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Paul, (an infant by her next friend Dan Paul) v Kare and The Independent State of Papua New Guinea [1988-89] PNGLR 273 (5 April 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 273 - Kundia Paul an infant by her next friend Dan Paul v Anton Kare and The Independent State of Papua New Guinea

[1988] PNGLR 273

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KUNDIA PAUL AN INFANT BY HER NEXT FRIEND DAN PAUL

V

ANTON KARE AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Hinchliffe J

14 September 1987

19 September 1987

5 April 1988

DAMAGES - Personal injuries - Particular awards of general damages - Head and arm injuries - Fractured skull - Fractured left radius and ulnar - Permanent shortening of arm - Female child aged two (four at trial) - Award of K10,000 general damages.

The plaintiff, a female child aged two years (four years at date of trial) claimed damages for personal injuries suffered as a result of the motor vehicle in which she was travelling as a passenger overturning. The plaintiff suffered head and arm injuries including a fractured skull and fractures of the left radius and ulnar with lacerations. She is left with a residual disability in the left arm involving shortening of the arm.

Held

Damages for pain and suffering and loss of amenities should be assessed at K10,000.

Trial

This was an action in which the plaintiff, by her next friend, sought to recover damages for personal injuries suffered in a motor vehicle accident.

Counsel

D L O’Connor, for the plaintiff.

D Lambu, for the defendants.

Cur adv vult

5 April 1988

HINCHLIFFE J:  On 3 February 1985, the plaintiff was injured when the motor vehicle in which she was travelling as a passenger, overturned between Kerowagi and Korongil Bridge on the Highlands Highway. The first defendant was driving the said motor vehicle, which was owned by the second defendant. At the time of the accident the plaintiff was about two years old. Liability is not in dispute and the matter comes before this Court for assessment of damages.

Mr Dan Paul, the father of the plaintiff, gave evidence and stated, inter alia:

“At the time the vehicle overturned I saw the small girl, Kundia, in the middle of the road. The ambulance took us to Kerowagi Hospital and after about half an hour we went to Kundiawa Hospital ... at Kundiawa I saw she had a broken left arm and a cut at the back of the head and on the left rib side ... she was in the hospital for about six weeks.”

When asked the question: “Since she left the hospital what have you noticed,” he replied: “From the time of the accident until now, about midnight, she wakes up and shouts or cries.” The witness went on to say that that only happens “sometimes” and that there was nothing else about his daughter that causes him any concern.

During the hearing of this matter I looked at the plaintiff’s injuries and I observed the following:

1.       Scar to the top of her forehead.

2.       Scars to the left side of the head and arms.

3.       Scars to the left side of the torso.

Two medical reports were tendered. Dr John McKup, Acting Medical Superintendent at the Kundiawa Hospital, saw the plaintiff on 23 August 1985. He said, inter alia:

“When seen today the child appeared to be in good health.

The parents complained that she was said to be irritable and cries a lot at times. She becomes easily upset at times.

Examination of this child revealed a fractured skull with extensive callus and deformity over her scalp.

Scar tissue over her face. Arms left old supracondylar with remoulding. Also restriction to extension of left elbow.

I think this child has a degree of mental retardation which needs further assessment by a pediatrician.

Her other deformity accounts for a 5 per cent disability of efficient use of left elbow and 5 per cent cosmetic disability for her face and skull.

A mental assessment will be made by a pediatrician on his next visit to Kundiawa.”

Dr McKup, on 1 October 1985, added the following to the said report:

“Kundia had sustained the following injuries - fractured base of skull, lacerations to both arms, laceration to face. Left supracondylar fracture, fractured radius and ulnar of left forearm.

Treatment

She was covered with antibiotics and laceration cleansed and ‘dressed’.

Her fractures reduced and POP applied.

She recovered and up till now has the above residual deficits.”

It does not seem that the matter of mental retardation was taken any further as there certainly was no evidence of it produced in Court.

On 15 July 1987, Dr Allan Kulunga of the Kintip Surgery, Mt Hagen, saw the plaintiff and prepared a report. He said, inter alia:

“... the father claims ... that she sometimes acts abnormally.

On clinical evaluation I note the following:

(a)      Child looks in normal health and intellectually.

(b)      The left upper arm is two centimetres shorter than the right upper arm.

(c)      ...

(d)      There is a four centimetre forehead scar and a left occiputal one centimetre scar well covered by hair.

(e)      ...

X-rays taken today show the following:

(a)      There is posteriorly displacement of the medical epicondyle epiphysis. This is the growing end of the bone and which has accounted for the shortening of the left upper arm.

(b)      ...

This child apart from sufferings of the trauma will develop a shorter left arm and is also likely to develop a medical valgus from normal growth of the lateral epicondyle epiphysis.”

There is no doubt that the plaintiff suffered quite severe injuries due to the accident. Indeed she was hospitalised for six weeks. She seems to have recovered quite well except for an obvious forehead scar and the fact that she will grow to adulthood with her left arm shorter than the right. It also seems likely that some deformity will develop in the left arm. It is clear that in the future she will not have full use of her left arm and I suspect that it will cause her some embarrassment.

Counsel have referred me to a number of past cases but unfortunately none really cover the present one. I have read those cases and as is the situation in all these types of matters, they are a useful guideline.

Mr O’Connor has submitted that K20,000 would be a proper figure for general damages, whereas Mr Lambu has suggested a figure somewhere between K5,000 and K9,000.

After considering the evidence and past cases I am of the view that a fair and proper sum is K10,000.

I order that there be judgment for the plaintiff against the second defendant in the sum of K10,866.00 made up as follows:

I further order that the second defendant pay the plaintiff’s costs on the National Court scale as agreed upon or taxed and it is ordered that the said sum of K10,866 be paid into court to be invested by the Registrar on behalf of the plaintiff and not paid out in whole or in part without the order of a judge of the National Court until the plaintiff reaches the age of 18 years deemed to occur on the 31 December 2001.

Judgment accordingly

Lawyer for the plaintiff: D L O’Connor.

Lawyer for the defendant: State Solicitor.