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Ban v The State [1990] PGNC 17; N827 (19 March 1990)

Unreported National Court Decisions

N827

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 258 OF 1987
PENDAGI BAN
V
THE STATE

Mount Hagen

Woods J
12-13 February 1990
19 March 1990

DAMAGES - Personal injuries - Pedestrian.

Cases Cited:

Koruo Birim v Jovane Mohamad and The Independent State of Papua New Guinea [1981] PNGLR 545.

Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365.

Thomas Tambi v The State, N 780 Unreported judgment dated 30 October 1989.

Counsel:

P Kopunye, for the plaintiff.

M L Tilto, for the defendant.

19 March 1990

WOODS J: The plaintiff Pendagi Ban then an infant aged about 14 years was on 2 August 1982 returning home with her mother along the Tente Road Mendi when she was struck by a vehicle owned by the State and driven by an employeehe State.

Liability lity has been agreed at 30 per cent on the plaintiff and 70 per cent on the State and this case now comes before me on an assessment of damages.

The plaintiff was admitted to the Mendi Public Hospital following the accident with a fractured left femur and abrasions to the head. Traction was applied; however, she developed osteomyelitis. There was healing of the fracture with some angulation. The left leg is now 3 cm shorter than the right leg.

She spent 4 months in hospital because of the problems in the healing process. For sometime the angulation from the fracture was creating some distress in her hips; however, the angulation has now almost disappeared and there is less stress to the hip joint.

Whilst one can say there is a general recovery the plaintiff will have a permanent disability from the shortening of the leg. The disability has been estimated at 15 per cent by the doctor, and as her whole life in the village would involve a lot of physical work in the garden and village, this could make an appreciable difference to her life.

This is not a simple leg fracture like Anis Wambia’s case; rather it is closer to the cases of Kuro Birim [1981] PNGLR 545, Caedmon Koieba [1984] PNGLR 365, and Thomas Tambi N780.

In Birim’s case the plaintiff ended up with a shortening of the leg and the Court assessed general damages at K12,000 and allowed some amount for loss of income.

In Koieba’s case, an Anglican priest aged 46 at the time of trial, and who was forced to retire early and who fended up with a shortening of the leg, was awarded K19,000 general damages. A further amount was assessed for loss of income.

In Tambi’s case, the plaintiff had a fracture which required the insertion of a K-Nail. There were other complications and the plaintiff ended up with a stiffness of the knee and thus a reduction in the efficient use of the right leg. General damages was assessed at K15,000 and further amounts were allowed for loss of income.

The plaintiff before me is not in the modern work-force and of course at the time of the accident was too young to have been an earner. However just because there are no economic loss figures directly applicable to her does not mean I should completely ignore such. So I assess the General Damages to include the general disability she will have all her life in pursuing her village work.

The plaintiff was quite clearly in some discomfort from the time of the accident until the angulation disappeared and thus alleviated the stress on her hip joint.

In the circumstances and on the analogy of the cases quoted I would assess a figure of K14,000 for pain suffering and loss of amenities and the general disability she will have all her life. I will apportion K8,000 of that to the period up to date and allow interest at 8 per cent on that from the date of issue of writ to date of judgment.

Judgment for K11,074.70.

Lawye the plaintiff: P Kopunye.

Lawyer for the State: State Solicitor.