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Pose (by her next friend Gregory Pose) v Independent State of Papua New Guinea [1981] PNGLR 556 (28 July 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 556 - Anna Pose by her next friend Gregory Pose v The Independent State of Papua New Guinea 

[1981] PNGLR 556

U9

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANNA POSE

BY HER NEXT FRIEND

GREGORY POSE

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Pratt J

14 April 1981

28 July 1981

DAMAGES - Personal injuries - Particular awards of general damages - Head injury - Hemiplegia - Good recovery - Leg and arm disability - Female child aged 2 (7 at trial) - Award of K9,000 general damages.

The plaintiff a female child aged 2 (7 at trial) who was involved in an explosion aboard a boat suffered a fractured skull causing brain damage resulting in right sided hemiplegia from which she had at the date of trial recovered to the extent that any permanent disability would be reduced to minor loss of function of the right leg and arm.

Held

General damages should be assessed at K9,000.

Trial

This was an action in which the plaintiff by her next friend claimed damages for personal injuries arising out of an explosion on board a boat.

Counsel

W. Neill and J. Yagi, for the plaintiff.

R. Gunson, for the defendant.

Cur. adv. vult.

28 July 1981

PRATT J:  [His Honour dealt with the evidence on assessment of damages which is summarized as follows:

In September 1976 the plaintiff a female child aged approximately two years suffered personal injuries as a result of an explosion on board a vessel travelling between Madang and Wewak. As a result of the explosion the plaintiff received bruising to the face and scalp and a fracture to the right frontal area of the skull causing brain damage resulting in right sided hemiplegia.

At the time of trial the plaintiff had made an excellent recovery but was left with a speech defect, and a twenty to twenty-five percent loss of the full function of both right arm and right leg which on the evidence with the proper physiotherapy treatment could bring the use of the arm up to full function and the use of the leg to ninety percent of full function.

His Honour continued:]

This brings me then to the much more difficult area of attempting to set a figure on pain and suffering and loss of amenities together with loss of function in the arm and leg. From the evidence I think I must settle for a ten percent loss of the use of the right leg. I do not think it would be realistic to make an allowance for brain damage as well as loss of function of the limbs as it is clear on the evidence that such loss of function is in fact due to damage to a section of the brain. Likewise the speech impediment stems directly from brain damage. So it seems to me that there can be no dual award, one to cover loss of function of those parts of the body which have been affected by brain damage and another for brain damage itself. Of course an allowance must be made for the pain and suffering occasioned to the plaintiff as a result of the fracture of the skull but in the case of a two-year-old infant, I do not think that any real allowance can be made under such head in the present circumstances.

Of course I must bear in mind that even though the physiotherapist seems to indicate that the arm should return to its full function, she had not fully completed her examination. Dr. Suebu does say that there is a loss of reflex action which cannot be repaired. In the upshot I will proceed on the basis that there will be some residual disability in the arm, even after physiotherapy treatment, and that there will be a ten percent loss in the use of the leg. I agree with counsel for the defence however that the plaintiff is not entitled to have two bites of the cherry and cannot therefore claim both for loss of function and for brain damage.

Bearing in mind these matters and the matters which I referred to a little earlier, I propose to order an award of K9,000 as general damages for both past and future loss of function, loss of amenities and pain and suffering, discomfort and inconvenience. As no claim has been made for interest and no submissions put forward on that aspect by either counsel, I shall not make any order save in respect of the out of pocket expenses of the next friend being 6.5% per annum on K135 for four and a half years from 1st January, 1977 to that of judgment.

The order of the court therefore is:

That the defendant do pay to the plaintiff the sum of K11,876 in the following manner:

(1)      as to the sum of K176.00 forthwith to the next friend of the plaintiff;

(2)      as to the sum of K2,700 to cover medical, transport and accommodation, costs relating to the medical treatment of the plaintiff at Port Moresby to the Secretary for Finance and that the said Secretary for Finance invest this sum in a savings bank trust account. All advances against this sum may be released from time to time on the request of the Public Solicitor;

(3)      as to the sum of K9,000 to be paid to the Registrar of the National Court to be invested by him for and on behalf of the plaintiff until she attains the age of twenty-one years which shall be deemed to occur on 14th November, 1995, together with such amounts, if any, as may remain unpaid from the account opened by the Secretary for Finance under the provisions of clause (2) of this order.

Judgment accordingly

Solicitor for the plaintiff: A. Amet, Public Solicitor.

Solicitor for the defendant: B. Emos, Acting State Solicitor.