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Lam v Walaun, Tamur and Lam [1979] PNGLR 637 (18 December 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 637 - Basil Lam v Micca Walaun, Eliakim Tamur and Bernard Lam 

[1979] PNGLR 637

N210

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BASIL LAM

V

MICCA WALAUN

FIRST DEFENDANT

ELIAKIM TAMMUR

SECOND DEFENDANT

AND BERNARD LAM

THIRD DEFENDANT

Rabaul

Wilson J

16-17 October 1978

21 March 1979

18 December 1979

DAMAGES - Personal injuries - Particular awards of general damages - Head injury - Right sided haematoma - Brain damage and personality change - Impaired intellect - Slurred speech - Weakness with activity - Capable only of light work with minimal public contact - Male customs clerk with potential to become licensed customs agent aged nineteen (twenty-four at trial) - Award of K32,000 general damages (including K22,000 for reduced earning capacity).

The plaintiff, a customs clerk with real potential to become a licensed customs agent, aged nineteen (twenty-four at trial), claimed damages for personal injuries arising out of a motor vehicle accident. The principle injury was a head injury with loss of consciousness for two weeks and requiring surgery for removal of a right sided haematoma and causing brain damage with impaired intellect. Residual disabilities included a right sided facial weakness, slurring of speech, blurred vision with reading, general weakness with activity and a significant personality change. Prior to the accident the plaintiff was a healthy extroverted person of stable personality who enjoyed sport, social life, playing guitar and singing; at the time of trial he was an introverted person with some moroseness, self pity, moodiness and depression, capable only of light work involving minimal contact with the public.

Held

General damages should be assessed at K32,000 including K22,000 for reduced earning capacity.

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 December 1974.

Counsel

M. N. Wilson, for the plaintiff.

G. Evans, for the defendant.

Cur. adv. vult.

18 December 1979

WILSON J:  The plaintiff in this action received a head injury in a motor vehicle accident which occurred on the 6th December, 1974. He seeks damages against the defendants. As liability has been admitted, this case comes before me as an assessment of damages.

The plaintiff is the eldest of eight children. He was nineteen years of age at the time of the accident. He had, since leaving school, worked as a customs clerk and a salesman, and was, at the time of the accident, about to start work with Steamships Trading Company Ltd. as a customs clerk. He was a popular young man who liked to play sport, go motor-cycle riding, play the guitar and sing. He had good prospects both socially and economically.

The plaintiff was admitted to the Nonga Base Hospital, Rabaul after the accident. Soon after his admission he was operated upon, and, following that, was unconscious for two weeks, during which period he had two further operations to evacuate a right-sided subdural haematoma. He is lucky to be alive and owes a good deal to the skill of the medical practitioners who operated upon him and treated him. At the time of his discharge from hospital five weeks after the accident he had difficulty in speech, weakness of his left arm and left leg, facial weakness on the right side, and double vision.

During the first half of 1975 he gradually improved. He no longer had double vision; his left arm and leg gained strength, and his facial weakness became less obvious. His speech improved but it remained a problem. It became noticeable that he was forgetful and had impaired concentration.

Two years later, i.e. in the middle of 1977, the plaintiff still had a number of disabilities. Although he no longer had double vision, his vision was blurred during reading. Although he had practically normal power in his left arm and leg, he was clumsy and he felt weak if he worked hard. He had slight residual right facial weakness. He was troubled by his speech, which sometimes was slurred, and this caused people to have difficulty in understanding him. His problems regarding memory and concentration persisted. All of these problems were at that time regarded as permanent, and I find that that is still the correct assessment. They persisted at the time of the court hearing.

I am satisfied on the evidence placed before me that the plaintiff’s head injury was such (and the extent of the brain damage was such) that he has undergone a personality change. This was described in a very vivid way by his mother and in a very professional manner by Mr. M. L. Zimmerman, the psychologist. Comparing his intellect after the accident with before the accident, the difference is “significant” and his intellect has deteriorated from “fair to satisfactory” to “below average to poor”. Prior to the accident he had an extroverted and generally stable personality; since the accident he has become introverted “with some moroseness, self-pity, moodiness and depression”. I noted his disposition as “sad and forlorn”. is change of life-style was described by Mr. Zimmerman as “crippling”. He has been affected (and continues to be affected) in a number of ways:

a.       altered sleeping pattern with partial insomnia and frequent nightmares,

b.       severe headaches from time to time, and tiredness,

c.       difficulty in obtaining and retaining a girl-friend, involving him in feelings of anguish — he has a problem in knowing how to behave in social situations involving the opposite sex,

d.       inability to participate in and enjoy guitar-playing, singing and most sporting activities,

e.       an embarrassing employment history.

His personality change will be permanent. I accept the evidence, both oral and written, presented by Mr. Zimmerman, and prefer that to the written evidence of Mr. Paul Symons, another psychologist, who, for reasons he explained, was less confident in expressing his opinions.

In reaching my conclusions of fact on the evidence I prefer the evidence of the plaintiff’s witnesses and as is contained in the plaintiff’s exhibits to the documentary evidence tendered on behalf of the defendants. I am satisfied that the plaintiff sustained more brain damage and has experienced a greater intellectual and personality change than Dr. Clezy was prepared to concede after one clinical examination.

Mr. M. N. Wilson, for the plaintiff, quoted in his written submission from Mann’s Medical Assessments of Injury for Legal Purposes. I only rely on the passages quoted in so far as they are supported by the evidence and to the extent that they help to explain the evidence that was given.

Mr. Evans, for the defendants, argued that no damages should be awarded on account of the alleged personality change because the particulars of injury in the plaintiff’s statement of claim do not expressly include such an allegation. I cannot accept such an argument for the reason that the plaintiff’s pleading, at least by implication, incorporates within its ambit the personality and other changes that are ancillary to the physical injuries and impairments that are pleaded. Furthermore, there was no challenge to the admissibility of the evidence regarding personality change, to which issue much time was devoted. I therefore cannot see how Mr. Evans can, at the conclusion of the hearing, validly assert that “the trial proceeded on a basis that no compensation was claimed for personality change”, when he did not even object to the evidence in relation thereto, let alone convince this court to reject it.

The plaintiff is entitled to be compensated for his pain and suffering (past, present and future) and for his loss of amenities of life, as well as for the residual disability he has. He carries with him a permanent disability; his life since the accident has been less fulfilling and, in terms of future happiness, he will be significantly worse off than would have been the case if he had not had the accident. His opportunities for enjoyment of a social life are restricted; he may encounter real difficulties regarding marriage. Miss O’Keefe’s evidence made a strong impression on me in this regard. The plaintiff is socially and intellectually retarded as a consequence of the accident. He will encounter real, sometimes severe, problems in the employment sphere. I allow K10,000 under the heading of pain and suffering, loss of amenities of life and residual liability.

Before the accident the plaintiff was destined to work in fairly regular and reasonably fulfilling jobs, probably at about the clerical/assistant level, and probably also supplemented by some earnings as a musician. He had aspirations to be a customs clerk. After leaving school he worked variously as a customs clerk and as a salesman earning between K35 and K46 net per week. Shortly before the accident he was earning K15 per week extra as a singer working on Saturday nights; but this was not regular income. I do not think he would ever have achieved professional or business executive status. Since the accident his employment history has been insecure. He attempted to work as an apprentice outboard-motor mechanic but, on account of his clumsiness, could not do the work satisfactorily; he was put on to washing cars and understandably gave up that job when feeling that that sort of work was beneath him. After a gap of about two months the plaintiff then worked for about a year as a shop assistant working for Steamships Trading Company Ltd. in Rabaul. His disabilities prevented him having the sort of responsibility that he wanted to have and this led him to resign in April 1977. Two months later he started a job with P.N.G. Printing Pty. Ltd. and he worked with difficulty for seven months as a customs clerk. In 1978 the plaintiff did some part-time work as a waiter initially at the Steakhouse in Rabaul and later at his mother’s restaurant in Kieta. He is only capable of light work with minimal contact with the public; he needs sympathetic supervision. His difficulties with employment were explained by Mr. Zimmerman, and I accept his explanation.

Had he not had the accident, it is probable that the plaintiff would not have stayed with the same employer, and therefore it is likely that he would have had some periods out of work between jobs. However, the probabilities are that the plaintiff would have, in a period of approximately two years, become a licensed customs sub-agent. The fact that he tried, with difficulty, to do customs work after the accident is an indication of his underlying aspirations.

Throughout the period of two years following the accident, his net loss was K70 to K80 per week when he was not working and varying from K30 to K45 per week when he did work. In the period since early 1977, when I consider he probably would have become a licensed customs sub-agent if there had been no accident, his net loss has been approximately K120 per week when not working and between K70 and K75 per week when working. I am satisfied that the plaintiff will be able to earn more than he is currently earning. I assess his loss of earnings to the date of judgment, after allowing something for contingencies, at K9,000.

Taking into account all the evidence regarding loss of earnings and loss of earning capacity (and exhibit R in particular), and noting a lack of specific evidence about future employment opportunities, I think it would be reasonable to assess the plaintiff’s loss of earning capacity as not less than one-third of his full capacity.

Regarding future loss of earning capacity I assess that upon the basis of an allowance of K40 per week (being one-third of K120 per week net) capitalised at eight per cent over a period of forty years. That results in a figure of K25,740. From this figure some allowance needs to be made for unfavourable vicissitudes. I would allow K22,000.

Thus, the plaintiff is entitled to the following damages:

GENERAL DAMAGES

There will be judgment for the plaintiff in the sum of K41,000. As I wish to hear counsel on the question of interest and cost, I will adjourn the format entry of judgment to a date to be fixed in February 1980.

Judgment accordingly.

Solicitors for the plaintiff: Warner Shand Wilson & Associates.

Solicitor for the defendant: Gadens.