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Darvill v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 548 (17 October 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 548 - Margaret Darvill v MVIT 

[1980] PNGLR 548

N259

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MARGARET DARVILL

V

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

Waigani

Bredmeyer AJ

28 August 1980

17 October 1980

DAMAGES - Personal injuries - Particular awards of general damages - Back injury - Fracture of first lumbar vertebra - Continuing psychological stress - Restricted agility - Married woman aged forty-one (forty-four at trial) - Part-time bookkeeper - Award of K19,000 general damages.

The plaintiff, a married woman working part-time as a bookkeeper, aged forty-one (forty-four at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered was a compression fracture of the first lumbar vertebra, resulting in an organic lesion, and some malalignment of the spine, with continuing intermittent pain particularly with prolonged exertion. The plaintiff also suffered from psychological stress which continued at the date of trial and which was likely to improve but not to cease after the hearing. At the time of trial the plaintiff was restricted in her household and recreational activities but it was held that she was fit for the kind of part-time work pursued prior to the accident.

Held

General damages should be assessed at K19,000.

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 August, 1977.

Counsel

P. Dempsey, for the plaintiff.

M. Challinger, for the defendant.

Cur. adv. vult.

17 October 1980

BREDMEYER AJ: Margaret Darvill, now of Sydney but formerly of Kieta, suffered injuries to her back in a motor vehicle accident near Kieta on 20th August, 1977. She has sued the Motor Vehicles Insurance (P.N.G.) Trust for damages. Liability is admitted and I have to assess damages.

Mrs. Darvill gave evidence and some medical reports were tendered, without objection, on her behalf. She began crying at the outset of her evidence and cried through most of the evidence. I formed the impression that she was basically a truthful witness but was giving evidence under emotional stress partly caused by the accident but largely caused by the strain and the atmosphere of giving evidence in court. I consider that the kind of emotional strain she demonstrated in the court is likely to cause her to exaggerate her pain and suffering and disabilities and where her evidence on these matters differs from the tendered medical reports I have preferred to believe the latter.

Mrs. Darvill suffered in the accident a compression fracture of the first lumbar vertebra. She suffered great pain, was hospitalized for two weeks in Arawa during which time she was prescribed rest, physiotherapy and pain killers. A catheter was installed for several days. Upon discharge from hospital she then spent about four weeks largely in bed in her home in Kieta. On 28th September, 1977, some six weeks after the accident, she and her husband returned to Australia to live permanently. Her convalescence continued in Australia for some months. I say “some months” because the exact period of the time is not stated in the evidence. During this period she spent much time in bed and began to walk about with the aid of someone supporting her and a stick. Gradually the periods of being up and about grew longer and she was able to walk unaided.

The substance of the evidence contained in the medical reports on her pain and suffering, loss of amenities and her psychological condition is as follows: The two Arawa doctors who attended her noted that she was severely handicapped by the injury but suffered no neurological deficit such as loss of power or sensation in her legs, or loss of control of her bladder. One doctor thought she was likely to suffer back pain for a long time and the other for an indefinite period. On transfer to Australia she came under the care of a surgeon, Dr. J. M. Ellis, who noted in October 1977 that she appeared somewhat distressed about the prognosis of her injury. He noted she used a stick for walking out of doors and took one Mogadon tablet at night to sleep and digesic tablets (to relieve pain) when necessary. He observed tenderness over the first lumbar vertebra but no other abnormality. In November 1977 she reported to Dr. Ellis that her back pain was diminishing but she felt insecure, weak and depressed. She said she did some ironing and washing. In January 1978 she reported to Dr. Ellis that she felt more comfortable standing or lying, and when sitting felt more comfortable with a cushion behind her low back. He noted that she sat in a slightly bizarre fashion. She said she had some backache every day and could not sit upright for more than ten minutes without developing pain in her back. She said she had to lie down because of her back-ache for example, three or four times in the previous two weeks. Dr. Ellis’ opinion in January 1978 was that the fracture had firmly united but that there was some residual malalignment of the spine which must cause her some backache on exertion. He encouraged her to swim. He thought it reasonable that she should have some nervous stress as a result of her accident but his impression was that her nervous condition was not entirely due to the accident but was perhaps due to the stage of life she had reached —alluding to the menopause. He thought if her condition did not improve he would recommend that she see a psychiatrist. She saw Dr. Ellis again in April and August 1978 and his opinion was that her condition was much the same as in January 1978. There was tenderness over the mid-lumbar spine; no local tenderness over the coccyx. Ankle and knee jerks were present and equal: she walked, trotted and squatted well. She said her husband helped her with household duties, she could wash up the dishes, she could iron for half an hour, but could not vacuum, clean or tuck in the bed clothes easily.

Dr. Ellis reviewed the plaintiff again in July 1980. She complained of low backache on sitting for more than ten or fifteen minutes. She said the backache was more easily produced later in the day, and was worse when she bent forwards; she said she could not vacuum for more than a few minutes because of the back pain. Her husband helped her with heavy housework and did some of the cooking. She said she could walk and shop for about thirty minutes and then had to sit down. She picked up objects from the floor by bending her knees; she said she was unable to hold a baby in her arms because of low back pain. Her appetite was good and her weight was increasing a little. She slept well at times. She took Stemetil two tablets daily (for giddiness and nervousness), Tryptanol two nightly (a sleeping pill) and one to three drinks of alcohol daily. She took up to four Aspros per week. She had tried to live a more normal life and this had caused more back pain. Dr. Ellis’ opinion in July 1980 was the same as that given in August 1978. He found tenderness in the lower spine. She has an organic lesion in her lumbar spine, a compression fracture of the body of the first lumbar vertebra which has reduced the anterior aspect of that vertebra by approximately one half and involves the discs above and below the first lumbar vertebra. The doctor felt sure that she does have some pain when she bends forward to vacuum. He though she had a little less nervous stress then when she was last seen. He considered her unfit for the most strenuous use of the back but considered her fit for light house-work.

The plaintiff gave evidence to me orally and in the form of an affidavit. Much of her evidence on her pain and suffering and restriction of activities, and the medication she takes reiterates the statements contained in the medical reports which I have related above and which I accept as truthful. But I wish to comment on some other parts of her evidence. She said that her back pain prevented her from having sexual relations with her husband for nine months. I believe that statement and that loss is compensable. Then she said that the forced inactivity caused by the accident had made her put on weight and that this depressed her as she had always taken pride in her appearance. I do not consider that there is much in this statement. My observation was that she did not appear to be overweight, or more than a few pounds overweight, for a forty-four year old woman. Her figure was certainly not unattractive. I am not satisfied that had there had been no accident her weight would necessarily have been any lighter. The restriction of activities caused by the injury, the fact that she does not go dancing or play squash and cannot walk shopping as freely as before, is compensable but not, I think, the increase in weight and her worries about that.

It is clear that the plaintiff has suffered considerable psychological stress since the accident, is still suffering and will suffer stress in the future. I note that all the medication she now takes—with the exception of the Aspros—and the alcohol, two or three drinks daily, is for this stress and not for back pain. I accept her evidence that pre-accident she had a normal and healthy personality although I note that she did suffer from migraine headaches. Part of her post-accident stress was caused by a sexual attack in Kieta. She was convalescing at home in the day time when an intruder came into the house and attempted to rape her. He was foiled by her screams and ran away with her handbag instead. She said had she had not had the accident the attack would not have happened because she would have been at work and not at home when the intruder called and she would have had the physical strength and the presence of mind to close the door before he got inside or to have repelled him. I can see the logic in these statements but consider as a matter of law that the additional stress caused by this attempted sexual attack is not compensable. It is a regrettable fact of life that such daytime attacks on expatriate women, fit or injured, are common in the towns of Papua New Guinea and I do not regard it as a reasonably foreseeable consequence of her injury that this attack should have occurred.

I consider that a large part of her pre-trial stress was caused by her husband being unemployed in Australia for fourteen months after he quit Kieta in September 1977. They were short of money, paid high rent and at times had to eat bread and cheese. I do not consider that that part of her anxiety caused by her husband’s period of unemployment is compensable. I can understand and consider it reasonable for an expatriate woman to leave Kieta for Australia because of the better medical treatment, or the hope of better medical treatment, available there. I can understand too a husband wanting to go with his wife to support her in her convalescence. But I do not consider it a reasonably forseeable consequence of the injury that her husband, with a somewhat checkered employment history behind him, should quit a well-paid job in Kieta for Australia without having arranged another job. In retrospect the husband’s decision was a foolish one and the extra stress it caused to the plaintiff is not compensable by the defendant.

As quoted from the medical reports above, Dr. Ellis considered that part of the plaintiff’s nervous condition might be due to the fact that the plaintiff was going through the menopause. When asked in court if she had reached this stage of life the plaintiff said “possibly”. I consider that I should make a slight increase in my award because of the menopause. I think it probable that the plaintiff’s accident-caused stress would make the menopause period far more difficult than for another person; and the increased stress is, to that extent, compensable as Mr. Challinger, counsel for the defendant, fairly conceded. The defendant must accept the plaintiff as he finds her. On the other hand, the increase in the award should be modest, because when the menopause period is over her mental stress will decrease accordingly.

I consider it probable that the plaintiff’s nervous condition will improve after this court case. As mentioned I consider the plaintiff found giving evidence an ordeal involving as it did the reliving of her injuries and the aftermath which included the attempted rape and some painful episodes in her relationship with her husband. I believe her distress in the witness box was largely caused by the aura of the courtroom and the necessity to relate these matters, rather than to the injuries themselves. Dr. Ellis expressed to the plaintiff the opinion that her nervous condition would improve after this court case and the plaintiff hopes that it will. The three-year wait for the court case is over, the ordeal of giving evidence is over and the financial security given by the award of damages, will all contribute to reduction of the nervous stress I consider she will experience in the future.

I now wish to make some findings of fact on the plaintiff’s pain and suffering and loss of amenities of life. The plaintiff suffered a compression fracture of the first lumbar vertebra. The area feels tender, there is an organic lesion in her lumbar spine and some malalignment of the spine. There is no neurological loss of function. She suffered great pain in the first few weeks after the accident—took pain killers and was forced to rest. She continued to suffer pain and disability for a considerable period after that. She continues to suffer back pain continually in the sense of intermittently. Sitting, bending forwards, and any prolonged exertion brings on the back pain. She can do light housework but certain activities such as vacuum cleaning and tucking in the bedsheets bring on back pain. She can no longer go dancing, play squash, or be as active as she was before and as she would like to be. I consider her physical condition is stable, that is, that her back pain and restriction of her activities are likely to continue for the foreseeable future.

In addition to the pain and restriction of activities the accident gave her a nervous condition which is compensable. Clerk and Lindsell on Torts[dccxcvi]¹. She takes medication for this, two Stemetil tablets daily for giddiness and nervousness and two Tryptanol sleeping tablets each night. She also takes two or three drinks of alcohol a day to steady her nerves. I consider her anxiety state is real and substantial and deserves adequate compensation. Part of her anxiety state—that caused by the attempted rape and her husband’s unemployment—is not compensable for the reasons given above. I consider that she will have some nervous condition for the rest of her life but that it is likely to improve after the court case and, to a lesser extent, after the menopause period has ceased.

How much should I award for pain and suffering and loss of enjoyment and amenities of life? Mr. Challinger, counsel for the defendant, argued that damages should be less in Papua New Guinea than in Australia. He said it would be inappropriate for me to place great weight on comparable verdicts in Australia, in the same way as he said a New South Wales Court should not look at New York verdicts. Nevertheless he cited to me two Australian verdicts and Mr. Dempsey, counsel for the plaintiff cited twelve Australian verdicts. I am bound by the Supreme Court decisions of Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[dccxcvii]², and Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[dccxcviii]³. The law contained in those cases is that the tortfeasor must take his plaintiff as he finds him and the court must provide a fair compensation to accord with the plaintiff’s needs. Taking into account the findings of fact and matters considered above I consider that a fair and reasonable award for this plaintiff for pain and suffering and loss of amenities of life is K19,000.

ECONOMIC LOSS

The plaintiff said that up until the time of the accident she had a part-time job with Sullivans (P.N.G.) Pty. Ltd. Kieta, her husband being the Branch Manager of that company. The pay was K65-K70 per week. She did not know if that figure was net or gross. I accept that evidence but as the plaintiff has not produced pay slips or salary records from the company which could have been produced I take the lesser figures. I find that she was paid K65 per week gross.

The plaintiff says she was unable to continue in that job and but for the accident she would have continued in that job for the duration of her husband’s contract, that is until February 1979. She says that her husband terminated his contract with Sullivans because he wished to go to Australia with her to assist in her recovery and convalescence. Counsel for the defendant asserted that he was dismissed shortly after the accident for incompetence but I consider that the defendant was unable to prove that. The witness called for the defendant, gave evidence on this which was inadmissible as hearsay and, in any event, not credible as he said Mr. Darvill was dismissed in June or July 1977, that is before the accident, which I do not accept. I believe the plaintiff that she and her husband left Kieta on 28th September, 1977, that is, after the accident.

I find that the accident caused the plaintiff to quit her part-time job with Sullivans and that but for the accident she would have continued in that job, until her husband’s contract expired. The plaintiff said his contract began in February 1977 and I deemed the date to be 20th February. I find she is thus entitled to loss of earnings from 20th August, 1977 (the date of the accident) to 20th February, 1979 at K65 p.w. gross. The taxation rate altered after 31st December, 1977. The net salary after tax pre-31st December, 1977 was K61.70 per week and alter that date was K59.23 per week. I have calculated her loss of wages to be:

I am unable to find that the plaintiff’s employment would have continued beyond the expiration of her husband’s contract for a number of reasons. First I very much doubt if the plaintiff would have been able to get a work permit after February 1979. She was a part-time bookkeeper and it is increasingly difficult for expatriates to get work permits for this kind of work. Secondly, her husband was newly employed by Sullivans and I cannot assume that he would have been offered a further contract. I note that he appears to have worked only a single-term contract with each of his other jobs in Papua New Guinea.

I am unable to find that the plaintiff has suffered any economic loss beyond February 1979. First, I am not satisfied that she is unfit for work. The plaintiff says she is unfit for any work. The doctor says she is fit for light housework. It is true that she has pain and discomfort in sitting and bending but I consider that there are many jobs which do not require bending and do not require any more sitting than in her normal day-to-day activities as a housewife at home. I am thinking of a clerical job answering the phone and queries at a counter, or working in a shop which is mainly standing. It is true that the plaintiff has a nervous condition caused by the accident but, serious as it is, I do not consider that it would prevent her from getting a job. It counts against the plaintiff’s case for loss of earnings and loss of future earnings that she has not, post-accident, applied for jobs. Secondly, I do not know what jobs, if any, have been available to a fit woman of the plaintiff’s age and with her experience in New South Wales since February 1979. She gave evidence that in her seven years in Papua New Guinea she had no job in Port Moresby or Wewak but worked one to one and a half years in Madang as a librarian and, as has been noted, for about six months in Kieta as a part-time bookkeeper. In Australia, presumably between 1973 and 1977, she worked two years in a children’s home and two and a half years in a departmental store. I was asked to infer from this work history that the plaintiff would have been able to get a job in Australia post-accident but for her injuries. No other evidence was put before me as to job opportunities in Australia for a forty-four year old woman who has no formal qualifications. Unlike perhaps a judge sitting in New South Wales I do not know, and I cannot take judicial notice, of the employment opportunities that exist in New South Wales for a person like the plaintiff. I suspect that her age and lack of formal qualifications may prevent her from getting a job, but I do not know. I consider the claim for continuing economic loss after February 1979 unproved.

Damages are payable to the plaintiff as follows:

Interest is claimed and is payable under s. 42 of the Law Reform (Miscellaneous Provisions) Act 1962. The principles for calculating interest have been clearly set out by Mr. Justice Wilson in the case of Aspinall v. The Government of Papua New Guinea (No. 2)[dccxcix]⁴ and I propose to apply them to the heads of verdict given above. I apportion the verdict for pain and suffering and loss of amenities as K10,000 pre-judgment and K9,000 post-judgment. Interest on K10,000 at four per cent from the date of issue of the writ (24th October, 1977) to date of judgment approximately three years equals K1,200. Interest on the pre-trial loss of earnings K4,666.87 over three years at eight per cent equals K1,120.04. The pre-trial special damages of K406.70 were paid at different times but I consider the largest bills were incurred immediately after the accident. I propose to allow interest at eight per cent on the total interest under these three heads is K2,417.64.

The final verdict for the plaintiff is:

There will be judgment for the plaintiff for this sum plus costs to be agreed upon, or failing agreement, to be taxed.

Judgment accordingly.

Solicitors for the plaintiff: Gadens.

Solicitors for the defendant: Young & Williams.

[dccxcvi] (13th ed., 1969) par. 369.

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

[dccxcviii] [1979] P.N.G.L.R. 251.

[dccxcix] [1980] P.N.G.L.R. 50.