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Maraipa-Daeani v Bagari-Dubere [1963] PGSC 43 (14 November 1963)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

W.S.106 of 1963 (P)

MARAIPA-DAEANI
Plaintiff

And

BAGARI-DUBERE
Defendant

Mann, C.J
Port Moresby.
14/11/63

REASONS FOR JUDGMENT

This is a claim for damages for personal injuries arising out of a motor car accident. The only issue for determination before me is the quantum of damage. Liability is admitted.

The Plaintiff, a 25 year old Apprentice Joiner and Carpenter, was walking along the road when he was struck by the vehicle driven by the Defendant. He was taken to hospital where he received treatment for his injuries for just over a month. X.-ray photographs disclose a fracture in the right parietal bone but this injury appears from subsequent examination to have cleared up satisfactorily. At the time of the hearing of the case there was no observable physical injury which would suggest any permanent lose of function or other permanent disability. He had extensive minor lacerations which again responded to treatment and afforded no positive indication of other injury.

Notwithstanding the absence of observable physical causes, there is no doubt that the Plaintiff suffered some kind of injury which kept him in a semi-comatose state in hospital for a month. During that time it was found that the Plaintiff was extremely sensitive to the touch, and when approached for any sort of treatment, he became highly excited and fought off anybody who touched him. Men he was admitted to hospital he screamed out in agony at frequent intervals.

On his return to work after the accident the Plaintiff was found to have undergone a substantial change in his attitude towards work and in his capacity for it. On medical advice he went back to his village for three months leave, and this brought about an improvement in his condition, but he is still left very much below his normal level of efficiency. The Plaintiff has suffered recurring headaches, and although these have diminished in severity, he is not as yet by any means free from them. There would appear to be something wrong with the Plaintiff's balancing mechanism, for he walks as if feeling his way and with uncertainty and has shown on several occasions a tendency to lose balance when making a sudden turn in response to an unexpected call. He is afraid to run for fear that he will fall over.

I am satisfied on the medical evidence that all of these things were due to the injuries received in the accident. For lack of observable physical damage, the medical experts have been unable to identify the particular cause of the pattern of behaviour which has undergone such a marked change, but it is not necessary for me to determine what precise damage, if any, was done to the brain or nervous system of the Plaintiff so long as I am satisfied that the behaviour pattern is genuine and is the natural consequence of the injuries received. Mr. Smyth, the Senior Specialist Surgeon, has a name for the Plaintiff's condition. It is termed a post-concussion syndrome, and this condition is medically recognized as a consequence of cerebral irritation and damage. There is no doubt about the genuineness of the Plaintiff's condition, for he has suffered much discomfort and pain and his whole pattern of behaviour has been quite consistent, extending back into time at which any suggestion of litigation neurosis must in all fairness be rejected as a possible explanation.

From the point of view of the Plaintiff's claim, the difficulty about his present condition is that it is not possible to assess its permanence or otherwise with any high degree of confidence. Whilst he has shown improvement, the rate of improvement up to the present time would be far too little to restore the Plaintiff to anything like the position in which he was formerly placed while he is still young enough to take full advantage of his opportunities for advancement. His chances of recovery are further complicated by emotional factors. His whole position in life has changed.

Prior to the accident the Plaintiff was one of the most promising Apprentice Joiners and Carpenters to have come before the Apprenticeship Board. Mr. Cox, the Executive Officer of the Board, had noticed over a considerable period of time the Plaintiff 's unusual ability and. capacity for work. The marks gained at examination were very high, Mr. Cox was quite satisfied that the Plaintiff had the capacity to undertake higher training with a view to becoming a Teacher or Instructor in his trade. If he succeeded in this field he was assured a very good career, either in the Public Service or in some industrial field. As an Apprentice he had served with considerable credit in the Workshops of John Stubbs and Sons Ltd. and by now he would be receiving wages of about £11 per week if he were able to continue with his work there. His prospects for advancement would be very good.

At the present time the Plaintiff appears to have lost these opportunities. His present value commercially has been variously estimated, but it would appear that although he might be capable of earning £4 or £5 per week in rough carpentry work, a carpenter who cannot do better than that is not worth employing in a commercial organization in which he is likely to waste and damage a lot of valuable materials. As a teacher at the present time he would be as much as 50% of that of a normal tradesman, and this might afford a useful skill should he go back to his village environment, but would hardly give him any sort of career.

Another factor which affects the Plaintiff's position and complicates the assessment of his prospects is that in the same accident in which he himself was injured, his uncle was killed. I was not told the precise relationship of this uncle, but it is well known that in native society relatives coming within this broad classification do sometimes occupy a position of very special family and individual importance. Moreover, the death of an uncle might well impose upon the Plaintiff new responsibilities towards others which would very much affect the desirability of his pursuing an urban career.

One factor suggested during the trial was that his native social background would impose upon the Plaintiff some obligation to retaliate or seek compensation against the driver of the motor vehicle or his family. The Plaintiff comes from a long-settled and peaceful part of the Territory and one should not attribute to him any personal animosity towards the driver, but at the subconscious mental level there may be significance in the present situation.

As explained by the Senior Psychologist, Mr. Ord, the position may well be this, that the Plaintiff, having left the village home environment to pursue an urban career, had been eagerly looking forward to a civilised and urbanized life at a comfortable economic level. The same accident which deprived him of this career has presented him with a picture of tribal obligations and responsibilities inconsistent with the career that he had been hoping for. For emotional reasons he now wants to rectrace his steps and go back to the village. He has been badly hurt by the civilization that was leading him along new paths, and now with his confidence gone and his capacity severely impaired, he feels that his only course is to go back to the village. He may be able to find a satisfactory life for himself there, and if he does his recovery might be very materially assisted. This might even make it possible for him to return to the career upon which he had formerly embarked.

Psychological tests designed to eliminate as far as possible cultural experience have clearly demonstrated that the Plaintiff's intelligence stands well above average. Although, earlier tests were not available for comparison, it is a clear inference that if his intelligence is diminished at all, it is certainly not diminished to a large extent or to an extent which would explain the Plaintiff's present condition. This again indicated the possibility of emotional conflicts from which the possibility of recovery might be expected.

It appears to me from every point of view that the damages which ought to be awarded to the Plaintiff are very much at large. On the one hand it is possible that in a few months' time he will be able to resume his career without further loss; on the other hand, if his present condition continues, the Plaintiff would clearly be much better off in the village where his opportunities for producing a useful income will be meagre.

He has lost the opportunity of participating in sports and in many other forms of enjoyment to which he was accustomed. He showed marked capacity for sport, brightness and leadership, before the accident, but now is dull and appears depressed and lacking in confidence.

The Plaintiff has suffered quite substantial pain and suffering and although the headaches by now respond to simple treatment, he has the prospect of continuing for some unknown time to suffer from this cause. The special damages amounting to £29.4.0 are admitted by the Defendant. Other losses have already been paid. I think that I should say that the special damages would have bean very much higher, but with commendable generosity the Plaintiffs employer has paid his other expenses.

I must approach the question of damages and make an assessment as best I can, trying to approach the matter as it might be approached by a jury. I assess the general damages at £3,500 and allow the special damages of £29.4.0

There will be judgment for the Plaintiff in the sum of £3,529/4- with costs to be taxed.