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Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611 (20 January 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 611 - John Atkinson Jones v MVIT 

[1988-89] PNGLR 611

N688

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JONES

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Hinchliffe J

7-8 March 1988

20 January 1989

DAMAGES - Personal injuries - Particular awards of general damages - Hip, knee and facial injuries - Hip replacement - Knee arthrodesis - Perforating injury to eye - Extensive damage to teeth requiring total extraction - Continuing pain - Shortened stiff leg - Severely physically restricted - Poor vision - Poor self-esteem - Desertion by de facto wife and children - Unemployable - Former foreman/construction worker - Male aged 45 (56 at trial) - Award of K33,000 general damages - Award of K60,000 for loss of income.

The plaintiff, a male aged 45 (56 at trial) and formerly employed in foreman-type roles on construction sites, but not employed at the date of injury, claimed damages for personal injuries arising out of a motor vehicle accident. The plaintiff suffered injuries to his left hip requiring replacement of the hip; lacerations to his face and tongue with extensive damage to his teeth requiring total extraction; a penetrating injury to one eye; compound comminuted fracture to the left patella eventually requiring arthrodesis of the knee; and lacerative injuries resulting in a tropical ulcer which took many months to heal. As a result of the injuries and the traumas and consequences of various operative procedures, the plaintiff was left severely restricted in movement, unable to participate in sports and dancing activities, unable to walk long distances, unable to stand without swelling of one leg, unable to crouch, squat or retrieve objects from the floor: he was unemployable, had lost self-esteem and his de facto wife and children had left him in consequence of his physical state.

Held

(1)      General damages for pain and suffering and loss of amenities should be assessed at K33,000.

(2)      Taking into account the retirement age for the public service at 55 years, damages for loss of income should be assessed on the basis of employment for five years at a net annual wage of K12,000, that is, K60,000.

Cases Cited

Kiak v Tora Enterprises Pty Ltd and The Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 265.

Motor Vehicles Insurance (PNG) Trust v Reading [1988-89] PNGLR 608.

Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Writ of Summons

This was an action in which the plaintiff sought to recover damages for personal injuries suffered as a result of a collision between two motor vehicles.

Counsel

P Bolam, for the plaintiff.

R Thompson, for the defendant.

Cur adv vult

20 January 1989

HINCHLIFFE J: I apologise for the delay in delivering this judgment but I have been waiting for the Supreme Court decision in Motor Vehicles Insurance (PNG) Trust v Reading [1988-89] PNGLR 608, which is relevant to this case. That decision has now been handed down.

In this matter the plaintiff seeks damages for injuries he received in a motor vehicle accident on 4 June 1979. Even though the statement of claim indicates that the accident occurred on 4 May 1979, I am satisfied on the evidence that the accident did occur on 4 June 1979.

Liability was admitted by the defendant at the commencement of the trial and therefore my task is to assess damages.

There is no doubt that the plaintiff suffered severe injuries and that permanent disabilities have occurred.

Initial assessment of the plaintiff at the Arawa General Hospital in the North Solomons Province revealed the following:

1.       He was severely shocked with no peripheral pulses palpable. He had lost a considerable amount of blood from multiple facial lacerations and lacerations to the tongue.

2.       He had a posterior dislocation of the left hip.

3.       He had a compound comminuted fracture of the left patella.

4.       He had a penetrating injury of the left eye, involving the nasal aspect of the sclera and conjunctiva.

On 25 April 1980, Hamish McA Foster, surgeon, examined the patient and said in a subsequent report dated 22 May 1980:

“He has considerable disability persisting from the accident of June 4, 1979.

(1)      In particular he has almost complete fusion of the left knee. The knee is fixed at an angle of about 90 degrees with only minimal flexion and extension of the knee present. There is considerable wasting of all the thigh muscles on the left.

(2)      There is moderately reduced mobility of the left hip.

(3)      The scleral wound of the left eye is well healed. The left visual field is grossly intact.

(4)      The patient’s facial and tongue location [sic] have healed satisfactorily.”

The plaintiff stayed in Arawa up until early 1981 when he travelled to Australia for further treatment which was necessary.

An orthopaedic surgeon, Dr W R Parker, said in a report dated 8 December 1982, as follows:

“I first saw this man on the 22/4/81 ... When I saw him it was mainly for treatment of his left leg. He had a fixed flexion deformity of approximately 90 degrees in his left knee, an ulcer on his left lower leg and x-ray showed he had avascular necrosis of his femoral head. His ulcer was treated and then healed.

On 9/9/81, an arthrodesis was performed on his left knee to get the leg as straight as reasonably possible ... On the 7/6/82 a left total hip replacement was done. I last saw him on the 27/7/82. His hip was satisfactory but the knee of course, was completely stiff.

As far as his left leg is concerned, he obviously has a very considerable disability. He has lost all movement in the knee. The operation of the left total hip replacement is one in which initial results are good ... but there is a possibility that loosening will occur and further hip operations may be necessary in the future ... I would put the loss of function of his left lower limb as something in the order of 80%.”

In fact, the plaintiff did undergo a further hip replacement in August 1985. He is a big man and Dr Parker certainly did see the second hip replacement as a distinct possibility.

On 4 March 1988, the plaintiff was examined by Sister Joseph, Senior Lecturer in Surgery at the University of Papua New Guinea. In her report, of 6 March 1988, she said:

“His current problems were a painful left hip, a stiff left knee and residual light haziness of vision in left eye. There was notable increase in the girth of the left calf ... indicating deep venous and lymphatic problems. He walked with a bad trendelenburg gait partly due to the shortening of his leg and partly due to loss of his left hip abductors ... The knee was totally fixed in a flexion position of 25 degrees ... He had a 4 and a half centimetre raise on his shoe although the deficit with the pelvis straight from heel to floor was 8 centimetres. Other findings ... a scar on his left medial eye which had normal pupil movements and through which he was able to read small print in the newspaper ... back movements were poor, limited in all directions and painful at the extremes of movement. On examination of the tongue there was a full range of movements ... His speech was not noticeably affected ... he now has gross and severe shortening of his left leg, a severely incapacitated left hip, a fixed flexion of his left knee and a deteriorating back. He says that he gets pain when he stands for more than 10 minutes, his walking distance is severely limited and that with a stick, and he gets pain on long sitting ... He therefore ... cannot adopt a comfortable position in which to rest for any prolonged period of time nor can he stand at ease. Given his age and disabilities he is in a position where he cannot comfortably recreate himself. He has obviously suffered considerable physical pain and discomfort as well as mental upset from his severely curtailed living, and in the future will have to face problems with increasing arthritic change in his other normal joints as these take the strain upon his badly affected side.”

I also note that some time prior to Dr Parker performing the said operation in September 1981 the plaintiff had all his teeth removed under general anaesthetic. The extractions were necessary due to the severe damage caused to them in the accident. The plaintiff said that he had dentures made and that it took him “months to eat properly again”.

During the course of the trial I inspected the plaintiff’s scars and I recorded the following in my note-book:

“Obvious scars of ulceration. Scars on knee and thigh. Scars on neck and chin which have healed very well.”

In summary, the plaintiff after the accident was taken to the Arawa Hospital where he was treated initially for his injuries. About 20 months later he went to Australia and has spent the intervening years having operations of various kinds including a left knee arthrodesis and two left total hip replacement operations. His injuries at the time were to his left knee, his left hip, extensive damage to his teeth, lacerations to the tongue, a perforating injury to his left eye and injury to his lower left leg resulting in a tropical ulcer which took months to heal.

The plaintiff is now 56 years of age. He was 45 years old at the time he received the injuries. He is a big man who was in reasonably good health back in 1979 prior to the accident, although about 12 months before, he had been hospitalised with meningitis. It seems that he was a fairly heavy drinker and smoker and had suffered ulcerations in the past. He developed a fear of heights after the bout of meningitis.

Needless to say, the accident and subsequent injuries changed this man’s whole life. I am satisfied that, since 4 June 1979, the plaintiff has suffered continual pain. Naturally it was more severe in the beginning but the pain continued with some severity up until the second hip replacement in 1985. Over the last three years the pain has decreased but it is still there to a lesser degree. That pain will probably be with him for the rest of his life.

Not only have his de facto wife and two children left him since the accident but the plaintiff is severely restricted. No longer can he participate in sports or go dancing. He is now unemployable and the simplest of tasks can be a problem for him, although he seems to be able to look after himself if he takes things slowly. His shortened leg makes it painful to walk bare footed and he now avoids lifting. He can only walk for a short time and that is always with a walking stick. Prolonged standing causes pain.

He has only driven a car on one short occasion since the accident and his confidence and capability have become diminished. The plaintiff now has poor self-esteem. He is unable to squat or crouch and is unable to bend sufficiently to retrieve items bilaterally from the floor. Prolonged standing also causes his left leg to swell, necessitating elevation. He also feels that his speech has become a little slurred.

It should not be forgotten that the plaintiff between 1979 and 1985 was hospitalised on a number of occasions due to various operations and that, in itself, can be a very traumatic experience.

Ms Thompson, who appeared for the defendant, submitted that I should take into account when assessing damages the fact that the plaintiff did not “help himself” when it came to regaining his health. She submitted that he should have:

(1)      undergone physiotherapy when advised to do so;

(2)      curtailed his drinking habits;

(3)      reduced his weight.

Although I am inclined to the view that a patient must obey doctors’ orders and generally try to assist in any way he can in the fight to regain good health, I am of the view that in this case there is no strong evidence to suggest that he prolonged his bad health. There is a suggestion of it but it was not followed up. There may be instances where damages might be reduced if the plaintiff does not “help himself”, but in this instance I do not propose to make such a reduction.

Therefore I must now turn to quantum of damages.

In Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294, the plaintiff was in her mid-forties and involved in a motor vehicle accident. She received fractures to the left arm and left humerus, a compound fracture of the left wrist, a fracture of the left femur and a fracture dislocation of the left hip. She was hospitalised for six months. The resulting permanent disability included a totally useless and wasted left arm with a claw hand and a 70 per cent loss of the efficient use of her left leg. There was also possible future osteoarthritis. Her marriage broke up. Los J awarded K35,000 for pain, suffering and loss of amenities.

Quite frankly, I am of the view that the present injuries are not as severe as those mentioned above although I am of the view that Mr Jones has suffered pain over a longer period and also he suffered injuries to his face, eye, teeth and tongue. Needless to say, I am satisfied that the figure I come to for pain, suffering and loss of amenities should be something less than K35,000.

In Kiak v Tora Enterprises Pty Ltd and The Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 265, the plaintiff was injured in a motor vehicle mishap. He suffered a severe compound fracture to the lower third of the left fibula and tibia involving substantial skin loss with damage to the muscles, arteries and veins. He underwent eight operations but suffered a permanent disability of about 50 per cent in relation to the left leg with severe scarring and a prognosis for arthritis and arthrodesis of the ankle joint; he was required to wear a built-up shoe and caliper and walked with a stick and a limp. McDermott AJ awarded K29,000 general damages.

I fully agree with the award of damages in both of the above cases which are quite recent. Although both the lawyers put other cases to me, I am of the view that the above cases are the most useful guidelines of them all.

The present case involves more severe injuries than the second case mentioned above although they do have certain similarities. Mr Jones has also suffered more severe pain over a longer period and I am therefore of the view that his general damages must be in excess of K29,000. It would seem to me that a fair figure for pain, suffering and loss of amenities would be K33,000.

PAST LOSS OF INCOME

The plaintiff has not worked since the accident and it is clear on the evidence that he is now unemployable and will not work again. He was born on 30 October 1933 and he therefore turned 55 years of age on 30 October 1988. In Papua New Guinea, the Public Service retiring age is 55 years and I am of the view that that is the appropriate age to work on when assessing past and future loss of income. Therefore, as far as this matter is concerned, I am only concerned about past loss of income as future loss of income becomes irrelevant.

In round figures, the plaintiff did not work for nine years and five months. From 1954 to 1977, he was employed in the Public Service. At first he worked with Government Stores and then he went across to Public Works where he was a chairman to a surveyor. After that he went to Roads and Bridges and Public Works and he was involved in road construction and airfield work. At one time he underwent an explosives course. After being an overseer for about ten years, he became a foreman. In fact, he was a foreman for about half of the time he served in the Public Service. When he resigned in 1977 he was earning approximately K10,000 per annum. He had several other similar-type jobs after leaving the Government but then, about a year or so prior to the accident, he developed meningitis. After leaving hospital, he returned to and worked on the family “block”. He swore on oath that shortly before he was injured he was offered and indeed he accepted employment with H & C M McArthur Pty Ltd, supervising road construction. It seems that the accident prevented him from commencing work in that job. He could not say how long the job was for but did give the impression that it was an open-ended term. I am of the view that the plaintiff should have been far more specific about the terms and conditions of his employment although I do accept that he was about to commence work with the said company.

To assess the loss of income in relation to the plaintiff is not a simple task. He was not working at the time he was injured. Since 1977 he had worked at several jobs for a short time and the rest of the time, apart from some hospitalisation, was spent working on his de facto wife’s family “block”. That is, he was involved in agriculture. I am satisfied that the plaintiff had reached the stage in 1977 that he was no longer going to work full time for wages. His history between 1977 to 1979 indicates just that. He also, it seems, was drinking and smoking to some excess and, as stated, he suffered a bout of meningitis, which left him with a fear of heights. That, of course, would be a drawback in foreman-type work on construction sites and he may well have found it somewhat difficult to find suitable work in his field. I also note his growing fondness for agriculture and I suspect that that is where he would have ended up if it had not been for his most unfortunate injuries.

Mr Bolam, who appeared for the plaintiff, handed up a schedule of salaries relating to the Department of Public Works and also to H & C M McArthur Pty Ltd. It has served as a useful guideline to me and I am of the view that, as the plaintiff was not working at the time, I can only work on approximate figures when assessing loss of income. Further complications arise in that I am not aware of the length of his employment with H & C M McArthur Pty Ltd.

Therefore I have come to the conclusion that if the plaintiff had been working full time between 1979 and 1988, his net annual wage would have averaged out at approximately K12,000 per annum.

But it seems to me that he would not have worked all of that time and that he would have worked, in all, about five years. As I have no figures in relation to income from the family “block”, I am unable to make any assessment on that.

The plaintiff indicated in his sworn evidence that he had been receiving a pension of $A130 per week for a period of three years. Therefore it is appropriate to deduct the pension payments, up until the time he turned 55, from the award for loss of income. Hence $A23,660 (being three years and six months at $A130 per week) is to be deducted from K60,000. Converted at today’s rate, $A23,660 is equivalent to K16,948.42.

Assessment for loss of income is K43,051.58.

FUTURE DOMESTIC CARE

I am satisfied that there is no evidence to suggest that the plaintiff will need future domestic care. Indeed, the plaintiff stated that he looked forward to getting a place of his own to live in. Naturally it will be difficult for him as was referred to in the report of Ira T Smith & Associates Pty Ltd of 4 March 1986, but that would have to be expected. I am satisfied that he can care for himself.

FUTURE MEDICAL EXPENSES

The claim for K2,050 is reasonable and I propose to allow it.

SPECIAL DAMAGES

I agree with Ms Thompson in some of her submissions regarding the schedule of special damages.

I find that the rental to the Anglican Rectory at Arawa is excessive in that I am of the view that the plaintiff did not need to stay there as long as he did. Initially it was necessary to stop there but eventually he should have returned to his own home or gone to Australia for further treatment. I allow K2,000.

I do not allow anything for the house repairs. The repairs were done when the owner was in the process of selling the house and I have strong suspicions about the claim and I am not satisfied that it has been proved.

Further I reduce the penthouse claim to $A1,000 as I feel that some cheaper accommodation could have been acquired for the period.

As I understand it, the Qantas claim of $A21.73 is not being pursued.

Therefore special damages involving Australian dollars amount to $18,667.31 and when converted into kina are K13,371.99.

Special damages involving kina amount to K5,187.50.

Total of special damages is K18,559.49.

INTEREST

Counsel addressed me at some length in relation to interest. But since then the Supreme Court of Justice has handed down its decision in Motor Vehicles Insurance (PNG) Trust v Reading [1988-89] PNGLR 608, and in the light of that decision, the plaintiff’s argument must succeed.

I am also of the view that a figure of K20,000 is appropriate when calculating the interest on pre-judgment pain and suffering. In accordance with Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, interest will be awarded at the rate of 8 per cent from the date of service of the writ to the date of trial.

In relation to special damages (including past loss of income), interest will be awarded at the rate of 4 per cent from the date of the accident to the date of trial.

Therefore I order that there be judgment for the plaintiff in the sum of K96,661.07 plus interest of K26,097.18 made up as follows:

I order the defendant to pay the plaintiffs taxed costs.

Judgment accordingly.

Judgment for $96,661.07 plus interest

Lawyers for the plaintiff: Blake Dawson & Waldron.

Lawyers for the defendant: Young & Williams.