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Iapidik v Green and Towinanana; Tomeli v Green and Towinanana [1964] PNGLR 178 (18 December 1964)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 178 - Iapidik v Harry Neville Green and Towinanana and Tomeli v Harry Neville Green and Towinanana

[1964] PNGLR 178

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IAPIDIK

V

HARRY NEVILLE GREEN AND TOWINANANA

AND

TOMELI

V

HARRY NEVILLE GREEN AND TOWINANANA

Rabaul & Port Moresby

Ollerenshaw J

3-5 November 1964

18 December 1964

NEGLIGENCE - Damages - Quantum - Husband and wife - Separate action heard together - Personal injuries - Economic loss in terms of subsistence economy and small cash crop income - Loss of amenities in context of tribal living - Deduction from damages for contingencies - Loss of consortium - Conservative valuation of loss - Husband’s entitlement to economic loss flowing from injury to spouse.

Iapidik, a Tolai woman and her husband Tomeli sued in separate actions against the same two defendants. In both actions the only issue was quantum of damages and by consent the two actions were heard together. The plaintiff Iapidik had sustained permanent and disabling injuries to her right leg, knee and ankle joint with attendant cosmetic deformity and risk of arthritis. Her action was for damages for personal injuries. Her husband Tomeli sued to recover damages for the loss of consortium including loss of servitium.

Held:

(1)      For Iapidik’s physical injuries, pain, damage to and interference with the function of her leg and loss of enjoyment of life considered in the context of village life damages should be allowed at £1,490.

(2)      Since the only employment available to Iapidik as the wife of a villager was in her husband’s gardens and the proceeds of sales therefrom belonged to her husband, she could not claim for the economic loss resulting from her loss of ability to work; however she was entitled to damages for the loss of her earning power resulting from the injury and as it was reasonable to assume that she would lose some of the benefit of the family income that would have been obtained from the gardens had she not been injured, she was entitled to a proportion of the economic loss, her portion of which was assessed at £160.

(3)      A reduction of damages on account of future contingencies is only one factor to be taken into consideration in assessing compensation.

(4)      The assessment of damages for the loss of consortium should not be restricted and conservative but should be approached in the same way as the assessment of damages in other claims arising from torts, bearing in mind the limitations inherent in monetary compensation. In the present case appropriate compensation for the temporary loss of total consortium was £30.

(5)      Tomeli was entitled to the balance of the economic loss represented by the loss of his wife’s services in his gardens and the loss of sales of their produce, which losses arose from his wife’s injuries; damages for this loss were allowed at £320.

(6)      Tomeli was entitled to compensation for the partial loss of Iapidik’s domestic services due to her reduced capacity to perform her traditional duties and under this head of damage he was allowed the sum of £150.

Counsel:

Cruickshank, for the plaintiff in both actions.

Smith, for the defendants.

The facts are set out in his Honour’s judgment:

OLLERENSHAW J:  Iapidik sues to recover damages for personal injuries received in the course of an interrupted journey from Vunadadir on the morning of Saturday, 28th April, 1962, when a truck owned by the Defendant, in which she was a passenger, overturned. She was taking produce from her husband’s gardens near their village of Rabagi to offer it for sale in the native market at Rabaul.

Her husband, Tomeli, sues to recover damages for the loss of her comfort, companionship and assistance. Included in this claim for loss of consortium is his claim for loss of servitium.

These actions were heard together in pursuance of an order made by me by consent and the only issue in each is the amount of damages to be awarded.

Mr. R. W. Cruickshank appears for the plaintiffs and Mr. Kevin Smith for the defendants. I am indebted to them for the assistance which they have given me in this and in similar actions which I have heard in my recent Circuit Sitting of the Court at Rabaul.

IAPIDIK’S ACTION

She suffered an impacted fracture of her right femur and a compound fracture of her lower right tibia and fibula. Associated with these fractures, she received what must have been a very severe cutting of the lower third of this leg down the interior aspect. Her right knee was wrenched, most probably severely and certainly damaging its ligaments. She was taken to Nonga Base Hospital where she remained for six months with her leg immobilised in plaster from the sole of her foot to her hip. The plaster was changed after the first three months. She was discharged with her leg still in plaster and this was left on for a further six weeks.

She said in evidence that when she was in hospital her body felt quite all right except her leg which was painful.

The Medical evidence of Dr. Pharoah of Nonga Base Hospital is to the effect that her pain would have been severe to begin with - that she would have had pain from her fractured femur for at least eight weeks, and that the duration of the pain associated with the fractured bones of her leg would have depended on how long it took all the tissues to unite. The doctor also said that pain-killing drugs would have been administered from immediately after her admission to hospital.

Iapidik is about forty years of age and it was conceded by counsel for the defendant and accepted by counsel for the plaintiff that she had what they called an “economic life” of fifteen years and in the normal course she will live for about another twenty years or so. With respect to her “economic life” however, it must be observed that her only employment would have been in her husband’s native gardens and in the sale of some of their produce in accordance with the traditional way of life of these Tolai people. Tomeli is about fifty years old and I consider that in the normal course he would survive her and live for about another twenty-five years or so.

She has these permanent disabilities:

(a)      LEG: The right leg has been shortened by 1 in. as a result of the fracture of her femur and there is no adjustment available to her because, in common with her people she works, walks and lives barefoot. Of course, she limps and she carries a stick, which the doctor’s evidence confirms is the proper thing for her to do to give her support. It is from a sapling, longer than a walking stick such as would be worn by a European and she clenches it as one would hold a staff.

(b)      KNEE: While she can extend her knee fully she cannot flex it beyond a right angle.

(c)      ANKLE JOINT: This appears to have been involved in the fractures of the bones in the lower third of her leg and it is still in all directions, mobility being reduced by about fifty per centum.

(d)      ARTHRITIS: She maintains that she has no trouble from pain in her legs unless she climbs up or down slopes or hills. However, the doctor is of the opinion that she will get arthritis as the years go by, certainly in the knee, and possibly in the ankle and he considers, too, that an arthritic condition might develop in her hip joint because of the limping way she walks from the shortening of her leg. He would have expected some pain to have started now, some two years after her accident, and, in the absence of any cross-examination, evidence or even submission to the contrary, perhaps it is not unreasonable to conclude that notwithstanding that she gets no plain when at rest or walking on level ground, the pain she does get when ascending or descending is associated with the arthritis that will, however, not reach a degree of severity until later in her life.

(e)      COSMETIC-LEG: An oblique depression lies for six inches like a trough along the site of the cutting of her right leg and contains very obvious adherent scarring.

At the request of counsel I watched her walk on the cement floor of the Court: she uses her right leg for her first step and then she brings up her left foot, taking the weight of her body with her stick held in her right hand and then she brings the right leg forward and so on. There is an obvious limping of the right leg. Her pace is not fast but it is not slow, nor is her movement laboured.

I must now come to her situation in life and the locality of the home and gardens. Her home at Rabagi is situated on an artificial plateau, to which the summit of a ridge running down to the valley from the Vunadadir area has been artificially reduced at the spot.

At all material times her husband had, and still has two areas of land to which they must climb from their home to garden, and a third area which is down on level ground on the floor of the valley through which a stream runs, being either the River Warangoi in its upper reaches or a tributary.

Their way of life was much the same as the life of such people has been for generations with this exception, emphasised by counsel for the defendant, that her husband, even before the accident, was accustomed to assist her with some of the more laborious of the tasks which normally fall to a village wife. He had been for some years engaged in Mission work which took him away from home. However, about twelve months before the accident this engagement came to an end because of some illness he had and during these twelve months he and his wife had commenced to make gardens and to some extent had established gardens on the lands which I have mentioned, in which they grew the usual native produce of the locality for home consumption and sale of the surplus. He also had a small patch of cocoa but Iapidik made no contribution to the establishment or maintenance of this plot.

They have two young children, the elder being about four to five years of age. They also have two or three grown-up children who, presumably, have their own homes in or not far from Rabagi.

Iapidik was the housekeeper: she washed the family clothes, prepared and cooked the food, cleaned the house and its immediate surroundings and so on.

She worked helping her husband in his gardens and she also carried water from the stream, brought in from the bush the wood he had chopped and cut it into small pieces for the household fire. However, even before the accident, her husband, probably because of his association with the Mission, had sometimes carried in the wood himself, fetched the water and helped her with the laundry.

Since the accident she has not climbed up or down to the garden lands and has not attempted to work in a garden and I do not think that she would be expected to do so.

There is medical evidence which indicates that if she could get to her husband’s level land in the valley she would be able to do some work there. I do not think she should be expected to make such a journey, climbing down and up the slopes of the ridge. It is not suggested that the situation of their home or the gardens should be changed to advantage and from my knowledge of the locality of their community I readily assume that this is not a possible solution of her difficulty and I do not consider that they should be expected to leave their community.

She does continue to clean her house and its surrounds and to prepare and cook the food and I would think that the cleaning of the area around the home is about the limit of what one would expect her to do on such a leg as she has been left with.

Her husband now does the family laundry, brings in and chops the wood for the fire, collects, and brings in the food for the family from the gardens and carries the water up from the stream, including water with which Iapidik bathes herself at home. There is no sale of produce from the gardens.

There is a level walk to her Church and this she takes each Sunday. I think she has been left with serious limitation of her movements in the situation in which she lives and it would seem that her visits to Church are her only outings. I have seen and heard her and I have no doubt that before her accident she found a normal satisfaction in her gardening and her visits to Rabaul and probably also to her married children and possibly other relations and friends as well as in going to Church.

She is entitled to reasonable compensation in all her circumstances for the injury she suffered, for her pain and suffering in the past and future, for the serious damage to and interference with the function of her leg and for her loss of the full enjoyment of her life as she lived it as a native in and from her village before she was injured. Her hospital, medical and associated services were rendered to her free of cost and she lost no wages. There is, therefore, no claim for special damages.

There is, however, a claim for what has been called “economic loss”. As I have said it has been conceded by the defendant that she had an economic life of about fifteen years, that is to say that she would have worked in the gardens and taken her part in the transport and marketing of their surplus products for about this period. It has been further conceded and accepted that the annual loss is £45 and that for the period mentioned this should be capitalized at 5 per cent. Both counsel took the view that the resulting sum should be included in her award rather than her husband’s, although Mr Smith has in fairness stated that, even if I am of the opinion that it is properly part of the husband’s loss, his concession would still apply.

This “economic loss” occurs because, although Tomeli has been able to maintain some of his land under gardens, he has not on his own, been able either to maintain the gardens to the extent that they had already reached at the time of the accident or to bring all his land under gardens as was their natural intention when this plan was defeated by the accident to his wife.

The lands on which the gardens were maintained to produce the vegetables and fruit for home consumption and a surplus for sale are the lands of Tomeli’s vuntarai and I think that, as between himself and his wife, the gardens were, like the gardens worked by other married Tolai people in this community, the husband’s gardens. Although the wife took the usual part of a wife in selling the produce and actually received the money and may have kept it in her possession, in the absence of any evidence to the contrary, I would assume that just as the produce for home consumption was his, produced by him to satisfy his obligation to provide food for his family with the assistance of his wife fulfilling her responsibility to help him, so too was the money that was received from the sale of the garden surplus.

However, Iapidik is entitled to damages for the loss of her earning power resulting from the injury: Vide, e.g., Tuebner v. Humble[cxxxvii]¹ per Windeyer, J. Mr. Cruickshank cited this authority and strongly pressed upon me the judgment of Windeyer, J. I would observe, however, with respect, that while McTiernan, J. concurred in His Honour’s judgment, Dixon, C.J. and Owen, J. expressed neither concurrence with nor dissent from His Honour’s opinions. As the wife of a Tolai villager in the circumstances of her community, her earning power had no marketable value and it is indeed unlikely, as far as is now foreseeable, that it would have acquired such a value in the course of her normal working life. In other words, she was obliged to work as a helpmate to her husband. Nevertheless, I think it is reasonable to assume that she will lose some of the benefit of the family income that would have been obtained from the gardens had she not been injured and I propose to allow her a proportion of the capitalized value of what has been called “economic loss”. I bear in mind the two young children as well as the husband and I fix this proportion at one-third.

For her physical injuries, pain, damage and to interference with the function of her leg, loss of enjoyment of life and so on I allow the sum of £1,490: to this is to be added the sum of £160 as one-third of the “economic loss”, which I fix at £480. In all the circumstances and because counsel may have overlooked the not-so-significant period between the date of the accident and the date of the trial I think that it is fairer than the capitalized present value of this loss.

I was pressed by Mr. Cruickshank not to adopt any rule of thumb for the purpose of determining a deduction to represent the contingencies and he relied upon the condemnation of the High Court in Teubner v. Humble[cxxxviii]² of the South Australian habit of reducing the damages by one-third. This was quite an unnecessary precaution on Mr. Cruickshank’s part: there is no rule in, e.g., New South Wales and I was surprised to learn of its existence in South Australia. I think, having regard to the way of life of these people with all its comparative limitations, their isolation from many of the dangers of life in, for instance, an Australian State, their exposure to the dangers of travel on probably no more than fortnightly visits to Rabaul, the care for their health that is shown by the Missions and Administration, and so on, any reduction for contingencies should be small indeed. Furthermore, the partially balancing contingency of Tomeli predeceasing Iapidik before or after the two young children leave the home should not be overlooked. True it is that the services that he performs from which she receives benefit may well be performed for her by some of their children who would not leave her to fend for herself but this does not avoid the contingency as an element to be taken into consideration in assessing compensation. I have already in the figure I have fixed for damages for physical injuries, made allowance for the contingencies.

In The Director of Native Affairs v. Green[cxxxix]³ in which I delivered a judgment, as yet unreported, on the 4th May, 1964, I had the problem of awarding compensation to one of the people of this native community who had lost his wife in the same accident from which Iapidik received her injuries. I there had regard to the circumstances in life of the plaintiff and the value of money to him. In these actions I have had a similar problem insofar as it relates to circumstances and money values and I am fortified in my approach by the consideration of the question of the quantum of damages to be awarded by my brother Cameron Smith, A.J., in McCarthy v. Public Curator of Papua and New Guinea[cxl]⁴, 4th November, 1964, also, as yet, unreported.

I pronounce judgment for the Plaintiff Iapidik for the sum of £1,650 with costs upon the appropriate scale and I direct that judgment for this Plaintiff be entered accordingly.

TOMELI’S ACTION

Tomeli claims for the loss of the comfort, companionship and assistance of his wife in the home during the period she spent in hospital. Although he incurred no pecuniary expense in, e,g., replacing her with a housekeeper - such a person is unknown in his community - he is entitled to compensation under this head of damages arising from the tortious injury to this wife. Mr. Smith has argued that I should approach the assessment of the damages for this loss of consortium conservatively and in support of this submission he has cited Professor Fleming’s Law of Torts, Second edition, at p. 623; vide also Mayne & McGregor on Damages, Twelfth edition, at p. 790.

I can understand the inclination to restrict this claim because of its origin in the mediaeval and earlier position of a wife in relation to her husband, aptly described by Petruchio in the passage cited by Isaacs, J. (as he then was) in Wright v. Cedzich[cxli]⁵, which, with respect, I borrow to cite here:

“I will be master of what is mine own;

She is my goods, my chattels; she is my house,

My household stuff, my field, my barn,

My horse, my ox, my ass, my any thing;

And here she stands, touch her whoever dare;

I’ll bring mine action on the proudest he

That stops my way in Padua.”

However, if it is compensable why should not the assessment be approached in a way similar to that in which one is required to approach the assessment of damages in other claims arising from torts of the nature with which I am here concerned and allow full compensation bearing in mind, of course, that the determination of full compensation must be tempered by consideration of the limitations inherent in a monetary reparation.

I do not think that this conservative approach as urged upon me by Mr. Smith is supported by the High Court of Australia in Toohey v. Hollier[cxlii]⁶; vide also Birch v. Taubmans Lid.[cxliii]⁷; Bresatz and Another v. Przibilla and Another[cxliv]⁸; and Hare v. British Transport Commission[cxlv]⁹. However, in the circumstances of these people I do not think that a large award is called for and I have come to the conclusion that the appropriate sum to be allowed in respect of the claim for temporary loss of total consortium is £30.

I think that Tomeli must be allowed the balance of the “economic loss”, that is the sum of £320, to represent the loss to him of his wife’s services in his gardens and the sale of their produce, a loss arising from her injuries; vide the paragraph in Toohey v. Hollier[cxlvi]¹⁰ from which I cite the following passage, in which the underlining is mine:

“It is difficult to believe that if a husband proved a definite and substantial detriment to himself because of his wife’s injuries his action would fail because it fell short of an interruption of the entire comfort, society and fellowship. Again take the case of a tradesman’s wife accustomed to assist in the conduct of her husband’s business but disabled from doing so by a stranger’s wrongful act. It is impossible to resist the impression that in an action by the husband it would be regarded as a matter of course to award him damages in respect of consequential loss or expense incurred by him in the conduct of his business. In Best v. Samual Fox & Co. Ltd., Lord Reid said: `I do not think that it is open to doubt that an impairment of a wife’s capacity to render assistance to her husband was enough to found an action. Some analogy exists in the master’s action for his consequential loss against one who by negligence or other wrongful act does bodily harm to his servant or apprentice”.

I would also refer to Mayne & McGregor on Damages, Twelfth edition, at p. 790.

I consider, too, that Tomeli is entitled to compensation for the partial loss of Iapidik’s domestic services due to her reduced capacity to perform her household and kindred duties through the years from the date of her return from hospital. While it is true that he had commenced to relieve her, on occasions, of some of the heavier work of a village wife any increase in such relief would have been at the expense of his time and energy for his gardens, and, to an extent, would have been restrained also by the enduring nature of the traditional habits of his people.

Although it could hardly be said that the House of Lords gave its blessing to the strange doctrine introduced by the Court of Appeal with the aid of a strange word in Best v. Samual Fox & Co. Ltd.[cxlvii]¹¹ that consortium is one and “indiscerptible”, the present author of Mayne & McGregor (supra) at p. 794 seems to pay homage to this notion. However, I am relieved of any obligation so to do by what fell from their Honours in the judgment in Toohey v. Hollier[cxlviii]¹² particularly at p. 626 et seq. and I allow the sum of £150 under this head of damage, not overlooking the contingencies.

I pronounce judgment for the Plaintiff Tomeli for the sum of £500 with costs upon the appropriate scale and I direct that judgment for this Plaintiff be entered accordingly.

Judgment accordingly.

Solicitor for the Plaintiff in each case: W. A. Lalor, Public Solicitor.

Solicitor for the Defendants: F. N. Warner Shand, Rabaul.