N844

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

DAVIS

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

19-20 March 1990
24 May 1990

DAMAGES - Personal injuries - Particular awards of general damages - Whiplash injury - No loss of work for 12 months - Disc lesion requiring surgery - Minimal residual effects - Termination of service - Continuing employment - Male aged 53 years - Motor mechanic/fleet manager - Award of K15,000 general damages.

DAMAGES - Measure of - Personal injuries - Economic loss - Age of retirement - Benefits of employment package - Cash in hand benefits only relevant.

The plaintiff, a New Zealand male aged 53 years employed as a fleet maintenance manager by Burns Philp, claimed damages for a whiplash injury arising out of a motor vehicle accident. Twelve months after the accident a popped disc was diagnosed and operated on, leaving minimal residual problems. The plaintiffs services were thereafter terminated on medical grounds though he continued to work in other employment as a mechanic.

Held

(1) General damages for pain and suffering and loss of amenities should be assessed at K15,000.

(2) For the purposes of assessing damages for economic loss:

(a) benefits received by the plaintiff as part of his employment package which did not represent cash in hand, (such as accommodation, car, airfares an educational fees) could not be taken into account;

(b) whilst 55 years is the age of retirement in the Public Service in Papua New Guinea, the particular circumstances, including actual employment beyond that age, indicated 60 years to be a more appropriate retirement age.

Cases Cited

Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611.
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436.

Action

These were proceedings in which the plaintiff claimed damages for personal injuries arising out of a motor vehicle accident.

Counsel

I Molloy and J Hasu, for the plaintiff.
R Thompson, for the defendant.
Cur adv vult

24 May 1990

WOODS J: This is a claim for damages for injuries received in a motor vehicle accident. The plaintiff was driving a motor vehicle along Scratchley Road, Port Moresby on 14 August 1981. He had stopped to turn right across the road into Moresby transport depot when a following Mazda motor vehicle, registered no ADH 842 insured with the defendants, struck his vehicle from behind. The plaintiff suffered shock and his neck was jerked and a jack behind his seat struck his back severely. The plaintiff is claiming damages for the resultant loss from these injuries.

Judgment was signed against the defendant on July 1985 and this matter comes before me on an assessment of damages.

At the time of the accident the plaintiff was fleet maintenance manager for Burns Philp Motor Fleet. This was by virtue of his training initially as a motor mechanic with later experience as a diesel and marine engineer. He had already performed one contract of three years with Burns Philp and was just starting a fresh contract. Prior to that he had had many different positions, first in New Zealand, then in Cook Islands, Samoa and since 1975 in Papua New Guinea. His duties as fleet manager included being responsible for the maintenance, servicing and everyday running of up to 150 vehicles ranging from trucks, semi-trailers to cars and forklifts. Whilst being the manager, he still did a lot of hands-on work himself supervising the work being done. When the accident happened he recalled having a hurt neck, a hurt back and being a bit dazed. People helped him out of the vehicle and into his office which was nearby. He declined to go to the doctor but decided he was alright and just had a sore neck. One of his employees drove him home and he went to bed. He did not sleep well so next day, as he still had some pain, he went to see Dr Jacobi who prescribed painkillers and some physiotherapy and said his back was bruised. The plaintiff returned to work and never took a day off. He states however that the pain in his neck remained constant although pain in the back eased gradually. He states that the pain and a slight loss of memory started to affect him in his work. He found he could not do the hands-on part of work, he could not get under vehicles to check the work etc. He had some physiotherapy for a while but it made him worse. He also states he had trouble with normal sexual relations and this caused arguments with his wife. He was a regular bowler but started having difficulty with his bowling.

Dr Jacobi referred him to a Dr Boyce in Cairns, in October 1981, who prescribed some medication and shots in the back of his neck. In 1982, he was admitted to Hospital in Cairns under Dr Boyce who x-rayed and did tests on his spine. Dr Boyce diagnosed a popped disc and this was pressing on the spinal column. He was not to do any more physical exertion and Dr Boyce recommended an operation.

At that time, the plaintiff was concerned about his ability to perform his job fully. He states he discussed this with his employees and he terminated his employment in October 1982.

There is argument over the circumstances of this termination. Was it voluntary or was it forced on him by the company because of his inability to perform his work? It appears from the evidence that the employer was unaware of any problems until the report from the doctor in late 1982, over a year after the accident. Up until then the plaintiff had taken no time off work and had submitted no claim for workers’ compensation which he could have been entitled to do as the incident happened while at work. Whilst it is commendable that a person does his best to stay at work this appears to be more than that; it would seem from the employer point of view that his work was not affected. Whilst he may have had some difficulties crawling under vehicles, was that really his job? However, the letter from the company referring to termination on medical grounds presumably follows the discussion and details of the medical report and the need for the operation in Brisbane in November 1982. I accept therefore that the injuries received in the accident were the reason for the termination.

To say that the plaintiff had security of employment with Burns Philp is not altogether correct as the termination clause in the agreement was completely open. The clause stated: "The contract may be terminated by either party giving the other two months notice in writing or payment of 2 months salary in lieu."

There is no clause restricting termination by the employer to specified reasons. The terms of the contract were not embodied in a contract of employment but rather were included as part of a letter. The new contract was offered in a letter to the plaintiff in September 1981, that is, a month after the accident and further, in October 1981, the plaintiff was offered an increased salary in the light of his responsibility, work load and working conditions. Then, in July 1982, the plaintiff was offered a further increase in salary.

The plaintiffs employment therefore seems to be a more casual arrangement and not a secure contract for three years, and there was the right to terminate at any time, on two months notice.

What has the plaintiff lost through his injuries? The assessment of his loss is made more difficult by the fact that there was no full analysis of any workers’ compensation claim at the time. Thus, there was no real loss from the date of the accident till his termination in October 1982. Then whilst his injuries may have led to some hospitalisation for operations, they have not stopped him from working completely.

Since his termination in October 1982 he has had a number of jobs in mitigation of his loss so we have some clear figures to work from. However, certain factors must still be mentioned. What is the salary he has lost by leaving his employment with Burns Philp?

At the time of his termination his salary was K20,750 gross per year and the net figure per week was K319.

Whilst he was getting accommodation from his employer this is not part of salary but clearly an allowance for the contingencies of accommodation in a foreign country. This is not necessarily a figure that can be added to salary as a loss once the plaintiff had returned to his home country. Rent for a house in Papua New Guinea is not cash in hand. It can be included as a figure where he had to pay amounts for accommodation; for example, the accommodation in Brisbane whilst he was in hospital should be allowed as it was still during the period of notice. The actual cost of his accommodation in Cook Islands can be allowed as it was for part of the period of the balance of the agreement with Burns Philp.

The value of a car was not a part of his salary entitlement. His contract with Burns Philp makes no mention of a car for personal use. The car was purely for his use in his employment.

Airfares are only relevant because of his employment as a foreigner in Papua New Guinea to enable him to return to his home for holiday. It is not a salary loss.

The educational fees that the company would pay were not cash in hand but were only because of his employment as a foreigner in Papua New Guinea to enable him to educate his children in his own school system whether back home overseas or in an international school. Once he left Papua New Guinea to return to his own culture they would no longer be relevant.

We are therefore left with the net salary of K319 per week. Being employed as a manager on a salary, there would be no provision for overtime.

How long would he be able to earn this or an equivalent salary. Whilst in Papua New Guinea the retiring age in the public service is 55 years and for dependency claims this is the figure used: see Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611. However, in fact, the plaintiff had returned to his own culture where retirement is often around 60 years, or at least where he was continuing to work past 55. The plaintiff was 53 years at the time of the accident and he had a three year agreement with Burns Philp. He was a man who had a mixed employment history, many job changes; on his history and by virtue of his age it is highly unlikely he would have continued past 55 years at Burns Philp. But any sort of injury to a man of his age would clearly make it difficult for him to get as good an employment as he may have had.

However, he did continue with various jobs in Cook Islands and New Zealand after leaving Papua New Guinea so I will allow for what he could have earned as against what he did earn until 60 years of age which would be till September 1988.

A net salary of K319 per week multiplies to K16,588 per year; or do I take the other figure supplied of expected earnings as a mechanic in New Zealand? Quite clearly I think it is appropriate to use the figure of K319 per week for the balance of the existing contract with Burns Philp till 1984. After that, however, as there is more likelihood of his having returned to his home country then and to allow for increases in inflation I should use the figures given of expected earnings.

He terminated on 4 November 1982, but received a further three months salary so his loss of income dates from 4 February 1983. Loss of income for balance of period to 30 June 1983 is 21 weeks which equals K6,699.

1 July 1983 to 30 June 1984 expected income K16,588 
Actual income received 3,074 
 K13,514 

On 1 July 1984, his contract with Burns Philp would have terminated. I therefore take the figures given of estimated earnings of a mechanic in New Zealand.

1 July 1984 to 30 June 1985 estimated income  $19,760 
Actual income received  $ 4,878 
 Loss $14,882 

1 July 1985 to 30 June 1986 estimated income  $22,000 
Actual income received  $15,184 
 Loss $ 6,816 

1 July 1986 to 30 June 1987 estimated income  $25,000 
Actual income received  $27,033 
 Loss NIL 

1 July 1987 to 30 June 1988 estimated income  $28,000 
Actual income received  $ 9,500 
 Loss $18,500 

1 July 1988 to 30 Sept 1988 estimated income  $ 7,709 
Actual income received — Pension at 124 per week  $ 1,612 
 Loss $ 6,197 

Total loss of income  K20,213 

and  $46,395 

I allow motel accommodation in Brisbane as this was while he was still technically employed with Burns Philp but in hospital. I allow amounts of motel accommodation totalling A$2,560. I find nothing unreasonable in going to Australia for this medical treatment as at the time it was being arranged while being employed by Burns Philp.

The only other figure for rent up to July 1984 is the rental accommodation at Cook Islands, namely 32 weeks at K42 per week.

Out-of-pocket expenses, being for various hospital and medical expenses, come to K2,611.01.

In general damages, whilst the plaintiff may have suffered and still be suffering some pain, considering that he kept at his job for a year after the accident without a single day off, suggests the pain was only minor.

There did not appear to be many restrictions as he was able to continue playing bowls. The plaintiff still suffers some pain and this is confirmed in the medical reports of Dr Kulunga.

This is not the most serious of cases and is not near the difficulties noted in Pinzger v Bougainville Copper Ltd [1983] PNGLR 436. I assess an amount of K15,000 for general damages.

I allow interest on the loss of income at 4 per cent from the effective date of termination, namely 4 February 1982.

I allow interest on the out-of-pocket and other special damages at 8 per cent from the date of issue of the writ.

I allow interest on the general damages at 4 per cent from the date of the writ.
To summarise:

Loss of income K20,213.00 plus  
$46,395 at 1.70 being an average rate K47,504.17 
Aus 2,560 at 1.35 K 1,896.29 
Other rentals K 1,344.00 
Out-of-pocket K 2,611.01 
General damages K15,000.00 
Interest on K47,504.17 at 4% from 4/2/82 K15,768.77 
Interest on K3,955.01 at 8% from 6/5/85 K 1,597.60 
Interest on K15,000 at 4% from 6/5/85 K 3,029.59 
 K88,751.43 

I order judgment for K88,751.43.

Judgment for plaintiff for K88,751.43

___________________

Lawyers for the plaintiff: O’Connor & Hasu.
Lawyers for the defendant: Young & Williams.