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Kewe v Kudjip and The State [1986] PNGLR 279 (5 September 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 279 - Make Kewe v Thomas Kudjip and The State 

[1986] PNGLR 279

N560

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MAKE KEWE

V

THOMAS KUDJIP AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Waigani

Woods J

13 June 1986

5 September 1986

DAMAGES - Personal injuries - Particular awards of general damages - Spinal injury - Severe bruising to thoracic and lumbar spine - Nerve root damage - Continuing muscle weakness in leg with loss of sensation Male villager aged eighteen (twenty-three at trial) with minimal education - Award of K20,000 general damages.

DAMAGES - Measure of - Personal injuries - Economic loss - Highland village man - Subsistence gardener - No evidence of loss - Fair and reasonable assessment to be made - Male villager aged eighteen with minimal education - Award of K10,000 for economic loss.

The plaintiff, a male Highland Villager aged eighteen (twenty-three at trial) with minimal education claimed damages for personal injuries suffered as a result of a motor vehicle accident. The principal injuries were severe bruising to the thoracic and lumbar spine with nerve root damage and with residual disabilities arising from a continuing muscle weakness in the leg with loss of sensation and subsequent inability to perform his normal village work and activities.

Held

(1)      General damages for pain and suffering and loss of amenities should be assessed at K20,000.

(2)      In assessing damages for economic loss in respect of inability to perform normal village work and activities, local circumstances should be taken into account and where there is no evidence of specific economic loss but evidence of economic capacity, a fair and reasonable assessment must be made.

Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557 at 564, applied.

(3)      In the circumstances it was fair and reasonable to award K10,000 for economic loss.

Cases Cited

Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Trial

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

Counsel

D O’Connor, for the plaintiff.

L K Karri, for the defendant.

Cur adv vult

5 September 1986

WOODS J: This is an action for damages, for personal injuries received in an accident involving two motor vehicles. The plaintiff was a passenger on a motor vehicle registered number P 5860 which collided with a Government owned motor vehicle registered number ZGC 684 on 18 September 1981. The accident occurred when the vehicles collided on a bridge and the vehicle the plaintiff was on rolled over and he was thrown into a creek with cargo landing on top of him. The plaintiff sustained severe bruising to the thoracic and lumbar region. There appeared to be spinal and nerve root damage which has in the long term affected his back and legs.

The State admitted liability and the matter has come before me as an assessment of damages.

The doctor who saw the plaintiff at the time of the accident and soon after found that the plaintiff appeared to suffer from some form of spinal cord damage which has resulted in profound muscle weakness in the leg and a sensory deficit.

More recently the plaintiff has been seen by three doctors, a Dr Kulunga, a Dr Nelson and Dr Seta who all find some residue of spinal cord injury which will remain permanent although they put different figures on the amount of the disability ranging from 20 per cent to 60 per cent disability. And all doctors confirmed a loss of sensation in the right leg. The doctors also say that a loss of sensation in the right leg could lead to sensory complications, such as difficulty in appreciating pain and injury to the leg.

The claim therefore comes down to one for pain, suffering and loss of amenities and subsequent inability to perform his normal village work and activities. The plaintiff was aged about seventeen or eighteen years at the time of the accident and was a villager with minimal education.

I am satisfied that there is some substantial disability to the leg and back. The plaintiff has never been employed and he has and will be leading a subsistence life in the village which of course requires certain heavy manual work in the gardens and help with his family coffee production and normal village activities. The lawyer for the plaintiff submits that the plaintiff may have got a job in the future but that is too indeterminate and there was no clear evidence that he actually was going to join the outside work force at the time of the accident. In a case of this sort I find that I adopt fully what was said by Miles J in the case of Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557. In that case Miles I states that in his view there is no way in which the court can disregard local circumstances when awarding a figure for economic or pecuniary loss, and further he says (at 562):

“On the calculation of loss of earning capacity it will often be the case that the court will have very little evidence to work upon where the plaintiff is engaged in gardening or hunting with little participation in the cash economy. In the present case, and others on which I have reserved judgment, there is some evidence of a general nature but in addition to acting on that evidence I think it is appropriate to adopt the approach of Mahoney J in Baird v Roberts [1977] 2 NSWLR 389 at 391) which was approved in Kerr’s case ([1979] PNGLR 251 at 251) namely that once a reduction of economic capacity is established, even if there is no evidence as to pre and post accident possible earnings, a trial judge must, in general, assess some compensation in this regard; he cannot ignore the loss.”

I must place some value on the plaintiff’s role and work as a villager. Even though there is little evidence before me except some suggestions of interest in the coffee garden and possible wages that he could have got as a labourer on a plantation I see nothing wrong with finding a figure in the area of K500.00 per year. At one end of the scale there is a labourer’s wage of about K80.00 per fortnight and there is an income from the production of the market garden or coffee of anything from K600 to several thousand a year. With the scarcity of evidence it is very difficult to take the doctor’s percentage of disability and apply it to these figures. However I must allow something. Obviously if he has an interest in coffee, that interest would be held with his family and it will still be there. It is just that he would be unable to do his share of the work. Of course on the other hand being partially disabled he would be unable to obtain a labourer’s job at all. I therefore feel that it is quite fair and reasonable to assess some economic loss in this area of K520 per year. I therefore assess an economic loss from the time of the accident in 1981 to the date of this judgment at the rate of K520 a year.

I assess an income earning life to fifty-five years of age which therefore leaves thirty-two years remaining. I use the compound interest tables at 3 per cent and I refer here to the case Pinzger v Bougainville Copper Ltd ([1985] PNGLR 160 which lays down the discount rate for future loss to be fixed at 3 per cent to reflect notional tax and inflation. I use the 3 per cent tables to assess the present value of K520 a year for thirty-two years at K10,800.00, from this figure I will discount a small margin for the uncertainties of life and I will discount this figure to K10,000.00.

On the matter of pain and suffering I note that the plaintiff spent one month in hospital and following hospital he was on crutches for a while with joints which were still paining, and with pains in the leg and back which made it difficult for him to walk properly. There is no doubt about it the plaintiff does have problems with his back and legs as it appeared when he came into court and it is now five years since the accident. And again I quote the words of Miles J at 565 of the Kaka v Kopun case where he notes that “the injury leaves the plaintiff a young man in the community in which he is unable to do many of the things expected of young men”. Therefore as well as his economic loss of having limited ability to perform a fuller village subsistence or economic role he also would be suffering loss of amenities within the village. I therefore assess a figure of K20,000.00 for pain and suffering and loss of amenities.

The final verdict is:

I order judgment for the plaintiff in the sum of K35,077.00.

Verdict and judgment accordingly

Lawyer for the plaintiff: D O’Connor.

Lawyer for the defendant: State Solicitor.