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Dir v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 433 (7 June 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 433 - Dir v MVIT 

[1991] PNGLR 433

N984

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DIR

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

21 May 1991

7 June 1991

DAMAGES - Personal injuries - Particular awards of general damages - Shoulder and leg injuries - 30 to 60 per cent disability - Widow in early forties - Dependent high school son - Self supporting subsistence gardener - Award of K35,000 general damages - Award of K10,000 for economic loss.

The plaintiff, a female in her middle forties widowed with a high school son and fully occupied with subsistence farming, claimed damages for personal injuries arising out of a motor vehicle accident as a result of which she suffered a fracture dislocation of the left shoulder which healed with some stiffness and about a 30 per cent disability and a comminuted displaced fracture of the distal tibia and fibula requiring surgery and which left a total residual disability of over 60 per cent. The plaintiff was completely unable to continue to earn income for the support of herself and her son.

Held

General damages for pain and suffering and loss of amenities should be assessed at K35,000 with damages for economic loss at K10,000.

Cases Cited

Naringa Mur Kamu v The State (No N 898, unreported).

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

Statement of Claim

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

Counsel

P Kopunye, for the plaintiff.

A Kandakasi, for the defendant.

Cur adv vult

7 June 1991

WOODS J: The plaintiff Cecilia Dir was injured when the motor vehicle she was riding in overturned on 9 August 1989. She is suing the Motor Vehicles Insurance Trust as the insurer of the vehicle involved. The defendant had admitted liability and this case came on for trial as an assessment of damages.

In the accident the plaintiff suffered injuries to her left leg and left shoulder. She was admitted to Kudjip Hospital immediately after the accident and according to the medical report was found to have a laceration to the left forehead, a fracture — dislocation to the left shoulder, a laceration over the posterior left foot and ankle with comminuted, displaced fracture of the distal tibia and fibula. The shoulder injury was treated with open reduction and internal fixation and even then it was noted that she would have limited use of the arm. The leg injuries were treated with traction and then open reduction and internal fixation. The ankle joint was found to be totally disrupted with several pieces of bone in the joint that had to be removed. These injuries to the left leg and ankle were regarded as quite serious and at the time it was forecast that she would be unable to use the leg for some months.

In March 1990, she attended at Mount Hagen Medical Services which reports that whilst the fracture dislocation of her shoulder has healed reasonably well there is some stiffness which will probably be permanent and the estimated loss of use of that shoulder is 30 per cent. The assessment on the leg was that it had not healed well in spite of operative intervention and there would be loss of 60 per cent of effective use of that left leg.

Dr Kulunga examined her this year and gave evidence in court confirming the permanent disability to the shoulder and leg although he estimated a different level of disability. With respect to the shoulder injury he notes a high level of disability. This is through the lack of normal movement which over the period of time has led to fusing together of the joints as there is no joint space. The effect of the fusion of the joints is that the head of the humerus is getting absorbed into the joint. This is leading to almost complete lack of movement in that shoulder. With respect to the leg injuries the doctor’s estimate is similar to the earlier estimate.

However, when giving the overall effect of these disabilities, the doctor agrees that she cannot earn a living as a subsistence garden person in the village but will be totally dependent on others for food and other necessities. However, she has enough movement to be able to get around the house and look after herself.

I therefore have to assess damages for a women who is 100 per cent useless in supporting herself and her son through gardening.

The plaintiff is estimated to be middle-aged which suggests in her early forties. She was divorced from her husband who has since died and she has a son at high school to support. We are not therefore just looking at cases which involve minor injuries to the arm or leg where a useful life and work can still be engaged in, we are looking at a case like Pangis Toea v Motor Vehicles Insurance (PNG) Trust and PNG [1986] PNGLR 294, where an award was made for the total effect of the injuries to the arm and leg similar but not equal to an award for paraplegic cases. In another case involving an elderly village woman, Naringa Mur Kamu v The State (No N 898, unreported), I note that whilst the medical assessment is 40 per cent disability, the effect would appear to be almost total in her ability to participate in a garden subsistence earning.

In the case before me now, the plaintiff has no husband to support her, she has to rely on relatives, and she has a son to support at high school. I feel that I must consider an award in the range of the award in Pangis Toea’s case.

I am satisfied that for general damages a figure of K35,000 similar to the figure in Pangis Toea’s case is appropriate. For economic loss I find difficulty in capitalising a sum per week as it is apparent on the evidence that being garden produce and coffee trees it is seasonal. And I am quite sure she was and would have been able to earn enough at appropriate times to pay the high school fees of over K300 for her son. So I will assess an amount equivalent to K800 per year for fifteen years capitalised. Such a figure would be around K10,000 so I allow a figure of K10,000 for economic loss. I allow interest at 4 per cent on the general damages from the date of the writ to today. I allow interest at 4 per cent on K1,000 of the economic loss from the date of the writ to today.

I order judgment for K45,595.

Judgment for K45,595

Lawyer for the plaintiff: P Kopunye.

Lawyer for the defendant: Young & Williams.