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Tinpul v Yere [1998] PNGLR 582 (24 October 1996)

[1998] PNGLR 582

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ROM TINPUL

V

MOSES YERE; AND
MT. HAGEN GOLF CLUB

MOUNT HAGEN: INJIA J
11 June, 12 August, 4, 9 September, 24 October, 1996

Facts

The plaintiff, a junior golfer with the second defendant ("the Club") was also engaged by the Club in grooming and dressing the greens. In one of the dressing runs, the plaintiff who was seated on the trailer hooked to a tractor driven by the first defendant got involved in an accident. The tractor overturned and the trailer came off and collapsed on the plaintiff’s right leg causing crush injury to the plaintiff’s right leg which resulted in loss of severe soft tissue and loss of the upper end of the tibia bone.

Held

1. In assessing damages the following factors were taken into consideration: the crushing nature of the injury, the pain and suffering and discomfort he has gone through over the last six years during the period of hospitalization, the loss of amenities of his young life, the future pain, suffering and discomfort as a result of amputation to one leg. It is inevitable with one leg there is no doubt it will restrict his mobility and reduce his ability to engage in other useful activities. Kaka Kopun v The State [1980] PNGLR 557 applied, Richard Mandui v CIS Commissioner [1996] PNGLR 187 and Barry Maurice Staup v MVIT N179 (1979) followed, and Kunump v The State, N901 (1990) distinguished.
   
2. Under the circumstances, a fair compensation would be K40,000 for general damages and K18,500 global sum for past and future economic loss.
   
3. Interest on pre-trial general damages and economic loss should run from the date of the accident at 4%. Caedmon Koeba v The State [1984] PNGLR 365 followed.
   

Papua New Guinea cases cited

Barry Maurice Staup v MVIT (1979) Unreported N179.

Caedmon Koeba v The State [1984] PNGLR 365.

Kaka Kopun v The State [1980] PNGLR 557.

Richard Mandui v CIS Commissioner [1996] PNGLR 187.

Counsels

P Kunai, for the plaintiff.
J R Steel, for the second defendant.

24 October 1996

INJIA J. This is a trial on assessment of damages following entry of default judgment against the first defendant and admission of liability by the second defendant.

On 26 August 1988, the plaintiff was a junior golfer with the second defendant ("the Club"). He was also engaged by the club in grooming and dressing the greens. In one of the dressing runs, he was seated on a trailer hooked to a tractor driven by the first defendant. In the course of dressing the 6th hole, the tractor was involved in an accident and over-turned. The tractor’s trailer came loose and collapsed on the plaintiff’s right leg. The plaintiff sustained a crush injury to his right leg with severe soft tissue loss and bone loss of the upper end of the tibia. The plaintiff was taken to Mount Hagen Hospital where he was admitted and treated and discharged on 6 December 1989.

The nature and extent of the injury, the initial and further follow up treatment given and medical review conducted and the extent of permanent disability are set out in several medical reports by Dr. Ollapallil dated 8/6/89, 8/12/89, 21/3/90, 3/9/90, 11/1/94 and 28/9/95 which are annexed to his affidavit. I need not repeat the evidence. Dr. Ollapallil is the Senior Surgeon at Mount Hagen General Hospital. As at 3/9/90, he assessed the Plaintiff’s permanent disability at 100% loss of use of the right leg but qualified that assessment by saying "unless he is prepared to undergo through another series of operation and long hospital stay". On 11 January 1994, Dr. Ollapallil reduced that percentage disability down to 60%. On 28 September 1995, Dr. Ollapallil found that the bone had not united and the plaintiff has had to use crutches all the time. Hence, he recommended "the best option for him was to have the above knee amputation and false leg (prosthesis)".

At the time of trial, Dr. Ollapallil gave further oral evidence. He maintained his earlier opinion that the right leg was useless and should be amputated above the knee and fitted with artificial leg. This would then enable the plaintiff to walk properly without the support of crutches (but not 100%), do some light work, do gardening and so on. At present, he could not do these things because he could not stand up and walk around without crutches. He said the plaintiff and his relatives had not agreed to amputation and once they agree, amputation is inevitable.

The plaintiff in his evidence said he had agreed to amputation but his family didn’t agree because they think he would be totally crippled. Another reason was that they want the second defendant to pay compensation first before they amputate his leg.

Both parties proceeded to make submissions before me on the basis that amputation of his leg is inevitable. I also proceed to assess damages on that basis.

General damages

In assessing general damages I have had regard to awards of damages in several cases involving amputated leg. I refer to my own decision in Richard Mandui v CIS Commissioner [1996] PNGLR 187 where I referred to an earlier case of Barry Maurice Staup v MVIT N179 (1979). In that case, I awarded K40,000.00 for general damages. Mr Kunai refers me to two other cases, one of which is Korroly v MVIT N901 but I have checked the case citation for that number which is Kunump v The State which is a different case. Mr Steel has referred me to a number of other cases, which concern only particular disability of the leg but no amputation.

Mr Steel submits that a reasonable award under this category of damages is in the vicinity of K40,000.00. Mr Kunai submits a reasonable amount would be K30,000.00.

In assessing general damages, I take into account the crushing nature of the injury, the pain and suffering and discomfort which he has gone through over the last 6 years or so during the period of hospitalisation. I also take into account the loss of amenities of his young life and the future prospect of pain, suffering and discomfort as a result of amputation which is inevitable. With one leg gone, it will no doubt restrict his mobility and reduce his ability to engage in other useful activities, as he would like to as a young man. I would agree with Mr Steel that a fair compensation would be K40,000.00 and I award the same.

Past and future economic loss

The plaintiff was a Grade 5 student when he sustained the injury. As a result, he discontinued school. However, there is no evidence to show how he fared in school and what chances he had of further education at secondary and tertiary level.

There is also no evidence as to his earning capacity as a person engaged by the Golf Club to dress the greens, etc.

He is and will continue to be a village boy engaged in subsistence farming to support himself.

During the period of incapacity, he has been involved in feeding his brother’s chicken and other small jobs around the home. He is likely to continue in similar activities after amputation. He may also be engaged in cash crop farming but with reduced capacity.

In these circumstances, it is difficult to assess his economic loss in terms of his loss of or diminution of income earning capacity. There is however no doubt that his ability to participate in income earning in the cash crop economy and his ability to support himself and his family is and will be reduced.

In these circumstances, I intend to award him a global sum. The basic principle for global award is found in Kaka Kopun v The State [1980] PNGLR 557 where Miles, J. said at p. 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 (18) which was approved in Kerr’s case (19), 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 evidence is that the plaintiff was born in 1976. He was 13 years old at the time of injury. He is now about 21 years old. Average working life expectancy is 55 years. I accept Mr Steel’s submission that I use the present rural adult minimum wage at K23.00 per week capitalised at 3% for 34 years. The final figure is K25,737.70. I would allow for high degree of contingencies at 25%. I allow a high rate of contingencies because of his rural upbringing, his improved ability as a result of amputation and fitting of artificial leg and to allow for the possibility that all his time and effort would not necessarily yield maximum economic returns. Mr Steel submits a reasonable amount after allowing for contingencies at 25% is K19,303.38. Mr Kunai submits a sum of K18,000.00 is reasonable. I would allow a global sum of K18,500.00 for past and future economic loss.

Special damages

1. Past out-of-pocket expenses
   

The sum of K425.00 for past out-of-pocket expenses is not disputed. I allow the same.

2. Future out-of-pocket expenses
   

I allow K700.00 for prosthesis fitting and 6 replacements in a period of 34 years. I also allow PMV costs for seven trips to Lae for the prosthesis and out-of-pocket expenses in food and accommodation for visits to Mount Hagen Hospital for review. I allow K1,800.00.

Deduction for compensation

There is evidence that some compensation was already paid to the plaintiff by the defendants. Compensation paid in cash and pigs total K5,000.00. Another K500.00 was paid for wheelchair. The total sum of K5,500.00 should be deducted from the total damages payable.

Interest

I agree with McDemott, J. in Caedmon Koeba v The State [1984] PNGLR 365, that interest on pre-trial general damages and economic loss should run from the date of accident at 4%. I apportion pre-trial general damages at K15,000.00 and economic loss at K3,428.00. I allow total interest at K5,897.00.

Summary of awards

In summary, I award the following:

General damages : K40,000.00

Economic loss : K18,000.00

Special damages : K 2,925.00

Interest : K 5,897.00

Total : K66,822.00

Less Compensation paid : K 5,500.00

Total : K61,322.00

I award total damages inclusive of interest at K61,322.00 plus costs.

Lawyer for the plaintiff: Kunai & Co. Lawyers.
Lawyer for the defendant: Warner Shand Lawyers.