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Matabe v The State and Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 309 (12 October 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 309 - Nali Matabe v The State and MVIT 

[1988] PNGLR 309

N683

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NALI MATABE

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND THE MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Bredmeyer J

5 October 1988

12 October 1988

DAMAGES - Personal injuries - Particular awards of general damages - Shoulder injury - Fractured collarbone - Malunion with bony spur requiring removal - Loss of 15 per cent efficient use of left arm - Market gardener aged 40 - Award of K10,000 general damages.

DAMAGES - Measure of - Personal injuries - Economic loss - Market gardener - Discussion of different methods of assessing future economic loss - Award of K3,000 for future economic loss.

The plaintiff, a market gardener, married with five children and aged 40 at the date of trial, claimed damages for personal injuries suffered as a result of a motor vehicle accident. The principal injury suffered was a fracture of the left clavicle which healed with malunion and required surgical treatment to remove a bony spur. The plaintiff was left with a 15 per cent permanent loss of the efficient use of his left arm above the elbow which seriously restricted his occupation as a subsistence and market gardener.

Held:

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

(2)      In the absence of reliable evidence on the loss of production of the market garden, damages for future economic loss should be assessed at K3,000.

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

Cases Cited

The following cases are cited in the reported judgment:

Aundak Kupil v The Independent State of Papua New Guinea [1983] PNGLR 350.

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

Statement of claim

This was an action for damages for personal injuries. The plaintiff was a passenger in a motor vehicle injured in a collision with another vehicle.

Counsel:

I Shepherd, for the plaintiff.

L Kari, for the first defendant.

G Lay, for the second defendant.

Cur adv vult

12 October 1988

BREDMEYER J.: This is an action for damages arising out of a motor vehicle accident which occurred on 11 October 1985. Liability between the two defendants is in dispute. [His Honour then considered the question of liability in a manner not calling for report apportioning the blame equally between the two defendants.]

PAIN AND SUFFERING

The plaintiff was knocked down unconscious, woke up in hospital, suffering pain over the shoulder and cuts to the face and head as shown in the photos, and pain from those cuts. He was treated as an outpatient, his arm in a sling, his cuts were dressed and there were no stitches. He was given pain killing injections. As it turned out, that treatment was not good because he had a broken collarbone which malunited, one bone overlapped on the other causing a spur.

In January 1986 he went to the hospital for an operation for the removal of that spur and was in hospital for three days and suffered the pain and discomfort of an operation. For his present disabilities I quote from Dr Danomira’s report of 13 June 1986. It is not up to date but, in the absence of a later report, I accept that it is a correct statement of his present disabilities as seen by the doctor.

“Shoulder movements reveal no restriction. There is a 5cm scar over the deformed middle of the left clavicle. Xray confirms a malunited (healing with deformity) fractured left collarbone with the distal fragment looking non-viable with osteoarthritis of the acromio-clavicular joint.

I have estimated permanent disability at 15% loss of efficient use of the left arm above the elbow for the purpose of heavy manual labour because of osteoarthritis of the acromio-clavicular joint.”

I consider that 15 per cent loss of the efficient use of the left arm above the elbow would apply to below the elbow in terms of lifting and labouring jobs; in effect it means a 15 per cent loss of the efficient use of the left arm.

I note the X-ray which is revealing. Sometimes X-rays are not revealing to the layman but this particular X-ray is when I compare it with a normal shoulder as shown in a diagram in Britt’s Comparable Verdicts, Appendix 1. In the X-ray I can clearly see that although the spur has been apparently removed, there is still this malunion of the two bones, one bone on top of the other. And there is a gap in that joint mentioned by the doctor. There is a gap or space between the two bones which should not be there. I have no doubt that it produces pain and discomfort and restriction of movement. The plaintiff said that he cannot do the labouring work which he used to do before. Clearly the X-ray report and the doctor’s report show a real permanent disability. There is pain and discomfort and reduced strength. On the other hand, apparently he takes no pain killers. He has no wastage of any arm muscle. According to Dr Danomira, he has no restriction of movement. He is right handed, this injury is to the left shoulder. I was shown his facial and head scars, and also the malunion, and in my view they are not noticeable or unsightly.

For past and future pain and suffering and disabilities I award K10,000.

ECONOMIC LOSS

I consider that this man’s pre-accident occupation was a market gardener. I use that word in a special sense. He has land at Sogeri where he grows subsistence crops plus cash crops like vegetables for sale. Pre-accident he worked that land by himself, with his wife, five children (although some were very small) and some wantoks. I do not see him as an employed labourer. He was working as an employed labourer one year, five months from 1984 up until May 1985 with Mr Fixit and he was there using a jack hammer. He was working with Mr Fixit on a property being built at Paga Point. But after he left that work he went back to his Sogeri land, and pre-accident, for many years, he had been working on his Sogeri land, so I consider that I should look at his economic loss as a market gardener, not in the Australian sense of a full-time gardener, but as a person who grows vegetables for subsistence and sale. I consider his age as 40 years and clearly with 15 per cent loss of strength in the left arm, his gardening ability is restricted.

I consider that there are three ways of assessing loss to a subsistence farmer. The first way is to assess production before and after the accident and the value of the drop in production of so much a week is multiplied by the anticipated years of his future working life. The 3 per cent discount tables are then used to capitalise this figure, then a reduction is made for the contingencies of life. The second way is when evidence is very hazy and sketchy as to the amounts the plaintiff may have earned from gardening. In those circumstances the judge has to do the best he can to award a global sum for economic loss. I quote from Miles J in Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557 at 564.

“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 398 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.”

The third way is the way which I pioneered in Aundak Kupil v The Independent State of Papua New Guinea [1983] PNGLR 350. The plaintiff in that case grew vegetables plus cash crops and had two wives. He was made a paraplegic and I had evidence of the cost of a replacement labourer. What he lost was his labour and in the Minj Valley where he lived it is very common to hire someone from a poor province to do the labouring work. I had evidence that the going rate for one of these workers was about K10 a week. A labourer can be hired to do all the work that the injured plaintiff used to do and the labourer is also given a piece of land for his own subsistence crops. I believe all over Papua New Guinea, Nationals employ labourers from poorer provinces to help with their agricultural work and they employ them at much cheaper rates than the award rates for plantation labourers. In this third method there is usually no loss of production. The man’s household, including any paid labourer, produces the same as before the accident. A variation of that third method is where the injured plaintiff does not get a hired labourer to help, but gets a wantok or relation from his home village to come and help. The helper works on the land for the household and in turn receives food and pocket money now and then. Usually not a regular sum per week or fortnight but an occasional K5, K10 or K20 from the sale of cash crops, and he gets help with traditional obligations, for example, a pig for a bride price payment, or help in paying a court fine.

In this case I strongly suspect that by use of wantoks the production of the plaintiff on his Sogeri property has not diminished since the accident. However, I have not got evidence on that. Mr Shepherd argued the case on the first basis that there was a loss in production of so much a week, that his land was now rented out to others, and that they gave him some money which was much less than what he used to get from the sale of vegetables before. I do not believe the plaintiff on that. I think his evidence on figures was far too vague; it lacked credible details for me to believe that his production had dropped and had dropped in the figures which were given. I consider that his family is still there, he is still there, and they are working the land with the help of wantoks. So I consider in this case the best I can do is to give this man a global sum for his economic loss. On that basis I award K3,000 for economic loss.

INTEREST

I apportion the pain and suffering K8,000 to the past and K2,000 to the future. I award interest on the past pain and suffering at 8 per cent from the date of the issue of the writ, 16 January 1987, to now. That is K8,000 x 8% x 1 year 9 months = K1,120. I apportion the economic loss K500 to the past and K2,500 to the future. I award interest at 4% on the past loss from the date of the accident to now. That is K500 x 4% x 3 years = K60.

SUMMARY

The total award to the plaintiff is:

to be paid by the defendants in equal shares. The plaintiff’s costs are also to be paid by the defendants in equal shares.

Verdict and judgment accordingly

Lawyer for the plaintiff: Joseph K Pakau & Associates.

Lawyer for the first respondent: Pomat Paliau, Acting State Solicitor.

Lawyer for the second defendant: Young & Williams.