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Joe by Joe Tavi v The State [1988-89] PNGLR 641 (11 August 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 641 - Auwa Joe by Joe Tavi v The State 

[1988-89] PNGLR 641

N739

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AUWA JOE (BY HER NEXT OF KIN) AND JOE TAVI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Los J

7 August 1989

11 August 1989

DAMAGES - Personal injuries - Particular awards of general damages - Multiple injuries - Fractured ribs and femur - Lacerated face and head - Severed Achilles tendon - Abdominal injuries - Penetrated lung - Multiple bodily scars - Shortened leg - Limp - Female child aged 10 (13 at trial) - Award of K14,500 general damages.

The plaintiff, a female child aged 10 years (13 at trial) was injured when she was knocked down in a hit-and-run motor vehicle accident. The plaintiff suffered multiple major injuries including facial lacerations, fractured ribs with penetrated lung causing left pneumothorax, fractured thigh bone requiring skin traction, cut Achilles tendon and abdominal injuries. The plaintiff has been left with multiple scars to most parts of her body, and with a shortened leg producing a limp.

Held

General damages for pain and suffering and loss of amenities should be assessed at K14,500.

Cases Cited

Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450.

Kundia Paul v Anton Kare [1988] PNGLR 273.

Lus Minjuk v The Independent State of Papua New Guinea [1988] PNGLR 302.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Statement of Claim

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

Counsel

I Shepherd, for the plaintiff.

Cur adv vult

11 August 1989

LOS J: This is an action for damages for personal injuries by the father of a 13-year-old girl injured in a motor vehicle accident. At the time of the accident, she was 10 years old. The father of the child said in evidence before me that he dropped the child near a crossing at Erima on 20 May 1985 for her to go to school at Erima Primary School. He had learned later that the girl was injured in a hit-and-run accident while walking across the crossing to go to school. As the liability was determined by entry of judgment by default on 15 March 1989, there is no need for me to discuss who was at fault.

The child was taken to the hospital and she was hospitalised for a month. I observed in court that she had cuts or scars on the right thigh, scars on right Achilles heel, scar on right hip, scar on the lip underneath the right nostril, scar on the chest, a long scar running from the left side of the belly-button up towards the chest. I also observed that she was limping when walking from the public gallery towards the bench to show the scars. The reason for her limp and the reasons for all the scars I had seen in court were explained in the medical reports by Dr Danomira dated 3 June 1986 and 7 August 1989. And I quote the doctor’s report of 3 June on the injuries.

The injuries as recorded in the admission notes were as follows:

1.       Bleeding nose with multiple facial lacerations.

2.       Fractured 4th and 5th ribs resulting in penetrating injury to the left lung causing left pneumothorax (free air in the left lung and chest cavity).

3.       Fractured left femur (left thigh bone).

4.       Cut right Achilles tendon.

5.       Abdominal injuries.

Counsel for the plaintiff submits that because of the seriousness of the injuries the child received and the loss of the efficient use of the limbs and the shortening of one leg and the scarring and disfigurement all totalling 15 per cent, the plaintiff is entitled to general damages for a figure between K12,000 to K15,000. He submits that the case is comparable to Lus Minjuk v The Independent State of Papua New Guinea [1988] PNGLR 302.

I consider that a child recovers easily and he or she does not remember much. His or her future is not much affected, if not physically, then psychologically. The child in this case has certainly given me an impression that she does not remember much. Apart from the limbs and the numerous scars, there is not much effect left on the child. However, the doctor’s description of the treatment of the child upon admission dispels my impression:

“She was shocked on admission with much loss of blood. There was also a period of loss of consciousness because of head injury. Her treatment consisted of:

1.       Antibiotics and tetanus injections.

2.       Intravenous fluid infusion and blood transfusion to replace the lost blood. She was given a total of 2 bags of whole blood.

3.       The free air in the left chest cavity was drained through an underwater sealed drain.

4.       Because of the distended abdomen a small operation was performed to inspect the internal abdominal organs, which were found to be in good order.

5.       The facial lacerations and the lacerated Achilles tendon of the right ankle were sutured.

6.       Skin traction was applied to keep the fractured left femur straight.”

The child’s left leg is shorter (59 cm) than the right leg (61 cm). This causes her to limp. The father said she walks like jumping up and down.

The doctor’s report says the left thigh is bulkier than the right thigh. She has permanent multiple scars:

Scars:

3 cm scar on nose

3 cm x 2 cm scar on the front of the chest wall where the drain tube was inserted

8 cm scar of the operation wound of the abdomen

5 cm scar at the right heel.

Mr Shepherd provided a list of authorities to assist the Court in assessing the damages. Many of the cases involved adults. Their relevance, I think, would be limited to the shortening of legs or arms. I would prefer to look at the cases involving children. The first one is Kundia Paul v Anton Kare [1988] PNGLR 273. A girl aged two travelling as a passenger was injured when the motor vehicle she was travelling in overturned. She had a fractured skull, lacerations of left arm and face, fracture of radius and ulna of left arm. She had shortening of the left arm, leaving her with a 5 per cent disability of the efficient use of the left elbow and another 5 per cent disability from the injuries received on her face and skull, leaving her with a total disability of 10 per cent. She was awarded K10,000 for general damages.

The second one is Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450. A male child of four-and-a-half was thrown out of the car through the windscreen in an accident. He was badly injured on the head and eye by the broken pieces of glass. He suffered severe scarring, occasional double vision and tiredness in one eye and loss of feeling in the forehead. He had a glass fragment removed from the brain. He was awarded general damages of K12,000.

Where do these cases place the plaintiff in this case? The comparative seriousness of the injuries was vividly described by the doctor in his first report (of 3 June). “This infant was admitted to the Port Moresby General Hospital with almost fatal major injuries.” Just before the hearing, the girl was further examined by Dr Danomira. The doctor said the girl seemed to be happy and well but the long-term effects of injury in certain aspects were still there:

“When seen by me for repeat assessment of her permanent disability AUWA JOE appears well and happy. Clinical examination shows still a shortening of the right leg as measured from the tip of the medial malleolus of the ankle to the anterior superior iliac spine of the pelvis: the right leg measures 71 cm and the left 72 cm. The quadriceps (thigh) muscles now do not show any sign of dysuse atrophy.”

“I am still of the opinion that permanent disability remains as previously reported:

15% (fifteen per cent) loss of the efficient use of the right leg above the knee for the purpose of heavy manual labour because of the shortening of the leg.

Facial scarring or disfigurement to a maximum of 5% (five per cent) only.

Total bodily other than facial scarring or disfigurement to a maximum of 15% (fifteen per cent).”

I think that the injuries in this case are more serious than the injuries in the two cases that I have discussed. But I do not necessarily agree that the amount awarded should be the same as in Lus Minjuk’s case. In that case, there were certain factors that the learned trial judge had taken into account which cannot apply to the 13-year-old girl now. She is still young and one cannot know whether she will have similar difficulties. Apart from the shortening of the left leg, she may not face any of those difficulties. She may grow out of them and forget all of them. In Lus Minjuk’s case, the trial judge found a possibility of development of osteoarthritis if the plaintiff was subjected to heavy work and running. The plaintiff there was in fairly severe pain for some four years. There was a prospect of him feeling dissatisfied when unable to fulfil his role as head of the family. His inability may affect his status in the village. I think the award in the case of the 13-year-old girl should be slightly less. I therefore award a sum of K14,500 for general damages. No special loss was formally claimed. The father said in evidence that he bought a walking stick for the girl when she was in the hospital to help her walk. She also used the walking stick in the village until she did not need it any more but he could not produce any evidence to support the cost of the walking stick. I do not therefore make any award for special loss.

In accordance with Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, I award interest on prejudgment pain and suffering at 8 per cent from the date of service of the writ to the date of trial (16 January 1987 to 11 August 1989). I consider that the pain and suffering was greater when the girl was first injured, taken to the hospital, hospitalised and soon after she was released. I therefore apportion the award for prejudgment pain and suffering at 90 per cent which is K13,050. I award 8 per cent interest on this sum which is K2,697.

I order that there be judgment for the plaintiff in the sum of K17,197 made up as follows:

I also order the costs against the defendant.

Judgment for K17,197

Lawyers for the plaintiff: Joseph K Pakau & Associates.