limb attracts an award of about K15,000: see Pep v Yamba [1987] PNGLR 485. In the present case, there was a 25 per cent loss of efficient use of the leg above the knee and, of course, shortening of the leg, muscle wasting and some scarring.

I am of the view that a fair and reasonable figure for general damages would be K9,500.

LOSS OF FUTURE INCOME

I do not propose to grant any award for future loss. The plaintiff is still working at the same job [garbage collector] and I do not accept his evidence that, because of the pain he suffers, he would like to finish working. It seems to me, from the evidence, that the plaintiff returned to his same job and has been working in it now for about three years since the accident. There was no evidence called to indicate that the plaintiff can no longer work or that he is missing a lot of work through pain or the like. He has not been placed in a different job at his place of employment and I would have thought that if he could no longer perform in his job, then after three years he would have been shifted to lighter duties or even have his employment terminated. But that has not been the case. It seems to me that there is no reason at all why the plaintiff cannot see out his working days. It certainly appears from the medical report that his condition has stabilised.

INTEREST

Ms Thompson submitted that if I was to award interest I should only award half of the interest because of "special circumstances" as referred to in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160. It seems that there was a delay by the plaintiff and that the matter could more than likely have been heard in about the middle of 1988 rather than in May 1989. But on what I was told, I am not satisfied that "special circumstances" have arisen and I am of the view that interest should run from the date of service of the writ to the date of trial. Even though there may have been some delay, the defendant has had the use of the money during the delay period.

I therefore order that there be judgment for the plaintiff in the sum of K4,230.61 made up as follows:

General damages  		
40 per cent of K9,500 	K 3,800.00 	
Interest at 8 per cent thereon 	430.61 	
Total 	K 4,230.61 	

I further order that the defendant pays the plaintiffs costs except for the two adjournments to be taxed on the National Court scale.

Judgment accordingly

Lawyers for the plaintiff: Kirkes.
Lawyers for the defendant: Young & Williams.