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Coady, an Infant v Motor Vehicles Insurance (PNG) Trust [1985] PGNC 9; [1985] PNGLR 450; N521 (26 November 1985)

N521

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

BERNARD JULIEN COADY (AN INFANT BY HIS NEXT FRIEND CHRISTOPHER JOHN COADY)

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani
Woods J

21-22 October 1985
1 November 1985
26 November 1985

DAMAGES - Personal injuries - Particular awards of general damages - Head and facial injuries - Scarring - Child aged four and a half (five and a half at trial) - Award of K12,000 general damages.

COSTS - Departing from general rule - Powers of court - Payment into court - Judgment for less than amount paid in - Infant claim for damages - Payment into court made day prior to hearing - Overseas counsel briefed - Court sanction required if settled - Special cause shown - General rule applied - National Court Rules, O 22, r 18.

The plaintiff, a male child aged four and a half (five and a half at trial), suffered head and facial injuries when precipitated through the windscreen of a motor vehicle. A glass fragment was surgically removed from the front lobe of the brain. The residual disabilities included severe scarring, occasional double vision and tiredness in one eye and loss of feeling in the forehead.

On the Friday before the Monday fixed for hearing the defendant paid into court a sum which was greater than the amount of the judgment. The National Court Rules, O 22, r 18(3), provides that where money is paid into court and the plaintiff receives less than the amount so paid in, the plaintiff shall, unless for special cause the court or a judge shall otherwise order, be entitled to an order for his costs to the date of the payment in only and shall be required to pay the defendant’s costs thereafter.

Held

(1) General damages for pain and suffering and loss of amenities should be assessed at K12,000.

(2) In the circumstances, including the time at which the payment was made and the claim being one which if settled required the approval of the Court, special cause existed justifying an order for costs of the action up to the date of the judgment.

Cases Cited

Jones v Lawrence [1969] 3 All ER 267.
Kandapak v Independent State of Papua New Guinea [1980] PNGLR 573.
Kennedy v Jerry Nalau [1981] PNGLR 543.
Pose v Independent State of Papua New Guinea [1981] PNGLR 556.

Statement of Claim

This was the hearing of an action in which the plaintiff sought damages for personal injuries as a result of a motor vehicle accident.

Counsel

R A Adams-Smith QC (of the Bar) and N Diacos, for the plaintiff.
F R Molloy, for the defendant.
Cur adv vult

1 November 1985

WOODS J: The plaintiff, aged four and a half years at the time, was involved in a motor vehicle accident in June 1984 in which he was thrown through the windscreen sustaining lacerations to the forehead and to the eyelids and a piece of glass went through the roof of the left orbit into the front lobe of the brain.

On the day of the accident he was operated on at Port Moresby General Hospital where multiple series of sutures were performed to the lacerations on the forehead and eyelids. The plaintiff was flown to Brisbane the next day where he was operated on to remove the glass fragment from the front lobe of the brain. The plaintiff was in hospital for about ten days and for part of that time he would have been unable to see because of the wounds and the bandaging.

The head wounds have now apparently healed well, however there is substantial scarring. Whilst some of the scarring could be repaired by plastic surgery sometime in the future, there will always be a residue of scarring remaining. Because of the age of the plaintiff it is recommended that any plastic surgery be delayed for some years.

There is no evidence of any personality or intellectual impairment or permanent injury to vision, however there is evidence of occasional double vision and some sensory loss over the forehead. The double vision would appear to be a symptom of tiredness and appears when the plaintiff tries to read or concentrate for too long. It is perhaps still too near to the accident for any problems in this area to have settled.

The medical evidence suggests a higher than normal possibility of some form of epilepsy, however the possibility is decreasing as one progresses further in time from the accident and by now is into the realm of speculation.

Liability has been admitted and the Court is being asked to assess the damages. Medical and hospital and other expenses incurred following the accident have been agreed upon. I am now asked to assess damages for pain and suffering, for loss of amenities and enjoyment of life and for potential future economic loss.

Pain and suffering: I have no doubt that the plaintiff did suffer great pain and distress following the accident. It would have been a frightening experience for such a young boy to be hurt in the area of the eyes and to be in pain and bandaged up and not able to see for a few days.

Loss of amenities and enjoyment of life: This flows from the occasional double vision and tiredness in the left eye and the loss of feeling in the forehead. I am satisfied that the plaintiff may suffer some inconvenience from his injuries, however it is impossible to be sure of what the future problems may be and to obtain any exact figures for such inconvenience. It is necessary for me to arrive at a figure that is reasonable in the circumstances.

Future economic loss: There is no real evidence that there could be future economic loss. The Court cannot go so far into the uncertain future and say in twenty years time he may have been an airline pilot and he will now not be able to be therefore he will lose that income. It may just as fairly be said that he may now go into another occupation which could be more lucrative. The plaintiff now has ample time and opportunity in which to choose a career commensurate with his wishes and ability. There is no evidence of any intellectual impairment and there is no evidence that any problem with his eyes will actually affect his future employment or career. The great difficulty here is that the plaintiff is very young and the accident only happened sixteen months ago.

In considering figures for pain and suffering and loss of amenities and enjoyment of life counsel for the defendant referred me to certain decisions of the National Court such as Kennedy v Jerry Nalau [1981] PNGLR 543 where for a child with permanent facial scarring and subject to eye irritation K10,600 was arrived at for general damages; Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573 where for 50 per cent loss of function of right hand K10,000 was awarded for pain and suffering and loss of enjoyment of life; and the case Pose v The Independent State of Papua New Guinea [1981] PNGLR 556 where K9,000 was awarded as general damages for pain and future loss of function, loss of amenities and pain and suffering where there was minor loss of function of right arm and leg.

On the other hand counsel for the plaintiff referred me to Jones v Lawrence [1969] 3 All ER 267 where the evidence was that the plaintiff had suffered an actual set-back in his schooling and the judge found there was some permanent deterioration in brain function. And in the other cases he referred me to there was clear curtailment of vision or complete loss of sight in an eye.

Whilst it is of interest to look at what courts have found to be reasonable in other cases one cannot regard any such figures as a tariff. Each case must be looked at separately and an assessment made in each case of what is a reasonable amount to compensate the plaintiff for the loss and damage and pain suffered.

Allowing for past and future pain and suffering, discomfort and inconvenience which includes the permanent scarring, and for loss of amenities and enjoyment of life, I propose a figure of K12,000. I allow an amount of K1,000 for future operations for scar revision. Whilst I realise any such treatment will not be done for some years I will not discount the figure as I am sure the costs of such operations will increase.

The special damages agreed to with relevant interest to date of judgment are the amounts of $5,866.10 and K1,505.32. I allow interest of 4 per cent on the general damages from the date of the injury.

General Damages K12,000.00
Interest at 4 per cent 653.59
Future Operations 1,000.00
Special Damages 1,505.32 $5,866.10
K15,158.91 $5,866.10

I order that the sums of K1,505.32 and $5,866.10 be paid to the next friend forthwith and the sum of K13,653.59 be paid to the Public Trustee of Queensland for him to invest on behalf of Bernard Julien Coady until he attains the age of eighteen years subject to the K1,000 for future operations being made available if scar revision operations are performed before the plaintiffs eighteenth birthday.

ON COSTS

26 November

I have had to give special consideration to the awarding of costs in this matter because before the trial the defendant paid into court an amount greater than the amount of the judgment awarded by the Court.

Order 22, r 18(3) of the National Court Rules states that where money is paid into court and the plaintiff receives less than the amount so paid in, the plaintiff shall, unless for special cause the court or a judge shall otherwise order, be entitled to an order for his costs to the date of the payment in but be asked to pay all the costs of the defendant so paying into court from and after the date of such payment into court.

The payment into court was made on Friday, 18 October and the case had been listed some weeks earlier for hearing on Monday, 21 October.

I am satisfied there is special cause, first because payment in was made literally the day before when everyone knew overseas counsel was being briefed; and secondly it involves an infant for which parties have to approach the Court for the Court’s approval to any settlement if such is reached.

By the time payment in had been made the plaintiff would have made all arrangements for the trial. It is unreasonable to expect a next friend to make an instantaneous decision without being able to fully consult the doctor and counsel bearing in mind that any settlement would have to be presented to the Court for the Court’s approval, which in such a case would or could have required detailed examination of medical reports if not of the doctor.

A defendant cannot get the advantage of this rule by running to the Court the day before the trial and paying in. That is unreasonable; the defendant must have known for some time what he regards as a reasonable offer and particularly in an infant’s case must allow a reasonable time.

I find there is special cause and I exercise my discretion to award to the plaintiff the costs of the action right up to judgment. This includes the costs of the doctor as a witness. I also allow the costs of overseas counsel but not at senior counsel level.

Judgment and orders accordingly

____________________________

Lawyer for the plaintiff: Kirkes.
Lawyer for the defendant: Young & Williams.