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Crane v Moresby Bus Service Pty Ltd and Hetaru [1976] PNGLR 598 (14 October 1975)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 598 - Crane v Moresby Bus Service Pty Ltd and Henao Hetaru 

[1976] PNGLR 598

N8

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CRANE

V

MORESBY BUS SERVICE PTY LTD AND ANOTHER

Port Moresby

Frost CJ

13-14 October 1975

DAMAGES - Personal injuries - General damages - Particular awards - Leg injury - Fracture of neck of right fibula - Deep laceration to right foot with considerable soft tissue destruction and opening into joints of foot - Deep lacerations to outer leg - Haematoma under knee joint - Permanent disabilities - Disfiguring scars - Limitation of movement in toes and knee - Muscle hernia mid-leg - Further surgery on ankle probable - Limited sporting ability - Pain on exertion - Male journalist studying law aged 28 - Award of K6,500 general damages.

The plaintiff, an expatriate Australian journalist studying law and aged 28 years, claimed damages for personal injuries arising out of a motor vehicle accident on 23rd November, 1974. The principal injuries suffered were injuries to the right leg, including an undisplaced crack fracture of the neck of the right fibula, deep lacerations to the dorsum of the right foot with considerable soft tissue destruction and opening into the joints of the right foot, badly torn tendons in the foot with nerve damage, deep diagonal lacerations to the outer right leg and a haematoma under the right knee. The plaintiff was left with permanent disabilities including a hernia in mid leg, limitation of movement in toes and knee and the probability of further surgery to the ankle; his sporting activities were limited and excessive exertion continued to cause pain; he was also left with unsightly scars on the leg.

Held

(1)      As an expatriate Australian, the plaintiff was entitled to an assessment of damages in an amount which is fair and reasonable for the injuries suffered and the disabilities caused; such an assessment is to be proportionate to the situation of the plaintiff including his financial or economic situation, and made without regard to the economic or financial conditions in Papua New Guinea either generally or in relation to any category of its citizens.

Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz, [1975] P.N.G.L.R. 262 applied.

(2)      Accordingly, a proper award for general damages for the injuries suffered and the disabilities caused was K6,500.00.

Trial

This was an action in which the plaintiff claimed damages for personal injuries suffered as the result of a motor vehicle accident on the 23rd November, 1974.

Counsel

JA Griffin for the plaintiff

RHB Wood for the defendant

Cur. adv. vult.

14 October 1975

FROST CJ: This is a claim for damages for personal injuries suffered on 23rd November, 1974, by the plaintiff, a single man of 28 years of age, when his Honda motor cycle was in collision with a taxi driven by the second-named defendant.

It is admitted that that defendant was driving in the course of his employment by the first-named defendant.

The collision occurred on a fine night between 7.30 p.m. and 8.00 p.m., on Waigani Drive in the National Capital District, in the vicinity of the Port Moresby City Council Chambers. The plaintiff’s account is that he was driving in the direction of Waigani in a line of traffic, on the correct side of the road and nearer the left edge of the bitumen than the centre of the road, at about 25 to 30 miles an hour. He says that the second defendant, driving a taxi at a fast speed which he estimated as between 55 and 60 miles an hour came from the opposite direction and swung the taxi onto its incorrect side of the road, so giving the plaintiff no opportunity to avoid the collision which occurred on the plaintiff’s side of the road. The taxi finished up off the bitumen surface on the side of the road.

The evidence of the plaintiff is supported by the evidence of Constable Walep who visited the scene soon after and noticed some glass and dried gravel on the plaintiff’s correct side of the road. The constable spoke to the second defendant who was at the scene and took him back to the place where he saw this glass from the taxi. He pointed out these signs to the defendant and the defendant acknowledged that that was the place where the accident occurred.

The plaintiff’s account is also substantially supported by the evidence of John Vaki who was a passenger in the front seat of a vehicle following the cycle and who thus had an unobstructed and excellent opportunity to view the accident. He says that he saw the oncoming taxi swerve across the road and come into collision with the cycle which was plainly on its correct side of the road. There was some criticism of Vaki’s evidence that he did descend to some reconstruction in mentioning that the bonnet of the taxi was not properly closed before the collision, which could have accounted for the bonnet being flung up on impact.

The second defendant’s version is that the plaintiff was attempting to overtake and the collision occurred on the defendant’s correct side of the road. It is true that this was a version maintained always by the second defendant consistently from the time when he was first questioned by the Constable; however, having heard him and observed him in the witness box, I am not able to accept his evidence.

The plaintiff does not have to give any reason for the defendant’s alleged erratic driving, but I think a sufficient reason emerges that the second defendant was driving too fast and did not have proper control of the taxi.

I am satisfied that the plaintiff was a witness of truth upon whose evidence I can rely, and on the whole of the evidence I am satisfied on the balance of probabilities that the collision did occur as the plaintiff described and that the plaintiff’s injuries were suffered as a result of the negligence of the second defendant, in that he was driving too fast and on his incorrect side of the road.

Mr. Wood, on behalf of the defendants, submitted there was some contributory negligence. The burden of proof of course is upon the defendants. I am not satisfied that there was any reasonable opportunity for the plaintiff to avoid the collision, bearing in mind particularly the agony of the moment with a taxi bearing down upon him at, I am satisfied, a fast speed. I am thus not satisfied that there was any contributory negligence.

Accordingly, the plaintiff is entitled to judgment against both defendants and the issue then remains as to the award of damages he is to receive.

He was fortunate in that his injuries were confined to the right leg and without major bone injuries. He was taken by ambulance to the Port Moresby Hospital where he was operated on at about 11.00 p.m. that night. A heavy plaster was fitted to the right lower leg and he was kept in hospital for about 10 days. After being discharged from hospital he journeyed to Melbourne, where he was seen by an orthopaedic surgeon, Dr. Swaney, in December, and then went to Armidale where his parents live. There he had physiotherapy treatment on about nine occasions and eventually the plaster was removed towards the end of January. During this period he was getting about on crutches. He was unable to dispense with the crutches immediately and continued to use them for two or three weeks thereafter. Apparently in March he returned to Port Moresby and resumed his normal occupations.

The injuries he suffered are as described in certain medical reports. It is a difficulty that plaintiffs and defendants meet in actions in this Court, that it is not always possible to secure the attendance of the medical practitioners, but I am fortunate in this case in that there are clear reports which bring out the nature of the injuries and also in that there is not any great area of dispute between the doctors. The only bone injury was an undisplaced crack fracture of the neck of the right fibula which I take to be that portion of the fibula towards the knee.

The main injury was a deep wound to the dorsum of the right foot with considerable soft tissue destruction and opening into the joints of the foot. There was injury to four tendons. The right extensor hallucis longus tendon was severed at the front of the ankle and this was the only tendon which proved to be repairable. The two tendons in the foot, the extensor digitorum, longus and brevis, were both badly torn and as I said could not be repaired. The main trunk of the dorsal digital nerves was also destroyed and could not be repaired.

The next type of injury consisted of several deep diagonal lacerations to the outer aspect of the right leg. Finally, there was some internal damage to the plaintiff’s right knee joint involving apparently some gathering of blood which may have contributed to a haematoma which gathered above the plaintiff’s right knee and worried him during the period he had the plaster on his leg and for some time thereafter.

The plaintiff is fortunate that he has made a good recovery from those injuries.

Turning to the basis upon which an award for damages is to be assessed, I note first of all that special damages are agreed at K710.20 and whilst there is no admission as to the cost of repair of the plaintiff’s motor cycle I accept the evidence that the cost of repair was K148.45, making in all K858.65.

No claim is made for future economic loss. The plaintiff is entitled to an award of general damages to cover the items of pain and suffering, loss of amenities and the disfiguring scars. For the purpose of this case, in my opinion, it is sufficient to state the effect of Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[dclxvi]¹ in the following terms. An Australian expatriate is entitled in an assessment of damages to an amount which is fair and reasonable for the injuries received and the disabilities caused. It is to be proportionate to the situation of the plaintiff including his financial or economic situation, and the assessment is to be made without regard to the economic or financial conditions in Papua New Guinea either generally or in relation to any category of its citizens.

The plaintiff did suffer pain at the scene of the accident and in hospital. He suffered pain whilst the plaster was on his leg and has continued to suffer irregular intermittent pain, for which he needs to take Codral tablets. A packet lasts him about six weeks.

It is necessary now to look at his future disabilities. He has a loss of dorsi-flexion or inability to raise completely the toes of his right foot. The only way in which this disability seems to affect him is when he walks on sand or a rough surface when he is unable to walk for any length of time in bare feet. There is no problem walking in shoes. Secondly, there is limitation of flexion of the right knee which means that he is unable to squat fully.

Thirdly, there is a muscle hernia in about the middle of his right leg. Here there is difference of opinion between the doctors. Professor Clezy, who saw the plaintiff for the purpose of this hearing, says unworthy of further treatment. Dr. Castellino, however, takes a different view saying, ‘this may need surgery later on to close the muscle defect’. The view I would take on this is that there is some possibility he may need a future operation. But there is no evidence of the cost or likely duration of incapacity, if any.

Fourthly, there is the injury to the right ankle. Professor Clezy takes the view that there is no evidence that the ankle joint was damaged. He regarded the symptoms at this level to be due to tethering of nerves and tendons in the scars. The symptoms are not likely to get worse and may get better. However, I note that the deep wound in the foot opened up into the joints of the plaintiff’s foot. I consider I should take into account that again the plaintiff is under some risk that he will require 10 or 15 years hence future surgery at the ankle joint. Again the reports afford no assistance as to the nature and cost of the operation and the period of disablement.

Fifthly, there is the right knee joint where Professor Clezy notes there is some fibrosis, and it is significant that he considers that the plaintiff will continue to have some pain in the right knee, he says of a mild nature.

Now what is the effect then of these disabilities upon the plaintiff? His financial situation is that he, having graduated in law at the University of Papua New Guinea, is at present completing his training to enable him to be admitted as a barrister and solicitor at the end of this year. He proposes to take up employment in a firm in the National Capital District. He has been offered K8,000.00 to K10,000.00 a year which, as the phrase is, constituted ‘government rates’ also, and indeed this was not contested. He proposes to stay for a period of about two years, and then he has in mind to go to London for further academic study. Finally he will return to Australia where no doubt he will enter the legal profession.

He has his occupation as a journalist to fall back on but he left that to go into the law and it seems that he is not likely to return to journalism.

The plaintiff seems to me to be a man who has been affected mentally by his injuries. Looking at the item of pain and suffering first, he has still not got over what he found was a terrifying experience of the taxi coming at him at a fast speed, and it is not unreasonable he should continue to have fear in traffic. He has not been influenced to give up his motor cycle, but perhaps there are financial reasons for this.

He is determined not to be put down by his injuries, and indeed presses himself to the point where he cannot exercise any further because of pain to his right leg. He obviously is an active young man who gets pleasure out of running and strenuous sport. The effect on him of these injuries is that he can now run two miles before his foot hurts him. He does get pain in the foot after exercise. There is no evidence as to the distance he could run before the accident. He continues to play squash but instead of the usual period of an hour and a half it is reduced to half the time before the pain in the leg causes him to give it up. He has pain on exertion in the near side of the foot, the ankle near the hernia, and the knee joint. There is the pain he gets on prolonged standing which causes him to sit down. He has to be careful when he takes a hot bath because of some loss of sensation in the foot.

All these matters affect his loss of amenities or enjoyment of life. I accept Mr. Griffin’s submission that the plaintiff is really in a position now where he has a weak knee and foot which it appears may well be permanent; certainly the knee damage is on medical evidence likely to be permanent and as I have said there is some risk that further treatment or surgery may be needed in the future.

He could manage his life in the way of reducing his exercise but that does not suit him and I think he gets some pleasure on straining himself a little, and it may well be this continued exercise has caused an amelioration in his condition.

So far as pain and suffering is concerned I have to remember, as juries are told, that there is no pain easier to bear than someone else’s and, secondly, I must also take into account the subjective aspects and effects of pain on the mental and nervous state of the plaintiff. See Luntz, The Assessment of Damages, pp. 96-97.

The other matters I have to take into account are these unsightly scars across the ankle and lower leg, which although when Mr. Crane wears slacks or walk socks are obscured, affect him, an active man, who no doubt likes to go to the beach and engage in sport. Whatever one’s sex, unsightly scars affect one.

I have been very much assisted by counsels’ submissions including the range of damages. Bearing in mind the basis on which the award is to be assessed the figure I have come to for general damages is K6,500.00, to which is to be added the sum of K858.65. The plaintiff is entitled to an award of K7,358.65. There will be judgment for this sum with costs to be taxed, by consent, stay of 21 days.

Judgment for plaintiff in sum of K7,358.65.

Solicitors for the plaintiff: Craig Kirke & Wright.

Solicitors for the defendants: McCubbery Train Love & Thomas.

[dclxvi] [1975] P.N.G.L.R. 262.