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Fowler v Fae and New Guinea Industries Pty Ltd [1977] PNGLR 506 (26 August 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 506 - Catherine Fowler v Movo Fae and New Guinea Industries Pty. Ltd.

[1977] PNGLR 506

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CATHERINE FOWLER

V

MOVO FAE

AND

NEW GUINEA INDUSTRIES PTY. LTD.

Waigani

Prentice DCJ

14-17 June 1977

26 August 1977

DAMAGES - Personal injuries - Particular awards of general damages - Arm injury - Fractured humerus - Subsequent operation to take up slack ligament - Loss of function of 20% - Unsightly scar - Also head and facial injuries - Facial joint dysfunction - Severe anxiety state unlikely to continue after termination of litigation - Loss of aspirations of nursing as avenue of employment - Female aged 14 (20 at trial and married) - Award of K15,000 general damages (including K5,000 for loss of aspiration of nursing).

The plaintiff a schoolgirl aged 14 (married and 20 at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injuries suffered were a fracture of the upper right arm and a mild head injury with cerebral concussion and bruising to face and nose. Some four years after the accident a condition known as facial joint dysfunction syndrome was diagnosed and treated with an acrylic splint with a good recovery and only a slight possibility of future recurrence. Some three years after the accident, following continuing complaints of recurring pain in the right shoulder a Putti-Platt operation was performed to take up slack in the shoulder ligament; the plaintiff was left with about a 20% loss of function of the arm with some continuing pain precluding continuation of interests in jazz ballet and squash and restricting swimming and certain household tasks especially lifting, and carrying, and an unsightly scar on the front upper arm. In addition the plaintiff suffered an anxiety state or depressive illness of a serious order and necessitating at one stage psychiatric treatment, but with the cessation of litigation unlikely to continue to have a serious state of depression or emotional imbalance. The Court also found that the arm disability precluded nursing as an avenue of employment and compensation should be made for the inability to test her aspirations in that direction but that on the evidence there was no distinct measurable loss of earning capacity having regard to the circumstances of her life.

Held

General damages should be assessed at K15,000 including K5,000 for loss of nursing as a probable avenue of employment.

Trial

This was an action in which the plaintiff claimed damages for personal injuries suffered as a result of a motor vehicle accident in February 1971.

Counsel

J. A. Griffin, for the plaintiff.

D. Letcher, for the defendant.

Cur. adv. vult.

26 August 1977

PRENTICE DCJ: This is an action for damages for personal injuries sustained in a motor vehicle accident on 3rd February, 1971. The plaintiff was a passenger in one of two vehicles involved. Liability is admitted. The only issues relate to quantum of damages.

The plaintiff was at the time of the accident a schoolgirl of almost 14, having been born 28th March, 1957. She is now a married woman aged 20. At first assessment and treatment, it appeared that she had come off comparatively lightly with a blow to the head and a fracture of the upper right arm. However, with the passage of time the picture darkened. It is submitted that the fracture of the arm had also produced damage to the shoulder, from which recurrent dislocation of a painful nature resulted. An operation was considered necessary to remedy this condition, and following same, the plaintiff is said to be left with a limitation of movement that effectively precludes her taking up her desired career of nursing. A claim as to loss of earning capacity in this regard is raised. Some years afterwards a problem also developed with her jaw which necessitated the wearing of an acrylic splint; this is also attributed to the blow on the head taken in the collision. Finally, as a combination it is said, of injuries sustained in the accident, the effect on her of the previous nature of injuries to others of her family in the same, and the strains resulting from interference to schooling, she developed an emotional state (described by Dr. Millar as “depersonalization”) which called for psychiatric attention. Support in the form of medication and counselling will, it is said, continue to be necessary. The plaintiff, of course, requires to establish the various heads of damage on a balance of probabilities only.

THE JAW

Apparently the plaintiff suffered bruising to her face and nose and what has been described as a mild head injury with cerebral concussion, in the accident. There is no suggestion that any injury to her jaw was observed at the time. But she says she could not eat properly — her teeth felt loose. Some four years afterwards (February 1975) she began to complain of pain in the right jaw, which was interfering with her eating. I am satisfied that the trouble experienced from February 1975 in regard to jaw and teeth is directly attributable to the accident. The plaintiff was referred by Dr. Millar to a Dr. Klineberg in Sydney in February 1975. He discovered the plaintiff was finding limitation in jaw opening, difficulty in chewing, a click on the right tempero mandibular joint on chewing and forced jaw opening, and facial pain in front of the right ear. The pain was sharp and distressing. He was quickly able to diagnose a facial joint dysfunction syndrome which could readily be treated; and was able to prescribe the wearing of an acrylic appliance which fitted over the back teeth and corrected the dysfunction. Apparently she was required to wear this appliance for some three months with occasional adjustments. Dr. Millar describes her as having made a good recovery but warns that such a condition tends to recur — being a form of arthritis. To Dr. Clezy who examined her during the hearing, she stated that the jaw was “now causing very little trouble”. His comment was that her dental disability is causing her no concern. It appears that the plaintiff put up with a good deal of pain and inconvenience at the beginning of 1975 when the jaw slowly began to get worse. But following the treatment by Dr. Klineberg, this aspect has not loomed large. It can still produce a feeling of hurt in the mornings — but not when the appliance is worn at night time — which she prefers to do. My conclusion is that the dental problem is not causing her trouble of any significance now and is unlikely to do so in the future.

ORTHOPAEDIC INJURIES

The only injury of an orthopaedic nature that was discovered during the plaintiff’s treatment in hospital in February 1971 was a closed fracture of the right humerus. This became associated with paresis of the radial nerve — which fortunately responded completely to physiotherapy. The humerus was treated conservatively and apparently healed quite satisfactorily. When examined by an orthopaedic specialist, Dr. Fergus Wilson, in Brisbane, in August 1972, the plaintiff spoke of some weakness and lack of endurance in the use of the arm — and of experiencing a “catch”. She felt the arm was getting stronger. The doctor found free range of movement of elbow, forearm and shoulder. X-rays confirmed the healing. He expected that a minor degree of deformity of the upper arm would remain — but the final disability could not exceed 5% efficient use. He expected there would have been a certain degree of pain and discomfort in the initial period. A neuro-surgeon, Dr. Leigh Atkinson, who examined her at the same period, could find no neurological abnormalities, but noted a suggestion of a serious anxiety depression state.

On a number of occasions between May and October 1973, the plaintiff complained to Dr. Millar of pain “over the right radial nerve”. A specialist in May 1973 could find nothing on examination. On 22nd September, 1973, she reiterated her complaint — stating pain came on acutely on certain movements, which pain was relieved by her mother’s manipulation of the joint. Apparently Dr. Millar formed the opinion that dislocation of the shoulder joint was recurring — a theory which a specialist agreed to as a possibility. Anti-inflammatory drugs were prescribed to decrease muscle spasm. It is curious that no doctor apparently ever observed a dislocation of the shoulder such as the girl described. Nevertheless, surgery was decided on, and a Putti-Platt operation performed to take up slack in the shoulder ligament. Dr. Wilson saw the plaintiff on 20th November, when she spoke of “various clickings in the shoulder” that had “been associated with some discomfort”. He could not speak as to the operation. Dr. Millar said she was present at the operation and found the laxity of the ligament very apparent. Dr. Clezy, the Senior Surgeon in Port Moresby, on examination in June 1977, found himself unable to account for pain in the shoulder and arm. He stated that there was no suggestion she suffered a dislocation of the shoulder in the accident. He appears to regard a diagnosis of “dislocation” without a clinical observation of actual dislocation, and a subsequent operation, as most unusual. “Dislocation is dislocation and is a firm clinical diagnosis”, he says. Nobody had told him that any doctor had seen the joint dislocated, and he could see no reason to believe dislocation would come in 1973 as a result of the accident in February 1971. Whatever the source, a recurrent dislocation such as was the motivation of the operative treatment accorded, or some aggravation of soft tissue injury; undoubtedly Miss Fowler suffered pain, and is left with a disability in her arm, which Dr Clezy assesses at 20% loss of function. Dr Clezy concedes that this results from the accident in some way; and I so find. In addition to its possible economic aspects, to which I shall advert presently, this has affected her enjoyment of life to a not inconsiderable degree. The plaintiff lives in, and contemplates living in, Lae for some years — a town without remarkable sporting facilities. She finds herself unable to continue her interest in jazz ballet and squash; and her swimming is restricted by the limited arm movement. She experiences difficulty in, and requires the help of her husband in certain household tasks (those involving lifting, carrying, reaching up, application of muscle power). She experiences on occasion still, some pain in the shoulder. Dr. Millar views this as a condition of post-traumatic arthritis related to cold weather, for which she has prescribed an apparently mild form of aspirin compound which deals with inflammatory conditions. Dr. Fergus Wilson in his examination in 1972 and 1973 does not appear to have detected any onset of arthritis, and Dr. Clezy this year was unable to see any indication of it. The shoulder joint was not tender except on extremes of movement. Traumatic arthritis in a shoulder joint is a very unusual condition, Dr. Clezy explained; it usually occurs in weight bearing joints. He seemed to be of the view that such pain as was occurring proceeded from minor soft tissue injury. Dr. Millar takes a more pessimistic view on this, as on other aspects of the plaintiff’s condition. Dr. Millar has had long and detailed opportunities for observing the plaintiff and appears to have devoted an extraordinary energy to her care. But with great respect to her, and after viewing the plaintiff in the box, I find myself drawn to Dr. Clezy’s assessment of her as a mature young woman adjusting to her disability, and to sharing his doubt as to the severity of pain which has been experienced in this regard. Dr. Millar herself stated that she had always felt that Catherine tended over the years to dramatise her symptoms. I note she has worked in the one job since November 1974 without significant loss of time; and has undertaken considerable overtime work. I form the view that the pain issuing from the shoulder region is unlikely to cause significant trouble in the future.

SCAR

At the present time the plaintiff is left with an unsightly scar on the front of the right upper arm and a very slight disfigurement of the arm itself. The scar appears to have caused her considerable distress. When possible she makes use of frocks with frills on the shoulders to cover it. Undoubtedly such a scar must have caused embarrassment and interfered with her enjoyment of life. It seems that no-one had, until the hearing, informed her that it can, however, readily be removed by a comparatively simple operation involving a general anaesthetic — the patient going in and out of hospital the same day. Whilst it may have been advisable up to date, to have avoided further surgery in the process of attending to the plaintiff’s anxiety state; I consider it is reasonable to expect that she should, in her own interest, undergo such an operation now. She should, I think, be compensated in this judgment for the stress she has been caused to date by the scar and in addition receive the cost of the operation and attendance therefor. Dr. Clezy notes the approximate cost of the operation at K25. In addition to the aspect of general damages on this head, I think a sum of K200 should be included to cover the cost of expenses involved in undergoing this operation.

ANXIETY STATE

There is no evidence before me which would justify a finding that Miss Fowler suffered organic brain damage in the accident. But undoubtedly she was reduced to an anxiety state or depressive illness of a serious order. The accident and its sequelae produced clearly a most frightening and disturbing result. Her academic career slumped, she suffered loss of concentration, her family relationships deteriorated. She suffered nightmares and terrors, on occasions savaged herself and cut her wrists. The disturbances came at a time when she was most vulnerable in regard to personality development. Her condition became so much a matter for concern that she was admitted to the Northside Psychiatric Clinic in Sydney under Dr. McMurdo’s care for some six weeks therpay in September 1974. The doctor’s prognosis at that time was guarded. He saw her again in February 1975, when she was much improved and seemed to have matured to some extent. There was then no evidence of depression. She was able to express her feelings much more openly and realistically and was working. She has not since had recourse to psychiatric advice — but Dr. Millar is prescribing valium for her, generally, and specifically during the stress occasioned by this trial. Dr Millar’s view is that she will continue to need counselling and support and some medication. She formed the view that the plaintiff had become something of a hypochondriac. While noting her demeanor and use of language in the witness box, I was at first disposed towards a similar conclusion. She made ready reference to medical and psychological phrases of a semi-technical kind. But this is to be expected perhaps of one who had undergone extensive examinations, questionings, counsellings and psychiatric therapy in a clinic for six weeks. My view of her changed as she proceeded with her evidence. The plain fact is that she has been holding down the one job successfully for some years. She seems suited to it. Her marriage is working out and she is attaining the security that for a while seemed to have vanished from the world of a girl who had hitherto received an abundance of family support. Dr. Clezy summed her up in relation to his testing of depression, and after conversing with her for over three-quarters of an hour, as follows:

“Having read psychiatrists’ reports I was prepared for someone very much less composed than Mrs. Dhu. It seemed to me she was a mature young woman adjusting to her disability. I would have thought she was no different from the average member of the population.”

In his report he stated “Mrs. Dhu seems to have a matter of fact attitude to her problems and I would suppose that her psychiatric prognosis is good”. In cross-examination he agreed that Dr. Millar might be in a better position to give views as to emotional and psychiatric matters. Dr. Millar considers that the plaintiff has now acquired a life-long need for “medical reassurance”. She would expect depressive moods to continue — although noting improvement since her marriage. “She will frequently require minor tranquillisers”, Dr. Millar said. “If subject to moderate stress there is a strong possibility she will require anti-depressant drug therapy. ... The major treatment will be counselling; general practitioner counselling may possibly not be adequate and special psychiatric attention may be sought”. It is clear that Dr. Millar has been “standing very close” to this patient — I am sure it is very much to the doctor’s credit. But I find myself inclined to the view that perhaps she has been a little over-protective, over-pessimistic in her prognosis for the future. Doing the best I can with all the evidence before me, I consider that with the cessation of litigation, the plaintiff will experience a brighter future, and will be unlikely to continue to have a serious state of depression or emotional imbalance. To a certain extent, factors other than the accident and its sequelae, appear to have contributed to Mrs. Dhu’s anxiety state — a succession of illnesses, appendicitis, dengue fever, bronchitis, hepatitis (the latter particularly perhaps), the state of her physical and emotional development. Nevertheless, I view the major contributing cause to her psychiatric upset to have been the circumstances and results of the accident, the injuries she sustained then, and the effect of those injuries on her life generally. I consider she ought to be fully compensated for her difficulties in this regard up to date, but that her future as far as I can assess it on the probabilities calls for only minor compensation on this head of damage.

LOSS OF EARNING CAPACITY

A claim has been erected to the effect that the accident has deprived the plaintiff from undertaking her intended profession — that of nursing, and that this fact should issue in an award of damages representing an anticipated loss of earning capacity which should be calculated by making comparisons between what the plaintiff has been earning as a shop assistant in a pharmacy, with what she would have been earning as a trainee nurse and later as a qualified nurse. Prior to the accident Miss Fowler appeared to be doing well at school. After the accident, because of her injuries, her continuing disability, her loss of concentration, loss of schooling, anxiety state, and succession of illnesses — her performance fell away. It is of course notoriously difficult to predict scholastic staying powers among teenage girls. Some continue until school-leaving to be motivated towards studying. Others lose interest and look to their social and matrimonial future. Dr. Millar has known the family for years and was able to state that the plaintiff had planned before the accident to go to university, but that following the decline in her scholastic performance after the accident she turned her ambition towards nursing. It has been established that she applied to the Queensland Nursing Board for admission to training. She was told that her physical disability (loss of movement and power in the right arm) would effectively rule her out as a candidate. I am satisfied that the plaintiff really entertained the ambition from 1971 to become a nurse. Whether she would have, without the arm disability, persevered to qualification and entered practice, and if so for how long, remain, I think matters for speculation. Such an ambition has been shattered by the residual disabilities she experiences in her arm. She is entitled to be compensated for the loss of her ambition, but is it to be measured as a loss of earning capacity? Mr. Letcher contends that there should be an award of general damages as for loss of an avenue of employment; but that there are too many variables to allow reliance on schedules of figures. It should, he says, be borne in mind that there is here a loss of opportunity which does not equate with a denial of continuance in an established occupation. He contends that were the plaintiff to move to Australia there could well be positions open to her that would pay better than Morobe Pharmacy in Lae where she works. And it is possible that such jobs in Australia would pay as well as some nursing positions that might be open to her as a married woman with perhaps by then a family. There would in normal times be more opportunities in Australia. But she and her husband desire to stay indefinitely in Papua New Guinea, it seems. And it is notorious that qualified expatriates are finding increasing difficulty in obtaining positions in professions such as teaching and nursing even at national rates or as “temporaries”. The localization policy is against them.

Mr. Griffin has presented figures based on the Queensland Nursing award figures (Exhibit F) which would establish that if the plaintiff on leaving school, had commenced as a trainee nurse, she would by now have had net earnings from that source of K10,965 as against the K7,465 she has in fact earned net from a preliminary job in a shoe shop followed by her work at the Pharmacy. She is entitled to this, he says, as a commencing figure illustrative of loss of earning capacity. He then compares the first year figure for a qualified nursing sister in Australia — net $127 p.w. with the plaintiff’s net earnings which he expresses in dollars at $90 p.w. and arrives at a round figure of $40 p.w. loss. He submits that a 40-45 years working life as a nurse should then be predicated alongside the 6% tables usually relied on (Vol. 40 A.L.J.). The 40 years multiplier for $1 is $808; and he submits that for 45 years it would be approximately $820. The resulting sum he concedes would require to be adjusted to bring in contingencies in regard to childbirth, illness, job opportunities, early death, so as to arrive at a figure on this head of economic loss.

Unfortunately, I do not think it open to me to approach the assessment in this way. In 1973 when the plaintiff began keeping company with her present husband she was still at school. She became engaged to him in August 1974 and married in 1976. Both at these times and now, she seems to be committed to a close association with her family which is settled in Lae. They appear a close-knit group on the account of that aspect given by Dr. Millar. Her husband appears committed to Papua New Guinean residence and work opportunity (he earns K110 p.w. net). The plaintiff’s school performance faded away in regard particularly to mathematics. It is possible that such might have occurred without the accident when one considers young Miss Fowler’s quick engagement after leaving school. The low standard in mathematics would appear to have been a factor in her being ruled unacceptable for nursing training. It is shown that nursing training would not in any event have been open to her as an expatriate in Papua New Guinea. There would in all likelihood have been few, if any, nursing positions open to her on qualification in Papua New Guinea, where it would seem she would have been committed to live. And in view of continuing unemployment troubles in Australia — no assurance that such a job would have been open to her there. There are indeed so many uncertainties and variables in the picture that the question of the plaintiff’s economic future in 1971 remains, I consider, one of sheer speculation. I am unable to reach an assurance on the basis of probability that the plaintiff (a) would have been able to proceed to qualification; (b) would have been able to obtain employment at Australian nursing rates or at indigenous rates in Papua New Guinea; (c) would have been able, because of her family position and attachment to her present husband, to take nursing work in Australia. Nor is it possible, assuming that such work were available to her in Australia, to establish to a degree of probability, the number of years she might have been able to engage in the nursing profession and with what continuity.

I have reluctantly come to the conclusion that the most I can find is that the arm disability has put paid to an avenue of employment that conceivably might otherwise have become available to her, and that she should be compensated in money terms as best I can assess them, for the inability to test her aspirations. I do not think the evidence to be such as leads me to believe that it is probable she has suffered a distinctly measurable loss of earning capacity having regard to the circumstances of her life.

Doing the best I can to calculate a fair compensation for this head of damage, I consider I should allow for it an amount of K5,000.

I endeavour to make allowance for any element of overlapping that may be involved in making the last mentioned assessment, and in assessing separately the disturbance to her life in the shape of pain, distress, suffering, mental anguish and loss of enjoyment of life past and continuing, which stem from the jaw injury, the scar and disfigurement, the disability to arm and shoulder and the anxiety state and depression. I assess an amount of K10,000 to cover these heads.

It was agreed in court that the verdict should include an amount of K5,532.85 for out-of-pocket expenses incurred; and I am satisfied that a further sum of K463.20 out-of-pocket expenses was fairly attributable to necessary attendances connected with treatment of the plaintiff. I include in the verdict the total of these sums namely K5,996.05. An amount of K225 for the scar operation should also be included. There will be a verdict for the plaintiff in the sum of K21,221.05.

Exhibits C and 2 have been released to the custody of the plaintiff’s and defendant’s solicitors respectively for return to Morobe Pharmacy and the Education Department on the understanding that they shall be again made available in the event of any appeal.

Judgment accordingly.

Solicitors for the plaintiff: L. K. Young & Associates.

Solicitors for the defendants: Gadens.