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Kupo v Motor Vehicles Insurance Ltd [2002] PNGLR 49 (24 September 2002)

NATIONAL COURT OF JUSTICE

SHELLEY KUPO

v

MOTOR VEHICLE INSURANCE LIMITED
(In Liquidation)

Waigani: Salika J
08 April; 24 September 2002

Damages – Personal Injuries – Particular awards of general damages – Fracture of left tibia and fibula – Dislocated left ankle joint – Injuries to right foot – Lacerations to face, elbow and foot – Fractured limbs – Trapped in cabin for several hours – Distressed pain and suffering – Herrous shock 95% loss of efficient use of left foot – 30% loss of efficient use of right ankle – Ugly scars on 75% of the right thigh – Ugly scars on 90% of left leg – Married working woman 36 years old.

Facts

The plaintiff was a passenger in a vehicle and suffered extensive injuries caused from a collision with another vehicle. She claimed general damages, special damages and interest and costs from the insurer under s 54 of the Motor Vehicles (Third Party Insurance) Act.

The defendant admitted liability but contested the extent of the injuries and amount of compensation claimed by the plaintiff.

Held

1. That the Court is satisfied on the balance of probabilities that the plaintiff suffered enormous pain and suffering.

2. Using previous cases as a guide, the current situation and the change in the value of the currency the plaintiff is awarded K80,000.00 as general damages; K48,056.40 for past economic loss; and K43,172.00 for future economic loss.

Papua New Guinea cases cited

Bosip Opa v MVIT (2001) unreported N2122.

Cecilia Dir v MVIT [1991] PNGLR 433.

Collin v MVIT [1990] PNGLR 580.

George Kiak v Tora Enterprises Limited and MVIT [1986] PNGLR 265.

Jones v MVIT [1988-89] PNGLR 611.

Ron Tipul v Moses Yore and Mt Hagen Golf Club (1996) unreported N1648.

Counsel

Ms Naipet, for plaintiff.
Mr Honey, for defendant.

24 September 2002

Salika J. On 21 September 1996, the plaintiff was a passenger of a Toyota van registration number KAB 086 that was insured by the defendant and driven by Stephanie Humphries. The Toyota van was owned by LAWA Investments Pty Ltd. The plaintiff and the driver were travelling along the Mosa - Kimbe Highway from Mosa to Kimbe. The plaintiff was seated in the passenger seat in the front beside the driver. At that time a Nissan station wagon registration number KAA 420 owned and driven by a Patrick Pole was travelling along the same road in the opposite direction. As the two vehicles traveled towards each other the Nissan Station wagon suddenly made a "U" turn in front of the approaching Toyota van. As a result of the sudden "U" turn, the Nissan station wagon collided with the Toyota van thereby causing injuries to the plaintiff.

The plaintiff sustained the following injuries:-

(a) compound transverse fractures of the lower one third of the left tibia and fibula.

(b) Dislocated left ankle joint and extensive soft tissues damaged at the fracture site.

(c) Extensive soft tissue injuries to the right foot and diastases of the ankle joint.

(d) Lacerations to the left face, eyebrow, left elbow, left knee and right ankle.

(e) The plaintiffs mutilated and fractured limbs were trapped in the cabin of the Toyota Van for several hours before help arrived and the steel wreckage of the vehicle had to be cut to enable her release.

(f) Distress pain and suffering and nervous shock.

The plaintiff received the following treatment as a result of the injuries she sustained:-

(a) facial laceration was sutured under local anaesthetic.

(b) Managed conservatively with debarment of the wound, intravenous antibiotics, and a back slab to the left leg.

(c) Treated with internal fixations.

(d) Extensive split skin grafts, muscle and shin flips were done on the left leg and foot to cover the exposed bones and covered with antibiotics.

The plaintiff was hospitalised for a period of 8 weeks from 21 September to 15 November 1996 both in Papua New Guinea and Australia. She had thereafter attended clinic on a regular basis from 17 November to 29 December 1996. In early November 1997 the plaintiff returned to Australia where the malunited bones of her left leg were operated on and fixated to allow proper union.

After hospitalisation and treatment the plaintiff has recovered, but has sustained the following permanent disabilities.

1. 95% loss of efficient use of her left leg, foot and toes

2. 30% loss of efficient use of her right ankle

3. ugly scars on 75% of the right thigh and the donor site of the skin graft.

4. Ugly scars involving 90% of her left leg, 40% of her left foot, 10% of her left knee, 5% of her left elbow and 10% of her left eye brow.

The plaintiff alleged that as a result of the motor vehicle accident she has suffered damages. She claims general damages, special damages, interest and costs from the defendants.

The defendant is sued as the insurer of the motor vehicle in which the plaintiff was a passenger under s 54 of the Motor Vehicles (Third Party Insurance) Act Chapter 295.

The plaintiff alleged that the motor vehicle accident was caused by the negligent driving of Patrick Pole the owner and driver of the Nissan station wagon. Particulars of negligence alleged were that the driver of the Nissan station wagon:

(a) failed to keep any or any proper look out

(b) failed to keep his vehicle under any or any proper control

(c) failed to drive with due care and attention

(d) failed to give any reasonable consideration to other users of the road

(e) failed to direct the course of the Nissan so as to avoid the collision when it was or should have been apparent that a collision was likely

(f) attempted an improper and unsafe maneuver on the highway in the path of an approaching vehicle

(g) attempted to run his vehicle so as to proceed in the opposite direction on the path of an approaching vehicle.

By reason of the negligence of the driver of the Nissan station wagon the collision occurred and the plaintiff was injured and suffered and will continue to suffer loss and damage.

The plaintiff gave oral evidence and also relied on affidavit evidence deposed to by herself. Medical reports were tendered into evidence by consent. The following are the reports tendered by consent:

- Exhibit A – Dr Ken Esau Boone's report dated 24/9/96

- Exhibit B – Dr Richard Lewandowski's report dated 25/10/76.

- Exhibit C – Dr Paul Georghious' report dated 14/11/96

- Exhibit D – Dr John Tuffley's report dated 21/11/96

- Exhibit E – Dr Blassius Tonar's report dated 15/12/96

- Exhibit F – Dr Jawaski's report dated 25/08/97

- Exhibit G – Dr O'Connell's report undated: referenced 173522-1

- Exhibit H – Dr Ken Esau Boone's report dated 28/08/98

- Exhibit I – Dr John Tuffley's report dated 13/10/98

- Exhibit J – Dr David Watte's report dated 15/11/99

All these medical reports were tendered into evidence to demonstrate to the Court the intensive medical treatment and care she went through both in Papua New Guinea and Australia. She was indeed very lucky to have been flown to Australia to be attended to by specialist doctors and given special care and attention.

I had the opportunity to view the plaintiff in court. She showed the court the ugly scars that cover about half of her upper and lower limbs. She was able to walk and or stand in the court room without the aid of crutches but I noticed she had a limp. The scars are permanent. I am not able to say if the limp is permanent. Doctor Tonar, in his report dated the 25 December 1996, said the plaintiff has suffered the following injuries.

(a) 95% permanent loss of the efficient use of her left leg, foot and toes.

(b) 30% permanent loss of the efficient use of her right ankle.

(c) Permanent ugly scars and colloids involving 90% of her left leg, 40% of her left foot, 10% of her left knee, 5% of her left elbow and 10% of her left eyebrow.

The defendant admitted liability at the trial through its lawyer but submitted that the plaintiff has recovered well from her injuries and that there was not much permanent damage.

From all the evidence that has been presented in court, I am satisfied on the balance of probabilities that the plaintiff has suffered enormous pain and suffering. I am satisfied that the injuries she received and the continuing disability that has been rendered upon her is going to effect the type of lifestyle she leads now. She will no longer enjoy working outdoors on projects that she enjoyed before. The plaintiff said she suffered extreme pain while being pinned to the crushed froulal structure of the vehicle she was in being extracted from the wreckage. She still suffers pain associated with the initial injuries she received. Added to the physical pain she suffered psychological stress and anxiety also associated with her injuries together with the continuing inconvenience of having to attend clinic on regular reviews. She gets distressed from the scarring and says that she feels insecure because the injuries have made her look and feel like an old woman. In the circumstances described about I am satisfied that some permanent damage has been done to the plaintiff physically and emotionally. I accept what Dr. Tonar says in his report about the plaintiff's damages. I find that the extent of permanent damages to the plaintiff has been accurately assessed considering the seriousness of the accident. What now remain to be done is to assess appropriate damages.

General Damages

The plaintiff through her counsel has cited some comparative verdicts to the Court that could help to assess appropriate damages under pain and suffering. The case of Ron Tipul v Moses Yere and Mt Hagen Golf club (1996) N1648 involved a plaintiff who was a young village boy aged 21 years with no fixed income who suffered a crush injury to his upper tibia of his right leg to which future amputation was inevitable. General damages were awarded at K40,000.00

The case of Bosip Oka v MVIT (2001) N2122 involved a plaintiff who suffered severe leg injuries in a motor vehicle accident and was awarded K35,000.00 in general damages.

In Cecilia Dir v MVIT (1991) N984, the plaintiff a middle-aged village woman suffered substantial incapacity, including leg and shoulder injuries laceration of her left forehead, fracture and dislocation of her left shoulder, laceration to the posterior of her left ankle and communicated displaced fracture of her distal tibia and fibula. General damages were awarded at K35,000.00. In George Kiak v Tora Enterprises Limited and MVIT (1986) PNGLR 265 the plaintiff, a male magistrate, suffered a compound fracture of his tibia and fibula and suffered 75% loss of function of his tibia and fibula. He was awarded K29,000.00 in general damages.

The extent of injuries sustained by the plaintiff are similar to those suffered by Ron Tinpul. Ron Tinpul was treated within the country, while in this case the plaintiff was flown to Australia for further treatment. Ron Tinpul had his leg amputated, while the plaintiff in this case if not treated could have ended up with a amputated leg. She was lucky to have been flown out of the country to Australia to be treated. I am of the view that the injuries by the plaintiff are similar to Ron Tinpul. In that regard taking into account the current economic situation in the country and the value of the currency now and the inflation level I am prepared to go toward an amount double that awarded to Ron Tinpul. In the circumstances I award K80,000.00 for general damages.

Past Economic Loss

The plaintiff was employed with the Kandrian – Glouchester Intergrated Development Project at the time of the accident. She was on a salary of K479.20 per fortnight. After the accident she was unable to continue her employment with that project. Although she did not resign, her inability to attend work and her long absence from work was deemed resignation. She therefore was taken off the payroll of the project from 21 September 1996. On 1 January 1997, she secured employment with North Simbu Rural Development Project under the Department of Simbu. Her loss of wages from 21 September 1996 to 1 January 1997 was K3,217.50

While employed by the North Simbu Rural Development Project the plaintiff was paid K621.21 per fortnight. She worked on that project for 10 months but she left the project firstly because the project came to an end and secondly because the project would not allow her to go to Australia for her medical review. She was employed from 1 January 1997 to 30 October 1997. From 31 October 1997 to 30 September 1998 she was unemployed. From 1 October 1998 she secured another job with ANUTEC Mt Hagen. She was employed as the Regional Gender Specialist for the Highlands Region based in Mt Hagen. Her contract was for a period of 3 years and was to end on or about 1 October 2001. She was on a Salary of $30,000.00 Australian. That works out to $1,153.85 per fortnight which included an accommodation allowance, school fees for her children and vehicle allowance. She was on a much higher salary than her previous engagement. That employment came to an abrupt end when she was terminated on or about 1 August 2000 for non performance. The plaintiff says this was due to the fact that her job required her to travel extensively throughout the Highlands Region to visit project sites in remote areas and she was not able to do that because of her injuries. She therefore claims 14 months salaries she lost as a result of her premature termination.

Whilst I accept that the plaintiff lost her job because of non performance she ought to have known by then that her ability to perform that job was not possible because of her injuries and not accept the job. On the other hand, if she was on a contracted employment as has been pleaded, such contract of employment is not before the court. What the terms of the contract of employment were I do not know. All that the court is told is that she was terminated for non performance which is usually a term of any contract of employment. If she were terminated because of non performance then the party terminating her was in its right to terminate such employment. If such was stipulated in the contract of employment, there is no evidence that she attempted to do her job but because of her injuries she could not. That may have been the reason for her non tried performance, but she, in my view, has to provide evidence of attempting or trying but failing because of her inability due to her injuries. In the absence of such evidence, I do not think I can award the full damages for her past loss from her termination of employment for ANUTEC for the remaining 14 months. However, because of her injuries I am prepared to award about half of what she may have lost and that is K34,050.90

Likewise in so far as her employment with Simbu Rural Development Project was concerned. The evidence is that that particular project she was engaged in was completed and therefore her continued engagement was therefore no longer necessary. She said she could have stayed on for another project but they did not allow her medical leave so she had to be laid off. In my view the fact that she might have stayed on with another project had it not been for her injuries is claimable. In this case she alleges she lost K3,217.50.

The reference letter from North Simbu Rural Development Project says that her contract with them expired on the 30 October 1997. If she was employed on a contract for a particular project and it ended on 30 October 1997 then it is my view that there was no guarantee of another job within the North Simbu Rural Development Project. It meant that she would have to apply to be engaged in another project. There is no evidence that she applied for a job with another project. I am mindful though that she may not have applied because she was to go to Australia for a review of her medical condition. In that situation I need to strike a balance and in doing so I am of the view that because of the situation she was in she had to forego any chance of employment to attend to her medical review. In the circumstances I am prepared to award her the K3,217.50

The plaintiff claims loss of wages from the date of the expiring of her contract with ANUTEC to the date of trial. That is from 10 October 2001 to 8 April 2002. That is a period of 10 months 1 week. Calculated at K479.20 her salary at the Kandrian Glouchester Intergrated Development Project she lost K10,782.00 for that period. For that I am prepared to award her that loss because it is a direct loss from her injuries.

The aggregate of the plaintiff's past economic loss from 21 September 1996 to 8 April 2002 in my view is K48,056.40. I award that amount as past economic loss.

Future Economic Loss

The plaintiff's injuries have now settled although she still carries the ugly scars on her leg. She still is limping from the injuries. She is no longer employed. She is a determined woman and has gone to the University to further her education in the hope that she will find suitable employment taking into account her current physical condition and ability. She will no longer be able to do the type of jobs she previously had because those jobs included strenuous physical activities and involved a lot of travelling. The plaintiff is now 36 years old and has about 19 years of working life left in her. I adopt Jones v MVIT [1988-89] PNGLR 611 and Collin v MVIT [1990] PNGLR 580 and apply the same in calculating future economic loss.

Future Loss of Salary

The plaintiff has 19 years working left. I adopt the 3% capitalisation table in my calculation for each of the losses for a working life of 19 years.

Weekly earnings

- K251.00 X 3% = 688
- K251.00 X 688 = K172,688.00
- Total Future Loss of Salary = K172,688.00

I am however mindful of the fact that the plaintiff is currently studying at the University of Papua New Guinea. She expects to graduate in 2004. She has a good prospect of securing a suitable job that will put her in a good position. I allow of such contingencies and award her a quarter of K172,688. Accordingly I award her K43,172.00 for future loss of salary.

Out of pocket expenses

The plaintiff incurred the following out of pocket expenses
Medical Report – K255.80
Orthopedic Appliances – K236.13
Accommodation - Wicklam Terrace Motel – K196.78
- Summit Apartment Hotel – K206.32
Plaintiffs Airfares: Port Moresby – Cairns – Return
For medical review - K1,768.50
Miscellaneous - K 1,000.00
Total - K3,663.53
I award K3663.53 for out of pocket expenses.
Summary:

Damages for pain and suffering and loss of amenities K80,000.00
Damages for past economic loss 48,056.40
Damages for future economic loss 43,172.00

Out of pocket expenses 3,663.53

TOTAL K174,891.93

I also award costs and interest at 8% from the date of the issue of the writs to the date of trial.

I note that the K174,891.93 plus costs and interest will be more than the amount allowed under the Motor Vehicle (Third Party Insurance) Act which is K150,000 plus interest and costs. In the circumstances I award K150,000.00 to the plaintiff plus interest and costs.

Total award – K150,000 plus interest and costs.