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Armiger v The State [1978] PNGLR 516 (27 October 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 516 - Edward James Armiger v The State 

[1978] PNGLR 516

N171

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ARMIGER

V

THE GOVERNMENT OF PAPUA NEW GUINEA

Waigani

Andrew J

9-10 October 1978

27 October 1978

DAMAGES - Personal injuries - Particular awards of general damages - Whiplash injury - Continuing discomfort - Loss of golf as recreation - Male business manager aged 43 (47 at trial) - Award of K8,500 general damages.

The plaintiff, a business manager for the Mount Hagen Local Council, aged 43 (47 at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury was a whiplash injury and as well the plaintiff suffered severe swelling of the right shoulder and contusions on the right arm. The neck injury was treated conservatively with exercise, massage and analgesics and at the time of trial the plaintiff was limited in his ability to stand or sit for prolonged periods, to sleep on his back or to play golf.

Held

General damages should be assessed at K8,500.

Trial

This was an action in which the plaintiff claimed damages for personal injuries as a result of a motor vehicle accident which occurred in October 1974.

Counsel

J A. Griffin, for the plaintiff.

J A. Ross, for the defendant.

Cur. adv. vult.

27 October 1978

ANDREW J: Edward James Armiger, the plaintiff in this action, seeks to recover damages from the Government of Papua New Guinea for personal injuries sustained in a motor vehicle accident at Mount Hagen on 19th October, 1974. [His Honour then dealt with the question of liability concluding that the defendant was guilty of negligence.]

The plaintiff was aged 43 at the date of the accident and is now aged 47. He is employed by the Mount Hagen Local Government Council as a business manager. Prior to the accident his general state of health was good and he led an active life and played golf consistently. I have already mentioned that at the time of the collision he was thrown to the passenger’s side of his car and knocked unconscious. Upon regaining consciousness he was able to walk and went to get help. He suffered a severe swelling of the right shoulder and contusions on the right arm. He had a cut on the middle top forehead and glass in the right side of the neck. His gums were bleeding and he experienced difficulty in swallowing. During the night following the accident he felt pain in the neck region and he attended the Mount Hagen Hospital the next morning. He received outpatient treatment and was given analgesics. The neck remained very sore and he continued to experience trouble swallowing and speaking. He was advised to re-attend the hospital if his condition did not improve. Several days later he did re-attend as he had not improved but was given no specific treatment. He learnt that there was no orthopaedic specialist in the Highlands and he then went to Brisbane where he was examined by Dr. Fergus Wilson an orthopaedic surgeon. This was on 28th October, 1974. X-rays were taken and he was advised to wait for a week to allow the immediate effects to wear off and for the body to recover. He was advised to do gentle massage and exercise. This was done hourly for about 10 minutes at a time. He returned to Mount Hagen and after a few days returned to work. During this period he was on “sick” pay and no claim is made for loss of wages or “sick” pay entitlements. Nor is a claim made for future economic loss.

The plaintiff’s neck remained sore and he could not sit in one position for a long time. He suffered severe headaches for a period of from two to three months and within two months the injuries to the arm and shoulder had cleared up as had the superficial injuries. He is now unable to remain seated in one position for any period of time and if startled or when turning the neck suddenly he suffers severe pain down the back. He continues to massage his neck but less frequently than before. He experiences difficulty and pain when required to remain still such as on a plane flight or on car journeys of any length. He is unable to sleep on his back. His present occupation is 50% sedentary. He attempted to take up the game of golf once more in 1977 but this led to further pain at the time of playing and in the following morning and he thus decided that he could not play again. He has no other equivalent recreational substitute.

The above is a general account, largely chronological, of matter relevant to the claim, particular aspects of which I now examine.

The injuries he suffered are as described in two medical reports of Mr. Wilson of 23rd January, 1975 and 22nd December, 1976 and by evidence from Mr. Wilson taken on commission in Brisbane on 28th July, 1978.

The main injury was a whiplash injury to the cervical spine causing damage in particular to the region C5-6. The other injuries namely, loss of consciousness, the injuries to the right shoulder and arm, the lacerations to the scalp, neck and gums have now healed although minor scars remain on the neck.

Mr. Wilson’s medical report of 23rd January, 1975 demonstrated that the plaintiff had suffered a fairly severe whiplash injury. Thus, “he had sustained severe body bruising and contusions of his right arm and a neck injury at that time. The neck was stiff and painful and he had difficulty in swallowing. The pain was located in the left side of the neck and he had aching pain up the left side of the occiput. There was pain on extension of the neck. There was some reference of pain in the region of the right elbow and I considered this was due to some nerve root irritation arising in the cervical spine. Thus, the situation was one of a whiplash injury to the cervical spine causing damage in particular to the region of C5-6. The fact that he had trouble in the anterior muscles and had difficulty in swallowing would indicate that there was a fairly severe injury.”

Further in the report of 22nd December, 1976 Mr Wilson reiterates the above findings and goes on to say:

“This is the story of a severe ligamentous and soft tissue injury to the cervical spine and was associated with contusion of the sixth cervical nerve. There has been a subjective improvement when I examined him on the 27th October, 1976. He still had some difficulties with pain and discomfort in his head and neck. This occurred chiefly when he held his head in one position for any period of time. If he did any specific work on books or on calculations and things of this nature, he would experience neck and headaches. Sitting in certain chairs and driving in certain cars gave him discomfort. Sudden jars cause some pain and discomfort in the neck and when he extended his neck this caused some pain. These symptoms are those of a derangement of a cervical disc and one would have considered that they have resulted materially, to a large extent, from his injury. While it is reasonable to assume that he would probably have developed symptoms such as those due to a natural progression of wear and tear processes in his cervical spine, it would appear to me that there has been a rapid acceleration of these changes consequent upon his injury. I would consider that the injury described by him was of a severe nature and with this in mind, I feel that it has certainly materially affected the region of the C5-6 disc. It is difficult to form an evaluation of the effect of this injury, but perhaps one would consider that was the equivalent of some ten years of normal wear and tear to the cervical spine. In other words, within some ten years of the time of the accident, had this injury not taken place, he would have developed similar symptoms to those which he is now experiencing. Thus I would suggest for your consideration that the effect of his injury was the equivalent of some ten years of normal wear and tear.”

The evidence taken on commission from Mr. Wilson is in much the same terms as outlined in his earlier reports and I do not repeat it. He did say, however, that he considered the plaintiff had an irregular disc at the C5-6 level which prior to the injury was not causing any symptoms. Thus, “at the time of his injury one has subjective evidence that this disc was injured and since that time he is continuing to have symptoms in his cervical spine. So therefore I would feel that whilst it was a pretty severe stress to his neck that that disc was probably suspect and it has given way. If that disc was not suspect maybe he might have damaged a normal spine, I don’t know, but I feel that disc was suspect and was damaged and is now continuing to give symptoms ...”

In my view the defendant must take the plaintiff as he finds him and it is not an answer to say that he had a suspect disc prior to the accident.

It has been submitted quite fairly that this is not the worst type of whiplash case. Nevertheless it was a severe injury which has caused the plaintiff’s life to change from a comfortable to an uncomfortable one. He has had to give up the game of golf which is a substantial loss as it was his only form of sporting recreational life and the social enjoyment which attaches to the game of golf.

I have already indicated that the plaintiff makes no claim 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 minor disfiguring scars. In my view the effect of Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[dccxxiv]¹ is that 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. In all the circumstances I assess general damages at K8,500.

A claim is made for special damages in the sum of K920.30. Included in this amount were medical and accommodation expenses and these have been agreed upon. However, the cost of two air-fares are in dispute. The first was for $327.00 in 1974 when the plaintiff visited Mr. Wilson in Brisbane and for K357.20 for the same purpose in 1976. The defendant submits that the plaintiff could have visited an orthopaedic surgeon in Port Moresby and that therefore he should not be liable for these amounts. In my view this is a question of reasonableness in all the circumstances. The plaintiff’s evidence is that he felt he was not getting proper treatment in Mount Hagen and he was aware that there was no orthopaedic surgeon in the Highlands. He did not know the situation in Port Moresby and for this reason went to Brisbane on the first visit to Mr. Wilson in 1974. In relation to the second visit the defendant had requested that he see Dr. Clezy in Port Moresby for a further examination. However, upon arrival in Port Moresby he was informed that Dr. Clezy was sick and unavailable. His own solicitors then requested an up to date medical report and it was for this reason and to seek further treatment that he again flew to Brisbane to see Mr. Wilson. In evidence taken on commission Mr. Wilson was asked whether he was surprised that the plaintiff had seen no doctor in Papua New Guinea and he stated that it was a very common thing, especially with spinal injuries for persons to come directly to Australia. There is no doubt that the plaintiff could not have got adequate treatment or advice in Mount Hagen and in view of the specialized nature of spinal injuries which Mr. Wilson has alluded to I do not think that his trip was unreasonable. There is no evidence before me that adequate treatment in this specialized field was available at that time in Port Moresby. I am also of the view that the second visit was not unreasonable. Dr. Clezy was unavailable at the time and it was natural that further treatment and an up to date report would be required. For these reasons I allow special damages as claimed in the sum of K920.30.

Thus the plaintiff is entitled to an award of K9,420.30.

I give judgment for the plaintiff in this amount against the defendant.

Orders accordingly.

Solicitor for the plaintiff: Gadens.

Solicitor for the defendant: C. Maino, State Solicitor.

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