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On v State [1986] PGNC 44; [1986] PNGLR 286; N558 (5 September 1986)

N558

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KUNJIL ON

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Waigani
Woods J
13 June 1986
5 September 1986

DAMAGES - Personal injuries - Particular awards of general damages - Back, hip, pelvic and leg injuries - Estimated 80 per cent disability from performing normal duties and walking - Male aged fifty-five years - Market supervisor and village court magistrate - Award of K18,000 general damages.

The plaintiff, a male aged fifty-five years employed as a market supervisor and acting as a village court magistrate (a former policeman and village committeeman) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injuries suffered were an injury to the hip involving separation of the pelvis, a fracture of the 5th lumbar veterbra and a fracture of both distal fibulae with severe contusions from hip to ankle. His residual disabilities caused an estimated 80 per cent loss of ability to perform normal walking and other activities with the onset of progressive arthritis. Although able to continue his work as a magistrate the plaintiff was disabled from other activities.

Held

Damages for pain and suffering and loss of amenities should be assessed at K18,000.

Cases Cited

Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350.
Koko Kopele v Motor Vehicles Insurance (PNG) Trust [1983] PNGLR 223.

Trial

This was an action in which the plaintiff sought to recover damages for personal injuries suffered in a motor vehicle accident.

Counsel

D O’Connor, for the plaintiff.
L K Karri, for the defendant.
Cur adv vult

5 September 1986

WOODS J: This is an action for damages arising out of an accident which occurred at Mt Hagen on 30 April 1983 when the plaintiff was struck and run over and dragged by a police motor vehicle registered number ZGE 289 driven by one John Edavu and owned by the Independent State of Papua New Guinea.

Liability was admitted by the defendant the State and the matter has come before me as an assessment of damages to be awarded.

The plaintiff received the following injuries from the accident.

1. Diastasis of the symphsis pelvis, namely a separation of the hip girdle at the front of the pelvis.

2. A single fracture of the transverse process of the 5th lumbar vertebra.

3. A single transverse fracture of both distal fibulae with contusions to the ankle, severe contusions to the hip sacroiliac joints because of the diastasis.

4. He had severe bruises and contusions to his abdomen and pelvic area.

The plaintiff spent just over seven weeks in Mt Hagen Hospital with plaster applied to the legs and analgesics for pain. After discharge from the hospital he had to attend regularly for some weeks whilst he regained mobilisation. However he still has stiff joints and pains in the hip joints and lumbar region and as he appeared in court he walks with some difficulty.

The plaintiff is about fifty-five years of age. This has to be an assessment as he has no records of his age and various figures were suggested by counsel. From his own evidence he has children of his own and his eldest child has children as well, the eldest of which is at high school. Considering the plaintiffs age and effects of such injuries on a man of such an age and consequent progressive osteoarthritis that would follow from such injuries to the hip, sacroiliac and lumbar joints and ankle joints, all the medical advisors have estimated an 80 per cent disability from performing his normal duties and walking. Medical evidence has been given by three medical practitioners, a doctor Alan Kulunga who was the Acting Medical Superintendent of the hospital at the time of the accident, a doctor Nelson a private practitioner at Mt Hagen, and a doctor Seta, the Surgical Registrar at the hospital.

Dr Kulunga’s report in 1986 confirms what he reported in 1983 at the time of the accident. Dr Nelson’s analysis is similar except he highlights complications in the area of the kidneys namely a stricture of the urethra.

There is no doubt that the plaintiff would have suffered great pain from the injuries received at the time of the accident having being dragged by a vehicle and sustaining fractures in the legs and hip and severe bruises generally. And being an old man these injuries would lead to aggravated osteoarthritis in the hips, lumbar region and ankle joints.

I have assessed the plaintiffs age to be about fifty-five years and at the time of the accident he was employed as a supervisor at Mt Hagen Market. In his early years he has been a policeman and a village council committeeman and more recently a village court magistrate. He is quite clearly a man of some standing in his village and community and his village life involves him in a considerable amount of activity both public and private.

With respect to loss of earnings the plaintiff earned K77.30 net per fortnight at the Mt Hagen Market and he has therefore lost income from that time to date. He was paid for a short time after the accident up until 12 August 1983. He has then lost pay from 12 August 1983 to today a period of 160 weeks. For future loss of income there is very little to go on to help estimate how much longer he would be working for. I am unable to find that he would be working for a further five years till sixty years of age. But I am quite prepared to accept that he may have worked for a further two or three years after the accident and a period of three years has already been covered by loss of earnings to date. I am unable to find that there would have been any further loss of earnings by the plaintiff.

For pain and suffering and loss of amenities counsel for the plaintiff submitted that I should use the recent awards in relation to paraplegics as a guide to what should be awarded here and then apply the figure of 80 per cent disability with respect to those figures. He refers me to the case of Aundak Kupil v The Independent State of Papua New Guinea [1983] PNGLR 350 where an amount of K90,000.00 was awarded in general damages. He also refers me to the case of Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350 where an amount of K75,000.00 was awarded in general damages and he also refers me to the case of John Yap v PNG 1985 where an amount of K70,000.00 for general damages was awarded. Counsel for the plaintiff submits that a mean of K80,000.00 could be looked at and 85 per cent of that gives us a figure of K68,000.00.

I cannot agree with this reasoning as 80 per cent disability does not mean 80 per cent of paraplegic. In a paraplegic there is a total inability to do things whereas the plaintiff in this case can still do many things a paraplegic cannot do. The plaintiff here can get around, he is not 80 per cent helpless, he can perform all his ablutions, he can sit as a village court magistrate. Yes I agree that he will not be able to travel around as much and he cannot perform many money earning tasks. I find that the case of Koko Kopele v Motor Vehicles Insurance (PNG) Trust [1983] PNGLR 223 is more appropriate. However I find that the plaintiff in this case before me suffered more pain and suffering and loss of amenities than Koko Kopele did, therefore I would award more damages than was awarded to Koko Kopele with respect to general damages, pain and suffering and loss of amenities. In Koko Kopele’s case the Judge appeared to assume that there was pain and inconvenience for a time whereas in the case before me the plaintiff has come to this Court and clearly stated that he feels pain and it was quite obvious from his appearance in court that he was in some difficulties. I would therefore assess an amount of K18,000 for pain and suffering and loss of amenities.

Interest: I allow interest on K10,000 of the pain and suffering and loss of amenities at 4 per cent from the date of the accident being an amount of K1,338.00. I allow interest on the loss of earnings at 4 per cent from 12 August 1983 being an amount of K761.10.

The award will therefore be:

Pain and Suffering and loss of Amenities K18,000.00

Interest 1,338.00

Loss of Earnings 160 weeks at K77.30 per fortnight 6,184.00

Interest 761.10

K26,283.10

I order judgment for the plaintiff in the sum of K26,283.10.

Judgment accordingly

___________________

Lawyer for the plaintiff: D O’Connor.
Lawyer for the defendant: State Solicitor.