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Birim v Mohamad and PNG [1981] PNGLR 545 (16 April 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 545 - Kuruo Birim v Jovane Mohamad and PNG 

[1981] PNGLR 545

N289

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KURUO BIRIM

V

JOVANE MOHAMAD

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Minj & Waigani

Pratt J

19-21 November 1980

16 April 1981

DAMAGES - Personal injuries - Particular awards of general damages - Leg injuries - Fractured femur - Pinning - Shortening of leg - Highland villager - Part subsistence and part coffee farmer - Middle aged male - Award of K12,000 general damages.

The plaintiff a village farmer in his late forties or early fifties claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered was a fracture to the neck of the left femur requiring a left hip prosthesis and resulting in a shortening of the leg by between one half to three quarters of an inch, with osteo-arthritis. With the consequent difficulties in performing heavy work and climbing, the plaintiff was unable to pursue his farming activities on mountainous ground.

Held:

General damages should be assessed at K12,000.

Trial.

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

Counsel:

W. Neill, for the plaintiff.

M. Fitzsimmons, for the defendant.

Cur. adv. vult.

16 April 1981

PRATT J:  The evidence discloses that the plaintiff suffered severe lacerations to one of his ears, minor injuries to the left arm and a fracture to the neck of the left femur. Hospital records are apparently not available for the periods of his initial treatment but the plaintiff says that he spent seven months in hospital (Kundiawa and Goroka) and a period of some months on crutches. An x-ray examination carried out in November of 1978 confirms a left hip prosthesis had been placed in position—no doubt the pin referred to by the witness as the piece of iron placed there by the doctors when they cut his leg. The leg has been shortened by somewhere between a half to three-quarters of an inch. The plaintiff maintains that he suffers pain when standing and that he is unable to negotiate steep terrain and has difficulty in traversing uneven ground. Although the countryside in the immediate environs of his house is flat, the surrounds are mountainous and thus his gardens are inaccessible. Fear of sustaining further injury inhibits any attempt to walk in wet weather. There is some evidence of osteo-arthritis and it is clear that he is incapable of performing any heavy work.

I would estimate the plaintiff’s age in his late forties or early fifties. He has two wives, who by custom should attend to the gardening, but he of course is no longer able to carry out the tasks allotted to the male by custom. Apart from subsistence gardens, he grows coffee on two separate allotments, one for each wife. It appears that each garden is approximately 100 x 300 metres, but I am not particularly clear as to the quantity of coffee produced either in 1973 or in 1980. It would seem that twelve bags per year were produced in 1973 and thirteen bags in 1980, yet because of his infirmity he is alleged to receive a yield approximately one-third below that of an efficient farmer from each tree. It also appears from the evidence of Mr. Bruno Garimo, who has seen the plaintiff’s gardens, that the two coffee gardens are broken up into seven plots each with sixty trees giving an all-up yield of four hundred and twenty-two kilos per year. I do not have any evidence before me as to the present age of the trees or their life expectancy, or what the position will be for the plaintiff in the event of replanting requirements. Of course coffee prices have fluctuated over the years from K1.40 per kilo to 60 or 84 toea per kilo. I think the suggestion by both counsel of averaging out at K1.00 per kilo is fair.

I also have no specific evidence on life expectancy in a Papua New Guinean context, although I am aware of several tables which generally speaking put the period of life expectancy somewhat lower in Papua New Guinea for a male than say in Australia. As the plaintiff is in his late forties or early fifties, I would think that his working life would probably not be in excess of five years to ten years. As a result of my doubts concerning the plaintiff’s age and the other areas of uncertainty, I think the best I can do is settle on a ten-year period and estimate loss of income from both the coffee trees and the vegetable garden on that basis. However I do not consider that he would work as a labourer on the roads for that ten-year period and, as will appear shortly, I would reduce that period by half in relation to his labouring work on the roads.

I am prepared to accept the evidence of the witness Bruno Garimo when the puts the loss of income from the vegetable gardens at K100.00 per year. Consequently the sum of K1,000 would represent an adequate compensation for this loss.

Mr. Garimo has put the loss from the coffee gardens at K210.00 per year and on the basis of counsel’s figures of an average price of K1.00 per kilo, the figure is a reasonable one. Projected over a period of ten years, I determine a sum of K2,100 for loss of income from this source.

The loss of income from salary presents some special problems. At the time of the accident the plaintiff was employed as a casual labourer by the government, but I have the distinct impression that he did not look upon such work as anything of a permanent nature. Although he had been in steady employment at one stage for many years, this state of affairs was something of the past at the time the accident occurred. I am not at all convinced that he either sought or obtained regular paid employment before the accident. It is therefore difficult to quantify this area with any feeling of precision and I note that submissions by both counsel differ considerably on this aspect. I think the better course is to assume a period of five years but to discount this period heavily to account for non-availability of work and periods of non-inclination. I have settled on a figure of 25% as the discount, and thus arrived at a sum of K1,950 to represent the loss.

There is no real dispute as to out-of-pocket expenses and I therefore have no difficulty in determining that figure at the sum of K500.00.

[His Honour then considered the question of general damages for pain, suffering and loss of amenities and concluded:]

In all the circumstances of this case, I consider a sum of K12,000 would be a proper figure to recompense for pain, suffering and loss of amenities.

I am not convinced this is a case for the application of an arbitrary figure to represent contingencies, as such, in part at least, has already been incorporated in the final figures.

In accordance with my findings of fifty percent contributory negligence on the part of the plaintiff, I therefore award the following damages:

Judgment accordingly.

Solicitor for the plaintiff: D. McDermott, Acting Public Solicitor.

Solicitor for the first and second defendants: R. Woods, Acting State Solicitor.