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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
W.S. 548 OF 1977
BETWEEN: BARRY MAURICE STAMP
PLAINTIFF
AND: MOTOR VEHICLES INSURANCE (P.N.G.) TRUST
DEFENDANT
Rabaul & Waigani
Wilson J
9-10 May 1978
9 February 1979
DAMAGES - quantum - amputation of leg - general damages include future costs associated with replacement of and/or adjustments to prosthesis and costs of alterations to motor vehicles.
DAMAGES - quantum - loss of earning capacity should be proved - difficulty of quantifying loss of earning capacity without satisfactory evidence upon which assessment can be made - desirability of adducing evidence of employment opportunities and difference between wage levels in pre-accident employment and post accident employment - loss of earning capacity of skilled and experienced tradesman reduced to sedentary work is not less than 25% of his full capacity - actuarial figures to be used as a guide only.
9 February 1979
WILSON J: The plaintiff in this action is a motor mechanic who had his leg amputated as a consequence of a road accident in which he was involved and which occurred on 31st January, 1977. He now walks with an icialicial leg.
Liability is agreed between the parties and the matter comes before me for assessment of damages. Judgmell in due course be e be en for the amount of the damages I assess.
The plaintiaintiff was 37 years old at the time of the accident. He is an Austr who ntered ered Papua New Guinea on 1st August, 1967, from from which time onward, until the accident, he had been employed in variontres as a motor mechanic. On ty of the accident he h he held the position of workshorkshop supervisor.
In the accident, which as I have indicated, occurred on 31st January, 1977, the plaintiff, who had been riding a motor cycle, got his right foot caught up in the bumper bar, he was thrown over the bonnet of the utility with which his motor cycle had come into collision, and he landed on his right knee. It is not disputed by the defendant or its advisers that the plaintiff sustained serious injuries. The inner aspect of his right foot was torn out, involving extensive skin and tendon loss. His right knee cap washed leaving a gaping hole.hole. In fact,ustained a gross coss compound fracture of the upper end of his right tibia involving the koint. He had a graze on his forearm and another graze on his right hand. The plhe plaintiff still has marks indicating where these grazes were, but they are not unsightly. It was not surprising aft, after receiving injuries such as have just been descr the plaintiff went into shock shortly after the collision.sion. In he did so at about thet the time he was admitted to the Noase Hospital at Rabaul.. The plaf was in a lot of p of pain at this time. After initially some e plae plaintiff's toe been amputated, the decisiecision was made, after a discussion between the plaintiff and his medical advisers, that his right leg should putated. I am satisfied that ths a as a reasonable dele decision in all the circumstances. So,th February, 1977, the the right leg was amputated through the knee. A month later a further oieration was needed in order to ensure complete covering anling of the stump.
The plaintiff eventually left host hospital on 24th March, 1977, after nearly two months of quite extensivepainful treatment. Ev0; Even re treatment witt with pain-killing drugs had done little to alleviate the pain, he had had little sleep in hospital, and phantom and cramp-like pains had troubled him.
In the months following his discharge from hospital the plaintiff suffered a considerable amount of pain, and he continued to use the crutches, which he had learnt to use whilst in hospital.
After soon getting sick of staying at home, the plaintiff returned to work at about the beginning of April, 1977. He still felt very weak.& 160; The stump of his right leg was not yet ready for a prosthesis or artificial leg. On two oons the plaintiff tiff slipped and fell down through not having a right leg to support him; this necessitated having to go to be about three days on each occasion.
On 7th July, 1977 the plaintiff, with his wife, ife, flew to Melbourne, Australia, for the fitting of a prosthesis. ent seven weeks in hospitaspital at the Royal Talbot General Rehabilitation Hospital at Kew, during which time he received physiotherapy treatment and other treatment incidental to the fitting of what was ultimately to be a through-knee prosthesis.
A prosthesis has a limited life span, approximately one year. A time of the hearing of t of this action the plaintiff was not finding his prosthesis very satisfactory, on account of the imperfect fitting, and he was experie discomfort and inconvenience. satisfied that heat he neee needs another prosthesis and will need other replacements or adjustments in the future. Artificial of this kind cind can be replaced free of charge to the patient at Commonwealth Repatriation Artificial Limb and Appliance Centres in Sydney, Brisbane and Melbourne - it usually takes about three weeks. However, the plaintill be l be put to the expense of fares to and from the centre he goes to and, except in Melbourne where he could stay with his ts, there will be the expense of accommodation. The likelihood at he will will generaenerally have this done in Melbourne. I hncluded in the general eral damages award the sum of K5,000 for expenses of this kind.
After returning to work in Raon 4ttember 1977, he e he encountered for the first time the problems and inconvenience associatociated with having a prosthesis. Alh he was considerably bely better off than if he had no leg at all, the extent of his activities were restricted. He found he dt move about bout as much as before the accident.
In January, 1978 the plaintifintiff moved to Australia to live. HntracPapua New Guinea hada had not been renewed. With reference to dg motormotor vehi vehicles, he experienced little trouble w still living in Papua New Guinea, but since being in Australia he has required an adapted pted motor vehicle.
I have includedhe general damages award thrd the sum of K1,000 which, on the evidence, represents a reasonable sum for the cost of having alterations done to the motor vehicles he will purchase from time to time. He will always need an auiomatic motor vehicle and the accelerator pedal will need to be shifted from the right side to the left.
The plaintiff's pre-accident leisure activities ded driving, boating, playing snooker and darts, walking, sng, swimming, and participating fully in club life. On occasions thentiff used used to do mechanical work at home for friends as a hobby. He had a satisfying and a tive social and recreationfe. now restricted in all of l of these activities. Physical movemnvolvinolvinolving the use of his legs will be restricor tht of his life. He will always limp te some some extent and his gait will not be as smas smooth as in the case of people walkingheir own two legs.
A
At present walking up slopes presents some slight difficulty and on such occasions strain is placed on the right thigh. Greater diffi is encounteruntered when walking down slopes. Standing still fng periodsriods causes discomfort to his stump and tiredness. Ts expected to continue.
Phantom pains continue to be encountered and, although likely that they will decrease in severity, it is by no meno means certain that they will disappear entirely. The plaintiff is like be a be at risk of having falls thereby injuring himself.
As a special aspect of the plaintiff's loss of amenities of liam satisfied that his personal and sexual life with his wife was adversely affected for a tr a time. Not unexpectedly adjustments had to be made, and tension and on occasions depression were the natural sequelae of the stress placed on the marriage.
The plaintiff's claim for loss of earnind losearning capacity city is one of some complexity, on account of the fact that his contract wact with the Government of Papua New Guinea, under which he had been employed since 6th November, 1975, expired on 31st December, 1977. Notwithstanding the plaintiff's hope that his contract would be renewed so as to enable him to remain in Papua New Guinea a few more years and so enable himsave money before returning to Australia", it is probable that, whether or not he had the athe accident, it would not have been renewed. It was not proved thatterm termination of his employment in Papua New Guinea had anything to do with the accident. In, after sustaining no lono loss of earnings during 1977 due to the fact that his salary was paid to him in the period from the df the accident (31st January, 1977) until the date of his contract expired (31st December, ber, 1977), it was from 1st January, 1978 that he was at risk of losing earnings on account of his accident. If he had not been disain d in the accident, I am satisfied that he would have returned to Australia in about January, 1978 anyway but that he would have had little difficulty findingb as a workshop supervisor or, at the least, as a well-paid-paid mechanic.
The problem that the plaintiff encountered as from January, 1978 onwards was that, instead of being an able-bodied mechanic able to work either as a mechanic or a workshop supervisor, he was a disabled mechanic not able to do all that is required of a mechanic and able to do many aspects of that type of work only with difficulty. Hed problems in finding emng employment in the Cairns area, where he had wanted to live, on account of special unemployment difficulties in a place as small as Cairns. His actual experience du19ng 1978 up until the date of the hearing was that he could only find short-term work for a two months period as a supervisor/teacher for Skilled Engineering aeake on the Island of Sulawesi in Indonesia. His expe experienc1978 pro8 proved how much he is at a disadvantage in the labour market.
To summarize the circumstances surrounding his position as a member of the work-force, he is now only capable of y sedentary work whereas pras prior to the accident he was fit to hold down a job in the mechanical field involving normal physical agility. With his training mechanichanic and his experience generally, he could be expected to be able to run a garage where he could supervise mechanics and other staff in much the same way as he was doing in the final stages of his contract in Papua New Guinea.
I can foresee the real possibility of the plaintiff using part of his damages award to set himself up in a small business. That would, in mw, be a re a reasonable course for the plaintiff to adopt.
It is, of course, a matter of speculation as to how difficult it will be for the plaintiff to secure a garage for himself or find other work with which he could cope and in which his skills and experience could be used. Hr, I think he will find sind satisfying work but not without some difficulty. The probabilitiesthat he w he will not make "as good a living" (to use Mr. Challinger's words used in cross-nation of the plaintiff), af), as he did before the accident. I shouerefore anticipate sate such a continuing loss and do my best on the evidence before me to quantify the extent of such a continuing loss in monetary terms.
In this case there was a lackatisfactory evidence dealinealing with employment opportunities and an absence of satisfactory evidence of the difference between wage levels in Australia (where the plaintiff can be expected to reside) for mechanics and workshop supervisors on the one hand and those employed in sedentary positions on the other. The piff's legal advisers wers would do well in future (as would the legal advisers of all plaintiff's who seek damages by way of loss of earning capacity arising out of road accidents) to heed theing of O'Meally A.J. in n Wilhelm Lubbering v. Bougainville Copper Limited N179.html#_edn146" title="">[cxlvi]1 in which His Honour said (at p.32):
"It would be appropriate to observe that it may not be in every case that a judge will make an assessment of loss of earning capacity in the manner adopted in this case. It is otio say the plaintiaintiff carries the onus to prove his damages. some future case no evideevidence is called to establish e loss of future earnings or loss of earning capacity it well may be that no provision will will be made in respect of such matters inassessment of a plaintiff'siff's damages. In every case where a of e of earning capacity is alleged a plaintiff should prove what particular jobs are within his capacity and what remuneration such employment will return. Tss of earning capacity faty fact which, like every othy other fact, ought to be proved. There oalso to be evidencedence upon which a loss of earning capacan be expressed in economic terms".
Indeed, I might ight have found myself in this case disallowing altogether the plaintiff'sm for loss of earning capaccapacity but for the recent decision of the High Court of Australia in Dessent v. The Commonwealth N179.html#_edn147" title="">[cxlvii]2 (p.482) in which Mason and Aickin JJ. Pointed the way to solving the problem of assessing damages for loss of earning capacity in situations in which there is "the usual lack of specific evidence". In that as here, a skillekilled and experienced tradesman was left with disabilities which "constituted a severe handicap in securing employment in a competitive labour market" and he has "effectively .....confined to bench work" or sedentary work. Their Honours in that case case (at p. 487):
"Although there is the usual lack of specific evidence dealing with employment opportunities, it would be reasonable to assess the appellant's loss of earning capacity as not less than twenty five percent of his full capacity..."
Using a base figure of approximately K180 per week (being the sum he could have expected to go on earning but for the accident), I assess the plaintiff's loss of earning capacity at 25% of his full capacity, that is K45 per week, subject to an appropriate allowance for vicissitudes. The period of hpected work working life is a minimum of 25 years (to age 65) . At an interest rate of 8% the amount of compensation appropriate to this loss would be K25 Fros figure some allowancewance would need to be made made for unfavourable vicissitudes.
I have reached the conclusion the tiff's pre-accideccident earning capacity was in the region of K180 per week, and not K180 K180 to K195 as some of the evidence suggested, for the reasons urged upon me by Mr. Challinger. It ear that the plaintiff'tiff's actual net income in the period immediately prior to the accident was less than some of the documentary evidence suggested, principally on account of an over-paymhich the plaintiff receivedeived.
I have used the abovementioned figures as guides or indicators only and I recognize that there are dangers in an approach involving seemingly precise mathematical calculations. Howev have checked my conc conclusions against certain other yardsticks. It was argued on the plaintiff's behalf that he might be able to obtain some teaching fications and then readily obtain employment as a teacher oher or manager, but this would cost him (in terms of lost income) somewherthe region of K25,000.  Whi am by no means confidenfident that the plaintiff has the ambition and drive to achieve an objective such as that, he would sustain no greater loss than approximately K25,000 if he attempted such a course of training and succeeded in obtaining the necessary qualifications, because once qualified he could be expected to earn in later life, even as a disabled teacher/manager/supervisor, as much as he could have hoped to earn as a mechanic. It waued on the defendant'dant's behalf that an allowance of K25 per week capitalised at 8% over a period of 20 to 25 years would not be an inappropriate method of cation. I am content to adopt su a an approach but, ont, on the evidence in its totality and notwithstanding its deficiencies, I feel bound to take a figure higher than K25 per week (in fact, K45 per week) and capitalise it over the longer of the two periods suggested (viz. 25 years).
I therefore assess the plaintiff's loss of earning capacity at K24,000 which sum I will include in the general damages award. I also allow K1800 for the plaintiff's loss of earnings prior to the trial.
I allow K3,106.99 for special damages which include the cost of the trip which the plaintiff and his wife made to Melbourne, Victoria, fo fitting of the prosthesis.esis.
Thus the plaintiff is entitled to damages of K54,906.99 made up as follows:
| General Damages | | | | Pain and suffering; loss of amenities of life | K20,000.00 | | Loss of earnings prior to the trial | 1,800.00 | |
| Future costs associated with replacement and/or adjustments of prosthesis | 5,000.00 | |
| Costs of alterations to motor vehicles | 1,000.00 | |
| Loss or diminution in earning capacity | 24,000.00> | | | K51,800.00 | K51,800.00 |
| Special Damages | 3,106.99 | 3,106.99 |
| | | K54,906.99 |