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Pupu v Tomilate and The State [1979] PNGLR 108 (10 April 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 108 - Charles Pupu v Pelis Tomilate and The State 

[1979] PNGLR 108

N200

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CHARLES PUPU

V

PELIS TOMILATE AND PAPUA NEW GUINEA

Waigani

Saldanha J

13-17 November 1978

10 April 1979

DAMAGES - Measure of damages - Personal injuries - Loss of earning capacity - Tax position to be taken into account - English common law applied.

DAMAGES - Personal injuries - Particular awards of general damages - Paraplegic - Spinal fractures at T12-L1 - Confined to wheelchair - National - Qualified aircraft maintenance engineer with real prospect of becoming first national licensed aircraft maintenance engineer - Male aged twenty-five (twenty-eight at trial) - Award of K103,940 including K58,085 for future loss of earnings and K15,855 for future expenses.

The plaintiff, a qualified aircraft maintenance engineer in the process of studying and training to become a licensed aircraft maintenance engineer (and most likely to be the first national so to become) aged twenty-five (twenty-eight at trial and working with the Department of Works and Supply as a class six qualified tradesman doing repair and maintenance work on starter motors, alternators etc.) claimed damages for personal injuries arising out of a motor vehicle accident. In the accident the plaintiff suffered multiple injuries, the most severe of which was a fracture of the spine at T12-L1, as a result of which the plaintiff was permanently paralysed below the waist and required to spend the rest of his life in a wheelchair and subject to the usual bowel and urinary problems associated with paralysis. After some six months in hospital the plaintiff went to live in a small flatette attached to the shop of an uncle and with the help of a seventeen year old relative who cooked, cleaned and washed for him.

Held

(1)      In assessing damages under the heading of loss of earnings, actual and prospective, the income tax which the plaintiff would have or would have to pay must be taken into account.

British Transport Commission v. Gourley[1955] UKHL 4; , [1956] A.C. 185, followed and applied.

Atlas Tiles Ltd. v. Briers [1978] HCA 37; (1978), 52 A.L.J.R. 707, not followed.

(2)      General damages should be assessed at K103,940 (including K58,085 for future loss of earnings, K15,855 for future out of pocket expenses, e.g. medical, house alterations, and K30,000 for pain and suffering, etc.).

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 November 1976.

Counsel

D. I. Cassidy and K. A. Wilson, for the plaintiff.

J. A. Ross, for the defendants.

Cur. adv. vult.

SALDANHA J: This is an action for damages for negligence arising out of an accident on the Racecourse Road or the Waigani Drive (hereinafter referred to as the “Waigani Drive”) when a Honda motor cycle ridden by the plaintiff collided with a motor car owned by the second defendant and driven by the first defendant. It is alleged by the plaintiff that as a result of the negligent driving of the motor car by the first defendant the plaintiff sustained injuries. The plaintiff further alleges that by virtue of s. 4 of the Motor Vehicles (Administration Liability) Act the first defendant was an agent of the second defendant within the scope of his employment and that, therefore, the second defendant is vicariously liable for the first defendant’s negligence. The plaintiff claims damages from both defendants for the injuries and the disabilities suffered by him.

The defendants deny liability and dispute the damages claimed by the plaintiff. They say that if it were true that they themselves had been negligent the plaintiff was guilty of contributory negligence.

The plaintiff’s case is as follows. On 27th November, 1976, just after midnight the plaintiff set off on his motor cycle for B.P. Service Station at Boroko to buy cigarettes. He had only a two kina note, the service station’s vending machines were equipped for taking coins only and the attendant at the service station had no change. He was told that he might get cigarettes at the service station near the Islander Hotel. Accordingly the plaintiff set off on his motor cycle for this service station near the Islander Hotel.

He drove along the Hubert Murray Highway and turned left into Waigani Drive. He was doing thirty to thirty-five miles per hour. He was approaching the Plant and Transport Authority yard where a road on the left forms a T-junction with Waigani Drive. The plaintiff has referred to this road as an unnamed road. Mr. Ross, counsel for the defendants, says it is called Stores Road. I shall refer to this road hereafter as Stores Road.

The plaintiff says that he saw the lights of a motor vehicle coming along Stores Road and approaching the T-junction. He slowed down in case the driver of the motor vehicle did not give way. The motor vehicle, however, stopped when it was about twenty feet from the junction. So he accelerated to about twenty-five to thirty miles per hour. But the driver of the motor vehicle changed his mind and drove forward intending to turn right into Waigani Drive in the direction of Boroko and his motor cycle collided with the motor vehicle. There is a centre line along Waigani Drive. He himself was riding along the middle of his correct side of the road. He saw no signals being given. He was flung up into the air by the force of the collision. The next moment he was on the ground with an agonising pain in his back. He was unable to move his legs and there was no feeling in them.

About half an hour later an ambulance took the plaintiff to Port Moresby General Hospital where he was found to have sustained multiple lacerations of the back, right knee, lower lip and tongue. He had a fracture of the spine involving the twelfth thoracic and the first lumber vertebrae, that is, approximately in the middle of his back, and damage to the spinal cord resulting in paralysis of the muscles and loss of sensation below the waist. His legs were paralysed and he had no control over his bladder and bowels. He had fractures of the tenth and twelfth ribs on the left side, a comminuted fracture of the right femur and fracture of the right patella.

At an operation performed on 27th November the dislocation of the spine was reduced, the lacerations repaired and traction applied to the right femur after insertion of a pin in the right tibia. The injury to the left side of the chest led to the development of a haemopneumothorax which was successfully treated leaving no disability in lung function.

He spent about six months in Port Moresby General Hospital and, apart from being made to sit up in bed a couple of times towards the end of his stay there, he lay flat on his back all the time. He had a catheter to void urine.

On 25th May, 1977, he was taken by air with a nurse in attendance to the Spinal Injuries Unit of the Princess Alexandra Hospital in Queensland. X-rays showed that the fracture in his spine had healed and the fractured bone in his leg was uniting satisfactorily. He was placed in a wheelchair soon after admission and started on a programme of physiotherapy and occupational therapy. The catheter was removed and a device fitted to collect urine in a bag. He was taught how to empty his bladder by pressing on it with his fists and to empty his bowels by using his abdominal muscles. He was also taught how to relieve pressure and thus avoid pressure sores by lifting himself up by his arms every half hour or so. He was taught the use of a wheelchair and taught exercises to maintain the mobility of paralysed joints and muscles. The exercises caused a re-fracture of the right leg at the site of the original fracture which took a few weeks to heal.

He had a bladder infection as a result of using the catheter but the infection cleared after the catheter had been removed. A small stone was found in the lower part of his left kidney but this was not removed because it was not expected to interfere with his future health. Should the kidney become infected in the future the stone can easily be removed surgically. Small stones were found in his bladder and these were successfully washed out. A medical report from Dr. Davies, the director of the spinal injuries unit, states that the plaintiff is incontinent of urine but can maintain continence regarding his bowel action. Due to his paralysed bladder he will be prone to urinary tract infection but regular attention to his bladder in the way he has been taught should keep him free from infection. He should be able to enjoy a normal span of life. It is almost certain that he will be unable to father children and his sexual ability will be limited by his disability.

Charles left the spinal injuries unit in November 1977, and returned to Rabaul. After about a month he started working for the Department of Works and Supply at Rabaul. A social welfare officer got him the job on humanitarian grounds to assist him in his re-adjustment to routine work. He is employed as a class six qualified tradesman on a wage of K45.78 per week. He works in the electrical section. Within a short time he has learned to repair, service and maintain starter motors, alternators, generators, regulators and other electrical components from cars and trucks. He cannot install or remove the components because of his immobility. His performance is exceptionally good but somewhat affected by his erratic attendance at work. Out of two hundred working days he has been absent for sixty-six and a half days due to illness, mainly pressure sores which on one occasion led to his becoming infected with tetanus.

His uncle, who owns a shop, gave him the use of two rooms with bathroom and toilet facilities in a store attached to the shop. At about the same time a relative by the name of Levy Turbalil, aged about seventeen, who works for his uncle in the shop, started to help him. He cleaned his quarters, cooked his food, washed his clothes and did other jobs for him. His uncle pays Levy K30-K40 per fortnight. He himself does not pay him but provides him with food, clothes and cigarettes worth altogether about K15 per fortnight. There is an understanding, however, that if Charles were to get an award of damages he would pay Levy.

Charles was born on 2nd February, 1953, so that at the time of the accident he was nearly twenty-five years of age. He studied at primary school, high school and technical college and achieved form IV, after which he joined Trans-Australia Airways (which later became Air Niugini) at Lae. Later he was transferred to port Moresby. After a five-year apprenticeship he qualified as an aircraft maintenance engineer (A.M.E.). He got the first prize for being the best engineering student. Komine Konawi, who joined the apprentice training scheme at the same time, received the second prize. At the time of the accident Charles was studying and training to become a licensed aircraft maintenance engineer (L.A.M.E.).

He was the first national to become an A.M.E. He is intelligent, he was dedicated to his work and he worked hard. There is no doubt at all that he would have been the first national to become an L.A.M.E. He had excellent prospects of promotion and a brilliant and lucrative career ahead of him particularly as and when Air Niugini and the Civil Aviation Agency became nationalised.

On the question of damages plaintiff’s counsel has made a submission in writing itemising under various heads the damages the plaintiff is claiming. I set out below the items under the respective headings and the amounts claimed in respect of each item. Some items have been agreed and others disputed. I shall indicate the items that have been agreed and give my findings in respect of the items in dispute together with my reasons for the findings. I shall also set out in the last column of figures the amounts agreed by the parties and of those that are in dispute the actual amounts allowed by me.

1. PAST OUT OF POCKET EXPENSES

Items (a), (b), (d), (e), (g), (h), (k) and (l) are agreed. Item (c) wheelchair and (f) air fares, Port Moresby to Brisbane and return, were paid for by Air Niugini. They are disallowed. Item (i) wages for helper and (j) keep for helper are in dispute. I agree with Mr. Ross, that this claim is grossly excessive. Levy works for his uncle in the shop. He cleans plaintiff’s quarters, washes his clothes and performs other small chores. He cooks plaintiff’s meals together with those of three or four others. Levy could not be spending much time working for the plaintiff. For the two items together I would allow at the rate of K15 per fortnight the sum of K390.

2. PAST LOSS OF EARNINGS

Item 2.(b) is agreed. With regard to item (a) Mr. Ross contends that while the plaintiff was in hospital in Port Moresby and in Brisbane he spent nothing and that the amount claimed should be reduced by sixty- six per cent. I agree that allowance should be made for the fact that had the plaintiff not been in hospital he would have been spending a certain amount of money on necessaries for himself. I shall deduct fifty per cent and allow a sum of K1,522.

3. FUTURE EARNING LOSS

In computing this part of his claim plaintiffs’ counsel, Mr. Cassidy, has used before tax figures. He relies upon Atlas Tiles Ltd. v. Briers[xcv]¹ for the proposition that the fact that the plaintiff would be paying income tax on his future earnings should not be taken into account. The law applicable in Papua New Guinea is the English Common Law: see Sch. 2.2 of the Constitution.

In British Transport Commission v. Gourley[xcvi]² the House of Lords decided that in awarding damages in respect of loss of earnings, actual and prospective, the tax position should be taken into account. I am aware that the modern trend is to look upon this loss not so much as loss of future earnings but a present loss of earning capacity. Nevertheless I consider myself bound by Gourley’s case and I find that in assessing damages under this head the income tax which the plaintiff would have had to pay must be taken into account.

It is agreed that the comparable base salary should be taken as K4,500 p.a. Mr. Cassidy claims an additional 53.65 per cent of base salary as overtime. Mr. Ross maintains that overtime should be allowed at twenty per cent. Mr. Chatfield, the engineering training officer of Air Niugini, has said that overtime work amounted to about forty per cent of base salary. He has also mentioned various fringe benefits which A.M.E.’s employed by Air Niugini were entitled to and which have not been taken into account. I consider that forty per cent is a fair and reasonable figure to allow for overtime work.

Under 3.(b) I arrive at a figure of K47,125 made up as follows:

4. FUTURE OUT OF POCKET EXPENSES

Items (b) and (c) are agreed. Counsel for the defendants contends that item (a) should be disallowed. He says that plaintiff should be able to look after himself. I do not agree. I think that the plaintiff has a duty to mitigate his loss. He must do what work he can and earn as much as possible and, in order to enable him to do this, it is fair and reasonable to allow him the services of a domestic. Under 1.(i) and 1.(i) above (wages and keep for helper in the past) I allowed a sum of K15 per fortnight and it is only logical that I should allow the same sum under 4.(a). I calculate the amount under this head as follows:

Wages for helper at K15 per fortnight = K390 per annum.

K390 per annum X 14.8460 = approximately K5,850.

With regard to item (d) I do not consider that plaintiff is entitled to a car and I consider that air conditioning is a luxury. The cost of converting a standard car to manual control is K250. A car would be expected to last him about five years so the cost of conversion per annum would be K50. A depreciation/sinking fund would be—

K50 per annum X 14.8460 (say fifteen) = K750.00.

Regarding item (e) (house) I disallow the claim for a house and land upon which to build it. Had the plaintiff not been disabled he would have lived in rented accommodation or, if he wished to live in a house of his own, he would have had to purchase this out of his own earnings. This is what I would expect him to do now: purchase his own house or, if he cannot afford to do so, live in rented accommodation. It would be fair and reasonable, however, to allow him the cost of altering a house which is K3,000.

With regard to item (f) (wheelchair) I am of the opinion that the chair which he now uses and which was provided by Air Niugini free of charge is adequate. This chair costs K309.50. It should last him for at least five years so that the annual cost would be K62. A depreciation/sinking fund needed to keep him in supply of wheelchairs in the future would amount to K62 per annum X 14.8460 (say fifteen) == K930.00.

The plaintiff claims the sum of K55,000 as general damages for pain and suffering and loss of amenities of life. The assessment of damages under this head is always a difficult task mainly because it is impossible to adequately compensate a man for the loss of a limb or loss of a faculty or function. All that the court can hope to do is to try and be fair and reasonable having regard to plaintiff’s injuries and disabilities and keeping in mind the community’s standards of fairness and moderation. Nor am I troubled by the kind of considerations which the judges had to take into account in the cases of Administration of Papua New Guinea v. Carroll[xcvii]³ and Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[xcviii]⁴. The difficulties in those two cases arose because the plaintiffs were expatriate Australians who had been working in this country, had suffered injuries here but would be spending the rest of their lives in Australia.

In the case before me the plaintiff is a national born and bred in Papua New Guinea. He will be spending the rest of his life living and working in this country. Although born in a village near Rabaul he has spent most of his life in an urban environment. As an L.A.M.E. he would have been working and living in the big towns and cities of this country. The nature of his injuries and the need to avoid infection makes it essential that he continue to live in an urban environment for the rest of his life. He enjoyed a reasonably good standard of living especially after he qualified.

He was the first national to qualify as an A.M.E. and would undoubtedly have been the first national to qualify as an L.A.M.E. He is intelligent, worked hard and was interested in his job. I would have expected him to be at the top of his profession before long. With the rapid pace at which nationalisation is proceeding he would have had excellent chances of promotion and appointment to one of the top positions in his profession.

He suffered a lot of pain when his back was first broken. As it healed the pain became less. He had broken ribs and a broken right leg. He was on his back in Port Moresby General Hospital for about six months with a catheter to void urine and unable to control his bowels. He will have to wear the urine-collecting device all his life and suffer the inconvenience that this entails.

He is prone to urinary tract infection and infection of the kidneys. He is also subject to pressure sores. He has to take great care and put up with a great deal of inconvenience to avoid infections and pressure sores.

He is confined to a wheelchair for the rest of his life. This greatly hampers his mobility with the result that he is restricted as to the kind of work he can do and in social activities. There are certain kinds of sports in which paraplegics can indulge, and, indeed, Charles has been abroad and participated in competitive games for paraplegics. It appears that before his injury he was not greatly given to sport so perhaps the inability to participate in sports will not be such a great hardship after all.

For all practical purposes he has lost all sexual function. The chances of his getting married are almost nil. He will almost certainly never be able to father children.

But the future is not as bleak as it seems largely due to Charles’ personality and outlook on life. He has a cheerful disposition. He is optimistic. Within a year of his accident he was as capable as a man in a wheelchair can be to look after himself and attend to his bodily needs. I got the impression that he has come to terms with his condition, that he has accepted it and will do his best in the circumstances. Such a man will not lack helpers and will readily get the kind of assistance that handicapped people need.

I award him general damages in the sum of K30,000.

The sum total of the damages awarded to the plaintiff is K116,798.90 made up as follows:

There will be judgment for the plaintiff against both defendants jointly and severally for K116,798.90 with costs.

Judgment accordingly.

Solicitor for the plaintiff: M. Kapi, Public Solicitor.

Solicitor for the defendants: C. Maine-Aoae, State Solicitor.

[xcv][1978] HCA 37; (1978) 52 A.L.J.R. 707.

[xcvi][1956] A.C. 185.

[xcvii][1974] P.N.G.L.R. 265.

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