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Taylor v Craig [1966] PGSC 15 (4 December 1966)

IN THE SUPREME COURT OF
THE TERRITORY OF PAPUA
AND NEW GUINEA

Coram: Minogue J.

BETWEEN

FERGUS FISH TAYLOR
Plaintiff

- and –

J.F. CRAIG

ACTION

This is an action for damages for negligence brought by the plaintiff as a result of injuries suffered by him when a car ran off a bridge and fell to the riverbank some 20ft. below near Gurney in the Milne Bay District in the early morning of 4th December 1966. When the action came on the hearing liability was admitted on behalf of the defendant and the action proceeded on the issue of damages.

The plaintiff came to this Territory in March 1966 on secondment from the Commonwealth Public Service to the Administration. Prior to his coming here he was employed as a Clerk Class I (which I understand is the base grade) in the Postmaster General's Department in Launceston. He saw few opportunities for advancement in this Department because as he said most of the men in supervisory positions were young men and it would be many years before he could hope to move out of Class I although he would receive annual increments which would eventually take him to the top of this particular class. He decided to come to this Territory to better himself financially and because of his view that he would achieve earlier promotion. Shortly after his arrival he was posted as a District Accounts Clerk with the Department of Works at Alotau, the new headquarters for the Milne Bay District. His hopes for advancement were soon realised. After two months he was temporarily promoted to the position of District Works Office Manager and was second in charge to the District Works Officer. In this position he was in charge of accounts and was responsible for staff supervision and training, for the Departmental records for the District and he was also the District Works paymaster. For this work he received what is known as a Higher Duties Allowance and his net wages amounted to $64.70 per week, an amount which of course included a Territory allowance. In June 1966 he had his twentieth birthday.

On the 4th December the vehicle in which he was travelling ran over the edge of a bridge on the road between Gurney and Cameron Plateau. The vehicle fell some 20ft. to the riverbank below and the plaintiff suffered a fracture of the upper end of the right femur. He was eventually placed in a Landrover and driven some 16 miles to Alotau. Here, the only medical attention he was able to receive was from a nursing sister who gave him a pain killing injection at about 2.30 a.m. As soon as possible a boat was summoned from Samarai and he was placed aboard this at about 3 p.m and after a rough journey of about 4½ hours he arrived at Samarai. He was then taken to the European Hospital at Samarai but, then had to be taken in the Samarai ambulance to the Native Hospital for x-ray of his leg and hip. The journey to and from this hospital proved quite a saga as the ambulance broke down on the way and he had to be carried half the distance on a stretcher. He was at the native hospital for some three hours and then for want of an alternative vehicle was transported back to the European hospital on the tray of the Samaras garbage truck and was eventually bedded down in this hospital and given a further pain killing injection. Apart from the injection given at Alotau this was his first relief from the very severe pain which I am convinced he was suffering. On the 5th December a pin was inserted in the lower part of his leg, and skeletal traction was applied. For three months he remained in the Samarai hospital under traction without being able to move off his back or to turn from side to side. The weights used in traction shifted the pin in his lower leg which caused a number of local infections at the site of the head of the pin. I am convinced that he was in constant pain during this period although as he said he was given injections at the peaks of such pain. After three months he was lifted into a wheel chair and could move about. He remained in the wheel chair for approximately another three months, although towards the latter part of this period he was practising the use of crutches. He was discharged from the Samarai hospital on the 2^nd June and taken to Port Moresby where he was admitted to Port Moresby General Hospital and remained there until the 13th June under the care of Mr. Ian Reid. On the latter's recommendation he went back to his home at Launceston on the 13th June and has remained there up to the present time. In Launceston he has been under the care of Mr. Hogg, an Orthopaedic Specialist. He remained on crutches until about a month ago, since which time he has used a walking stick. In Launceston he has been daily undergoing, physiotherapy treatment at the Launceston General Hospital and has been trying hard to improve the use of his leg. The femur was fractured through the greater trochanter and there was and is a serious displacement of its shaft. The lower part of the shaft is overlapping the trochanter and union is taking place in that position although it is not yet complete. This has resulted in a permanent shortening of the right leg by 2½ to 3 inches and has further resulted in a gross limitation of movement of the leg. There is no abduction and only slight internal rotation. In the opinion of Mr. Reid it is likely that he will have to use a stick for the rest of his life. Both Mr. Reid, Mr. Hogg and Dr. Turnbull who examined the plaintiff on behalf of the defendant, are of the opinion that he will not be able to resume employment for at least six months. The union is not yet complete and apparently there is some muscle tissue hindering such union. The plaintiff suffers intermittent pain both in the hip joint and in the knee. The latter tip Mr. Reid thinks may be caused by any of three factors or a combination of them - referred pain from the hip joint, thigh muscle wastage which could affect the stability of the joint or osteo-arthritic changes in the joint itself. He is of the view that an ostectomy will have to be performed on the plaintiff's femur during his lifetime. This operation involves the splitting of the bone below the fracture site and realignment to relieve the pain in the joint. It would not cause any functional improvement or improve the joint as far as movement is concerned although it may reduce the shortening of the leg by about ½ inch, because the operation involves tilting the pelvis. He would put the success rate of such an operation at about 75 % and even then its effects are not always permanent. In his view, the earlier the age at which this is done, the less the chance of permanent relief. He would like to see such an operation put off as long as possible and certainly would not like to see it performed until the pain in the joint is disabling. He also thought that if the operation were unsuccessful, and arthrodesis may be necessary. This of course would involve the fixing of the hip joint and the almost complete reduction of-such movement as he has in it. It is possible too, though not likely, that operative procedures may be needed in the knee joint. An ostectomy would involve about twice that time in hospitalisation and convalescence. I should add that an operation now to reset the fracture and so realign and straighten the leg, is out of the question.

The plaintiff is presently suffering from the following disabilities: he has difficulty and resulting pain in walking up and down hill, and more particularly in walking up and down steps. The latter is minimised if there is a handrail. He also has difficulty and pain when getting in and out of cars and into and out of bed and bath. In all these operations he has to manipulate his right leg by hand. He suffers pain in his hip on walking for more than a couple of city blocks and on sitting or standing for any length of time. In Mr. Reid's opinion these disabilities will improve with time but will not disappear. He will always have to use a stick when walking and will have to take care particularly going down steps. For example, he will always have to put his left leg on the lower step and then bring the right leg down beside it before proceeding to the next step. This will affect him also in public transport. He will always be affected by changes in weather and the leg shortening is permanent.

He wears and will always have to wear a surgical shoe on his right foot.

The question is what damages are to be awarded to the plaintiff. Special damages have been agreed at $4,089. These include his hospital and medical expenses and his loss of earnings to the time of trial. Whilst strictly speaking such part of these damages as have accrued since the date of issue of the Writ do not form part of these special damages, I think it convenient to treat them as such. However I think a mistake has been made in the calculation in that a claim has been made: for loss of wages from the date of the occurrence of his injuries and covering the period when he was in hospital at Samarai. I do not think he is entitled to his full wages for this period because of course out of those wages had he not been injured, he would have had to keep himself. Accordingly I think it proper to deduct a sum which I think I have generously estimated at the rate of $10 per week for this period and accordingly reduce the amount of special damages to $3,825.80.

With regard to his general damages, some items are relatively easy of calculation. He is of course entitled to an amount for future economic loss. In the first place I allow him an amount for his continuing loss of wages until he is ready to begin work again in what has been estimated as six months time. In this regard he will have to pass a medical examination by the Commonwealth Medical Officer in Launceston, but Mr. Reid thinks that he will be passed as fit for clerical duties. Under this head I allow him $1,550 which is calculated by allowing him 13 weeks at the lower rate which, I have estimated at %55 being the rate at which the would have been entitled at the expiration of 21 months of service. A difficult question arises with regard to continuing economic loss after he resumes employment in the Commonwealth Public Service. Mr. Cory submitted that it was reasonable to anticipate that this young man would have remained in the Territory for some years, where he could earn a higher rate of wages and there were good opportunities of promotion. The plaintiff himself told me that he enjoyed the life up here and as of December last was convinced that he would stay on for at least another term, that is a term of two years which was as far ahead as he had then contemplated his immediate future. With his disability the kind of work he was doing is now out of the question. It involved a good deal of walking, getting into and out of vehicles, including the jumping on and off trucks and in short requires an active and vigorous young ma. In view of his youth and the fact that he had came to the Territory to better himself, I think it not unreasonable to assume that he would have remained for at least another four years. If and when he returns to a clerical position in Tasmania, his net wage will be between $42 and $43 per week. So that over four years following on his resumption of employment he will probably be earning $22 less per week than he could earn in the Territory. Over four years this would amout to $4,576. Allowing for differences in living costs and for his receiving a lump sum now, I propose to include a sum of $4,000 under this head. I should allow him also a reasonable amount to cover the costs the will incur in such operation as I think he must eventually have. I adopt the submission of Mr. Cory that here I should take the mean between the costs of an ostectomy and an arthrodesis and I accordingly include in my award an amount of $1, 200. There is also the cost of surgical shoes which he will have to purchase for the rest of his life and the evidence is that the injury was not and will not diminish his expectation of life. On this score I include the sum of $420.

There remains still the most difficult question. What am I to allow him far what is commonly referred to as pain and suffering and loss of amenities or enjoyment of life. The basis upon which awards are to be made in respect of these matters has been much discussed in recent times and it has been said that damages under these headings are not really damages for a calculable monetary loss suffered by a plaintiff but rather an award made by way of solatium to compensate as well as can be for a person's inability to enjoy, in the way that he formerly could, whatever life should offer. What is the position here? That the plaintiff has suffered a great deal of pain, particularly in the early stages, is undoubted. I am also satisfied that he is currently suffering pain and discomfort and although this will stabilise to some extent, as far as one can see into the future, he will have pain and discomfort for some years that pain becomes unbearable. Implicit in his view is the advice to bear such pain as long as possible. But of far great consequence in my view are the other deprivations which the plaintiff has suffered and will suffer. At the time of his being injured he was a young man of twenty, enjoying life to the full, happy in his work, playing and enjoying his cricket matches and his social games of tennis and obtaining pleasure from his hunting forays with his companions into the bush country surrounding Alotau. He has not sought to put forward that he excelled in sport and regarded himself as just a fair average participant but he has lost for all time his capacity to take part in any such activities. He has lost most if not all the enjoyment that goes with early manhood and has been changed from a vigorous active young man into a cripple. I have no doubt that he will eventually learn to adjust himself to his limitations but I cannot see him ever being able to engage pleasurably in the sort of pursuits that men are able to engage in through youth and middle age. Although I am of the view that he will be able to obtain clerical employment, even in this sphere he will be limited. As he told me, in his previous employment in Tasmania with the Postmaster General's Department, he was required t walk up and down two flights of stairs five or six times a day. I do not think he will ever be able to undertake this type of work without pain and discomfort. I have not allowed anything for economic loss beyond the period of four years which I have mentioned, because he impresses me as being the type of young man who will strive to better himself educationally and so widen the range of gainful employment. He has passed the School "A" Technical Schools Examination in Tasmania and had begun his studies in accountancy and commercial law before coming to the Territory but in whatever way he is able to sharpen his ability to improve his position, he will be left with what Lord Reid described in H. West & Son Ldt. V. Shepard (^[1]) as:-

"the loss of those opportunities to lead a full and normal life which are now denied to him by his physical condition - with the multitude of deprivations and even petty annoyances which he must tolerate."

Doing the best I can to recompense him for the pain and suffering which he has endured and will endure and for his loss of enjoyment of what are often called compendiously the "amenities" of life, I would assess the amount of $16,000 as being fair and reasonable in the circumstances. Whilst I do not think it really necessary to further particularize this amount, perhaps I ought to say that I had in mind the sum of about $3,000 for the pain and suffering component of this loss.

In the result my ultimate award to the plaintiff will be $27,000 and there will be judgment for that amount with cost.

^[1] [1963] UKHL 3; (1964) A.C. 326