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Gamias v Anton and Motor Vehicles Insurance (PNG) Trust [1996] PGNC 60; N1502 (18 December 1996)

Unreported National Court Decisions

N1502

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 101 OF 1992
BETWEEN
ANGOGO GAMIAS - PLAINTIFF
AND
BEN ANTON - FIRST DEFENDANT
AND
MOTOR VEHICLES INSURANCE (PNG) TRUST - SECOND DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - THIRD DEFENDANT

Lae

Sevua J
18 December 1996

Counsel

P Ousi for Plaintiff

JUDGMENT

18 December 1996

SEVUA J: The Plaintiff claims damages for personal injuries arising out of a motor vehicle accident. She also claims special damages, interest and costs.

Proceedings against the Second Defendant were discontinued on 6th October, 1992, while default judgement was obtained against the First and Second Defendants on 13th April, 1993 for failure to file their defence. In view of what transpired, the plaintiff was directed to file affidavit evidence so that damages can be assessed. As a matter of courtesy, the Court directed that the plaintiff serve a copy of its submission to the second defendant. There has been no satisfactory response from the defendants therefore, this judgment is based on the plaintiff’s submission alone.

At approximately 9:30 am. on 16 July, 1988, the plaintiff was walking along Kundu Road to West Taraka with her husband and son. A Toyota Hilux registration, ZKG 310, driven by the first defendant and travelling from the apposite direction swerved to the plaintiff’s side of the road at high speed and struck her, knocking her down unconscious. She was taken to Angau Memorial Hospital where she later regained consciousness. She suffered injuries to her left leg, left thigh, left shoulder and abdomen and she was in great pain. Following X-ray and initial treatment at the outpatient, she was discharged on the same day.

Dr Badio who attended to the plaintiff on 16 July, 1988, noted that the left shoulder was tender on movements. Although x-ray did not reveal any abnormalities, there was limited movements on the left shoulder due to non-use and fracture. He was of the view that this would completely disappear after some months.

In 1991, Dr. Gende reviewed the conditions of the plaintiff. He noted in his report dated 15 April, 1991, that despite the fact that the plaintiff did not suffer a dislocation or fracture, she had developed pereathritis shoulder and residual disability. He further noted no structural deficiency but a functional loss of 5%. I assume the doctor meant that the plaintiff had suffered a 5% loss of the efficient use of her right shoulder. There is evidence that she continued to obtain medical treatment till early 1994.

On 10 March, 1994, the plaintiff was reviewed by Dr Takitaki who noted that the plaintiff had tenderness over the deltoid insertion and over the lateral aspect of the 9th, 10th and 11th ribs with moderate degree of tender left shoulder joint. There was no fracture or abnormality. However, Dr Takitaki assessed the loss of efficient use of the left shoulder joint at 20%. It is obvious to me therefore that, as a direct consequence of the accident, the plaintiff has suffered residual disability on her left shoulder and has 20% loss of the efficient use of that shoulder.

Counsel for the plaintiff, in his written submission filed on 25 August, 1995, has referred to some comparable verdicts on injury cases decided between 1980 and 1991. The awards in those cases ranged between K6,600.00 to K38,000.00.

The plaintiff was aged about 42 years at the time of accident. She was married with five children. At the time of accident, she was employed as a nurse at Taraka Health Centre. She is about 49 or 50 years old now. She is unable to discharge some of her usual domestic chores because of the residual disability. She stated in her affidavit that her personal life has been interfered with as a result of the accident. She cannot do heavy laundry by hand, such as blankets and she cannot carry heavy weights. She cannot put a mattress out in the sun. She cannot use an axe to chop firewood. She cannot work in the garden as she cannot use an axe to chop firewood. She cannot work in the garden as she cannot use a spade or a knife to cut things. She does not have full movement of her left arm and hand and she suffers continual pain. I am satisfied, on this evidence, that the plaintiff has lost the enjoyment of life.

Awards increase over the years to take into account inflation. In this case, I consider that an award of K25,000.00 is not unreasonable in the circumstances. I therefore assess damages at K25,000.00 for pain and suffering and loss of amenities.

There is evidence that she had incurred the sum of K306.00 in attending hospital and other expenses, however, there is no conclusive evidence as to what some of these expenses were for. Although, this amount is not disputed, it is my view that the plaintiff must provide evidence of what these expenses were for. I would reduce this amount by K106.00, therefore she would be only entitled to K200.00 in special damages.

I award interest at 8% from the date of the writ to the date of judgment, and of course, as cost follows the event, she will have her costs.

The awards therefore are as follows:

I order that the Third Defendant pays the plaintiff’s costs of these proceedings to be taxed, if not agreed upon.

Lawyer for Plaintiff: Warner Shand