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Aspinall (by his next friend David Lee James Eastwood) v The State and Aspinall [1979] PGLawRp 701; [1979] PNGLR 642 (18 December 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 642 - Brendon John Aspinall by his next friend David Lee James Eastwood v The State and Terrence John Aspinall�

[1979] PNGLR 642

N211

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BRENDON JOHN ASPINALL (BY HIS NEXT FRIEND DAVID LEE JAMES EASTWOOD)

PLAINTIFF

V

THE GOVERNMENT OF PAPUA NEW GUINEA

FIRST DEFENDANT

AND TERENCE JOHN ASPINALL

SECOND DEFENDANT

Lae & Waigani

Wilson J

24-29 January 1979

23 July 1979

18 December 1979

DAMAGES - Personal injuries - Particular awards of general damages - Head injuries - Brain damage - Fractured jaw - Fractured foot - Permanent intellectual impairment - Mild mental retardation - Special schooling required - Male child aged eight (thirteen at trial) - Potential capacity as semi-professional worker or businessman reduced to level of labourer or storeman - Award of K57,562.50 ($76,750) general damages including K48,000 ($64,000) for reduced earning capacity and K1,125 ($1,500) for future special education expenses.

DAMAGES - Measure of damages - Personal injuries - Loss of earning capacity - Tax position to be taken into account.

DAMAGES - Measure of damages - Interest - Personal injuries - Court discretion - Interest awarded on special damages - Interest awarded on amount allowed for pain and suffering etc. - Interest allowed between date of writ and date of judgment.

The plaintiff a boy aged eight (thirteen at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury was a head injury including lacerated forehead, fractured jaw and damaged teeth, and a fractured foot. Apart from a slightly flattened face there were no physical disabilities but it was established that the plaintiff had suffered brain damage which reduced his intellectual capacity and particularly his memory and concentration powers, and put him at a severe disadvantage in the normal school environment. The plaintiff�s work prospects alter finishing his education at a special school lay only in the area of labouring or semi-skilled work whereas without his intellectual impairment it was anticipated that he would have became a semi-professional worker or businessman.

Held

N1>(1)����� Damages for pain and suffering, loss of amenities etc., should be assessed at K9,000 ($11,250).

N1>(2)����� In assessing damages for personal injuries under the heading of loss of earning capacity, the income tax which the plaintiff would have to pay is to be taken into account.

Kerr v. Motor Vehicles Insurance (P.N.G.) Trust, [1979] P.N.G.L.R 251, followed.

N1>(3)����� Damages for future loss of earning capacity on the basis of the differential between a semi-professional worker or businessman and a labourer or storeman should be assessed at K48,000 ($64,000).

N1>(4)����� A sum of K1,125 ($1,500) should be allowed to cover the likely cost of additional tuition fees and travelling expenses.

N1>(5)����� Interest at a rate to be determined on the sum of K9,000 ($11,250) representing general damages for pain and suffering etc. should be allowed as from the date of the writ to the date of judgment.

N1>(6)����� Interest at half the rate to be determined should be allowed on the amount of special damages awarded as from the date of the writ to the date of judgment.

Jefford v. Gee [1970] EWCA Civ 8; [1970] 2 Q.B. 130;

Cookson v. Knowles [1978] UKHL 3; [1978] 2 W.L.R. 978;

Thompson v. Faraonio (1979), 54 A.L.J.R. 231; and

Meaney v. Hastings Deering (Pacific) Ltd. [1979] P.N.G.L.R. 170, referred to.

Appeal

This was an action in which the plaintiff (by his next friend) claimed damages for personal injuries arising out of a motor vehicle accident which occurred in May 1974.

Counsel

M. White, for the plaintiff.

G. Delaney, for both defendants.

Cur. adv. vult.

18 December 1979

WILSON J:� The plaintiff, who was born on the 13th April, 1966, suffered severe facial and head injuries and a foot injury in a motor car accident which occurred on 15th May, 1974. The plaintiff had been a passenger in a car driven by his father, the second defendant. That car collided with another vehicle owned by the first defendant. At the time of the accident the plaintiff was aged eight years.

As liability is agreed between the two defendants, the matter came on before me for assessment of damages. In due course judgment will be entered in favour of the plaintiff against both defendants for the amount of damages assessed.

During this quite lengthy hearing I had placed before me a considerable amount of documentary evidence and I heard the oral evidence of ten witnesses for the plaintiff and two witnesses for the defence.

The plaintiff is the second eldest of four children of Australian parents. The Aspinall family, after living on a grazing property in Queensland for a number of years and then on a grain and cattle-fattening property, also in Australia, moved to Papua New Guinea in about October 1973, since when Mr. Aspinall has had a number of responsible positions in the rural and vehicle industries and more recently as manager of the agricultural and equipment division of Ela Motors Ltd.

Prior to the accident the plaintiff was an average pupil. In this respect I accept the evidence of the plaintiff�s mother and the interpretation which Mr. Zimmerman, the psychologist, put upon the plaintiff�s school reports for 1972 and 1973 and his progress generally during the two and a half years of schooling he received prior to the accident. In so far as some evidence pointed to the plaintiff being, if anything, below average in some respects, there was insufficient evidence to lead me to conclude that the plaintiff was in any sense retarded. The fact that the plaintiff and his younger sister, Allison, were at the same academic level in the period just prior to the accident and were competing with each other is to be explained by reference to their peculiar education situation doing correspondence classes under their mother�s supervision.

The accident was a violent one. The plaintiff was thrown forward from his position on the front passenger�s seat of his father�s car and he struck his face and head on the dashboard. He sustained a cut on the chin, a noticeable injury to his forehead, a fractured and dislocated jaw, a lost tooth and a greenstick fracture of the left foot. I am satisfied on the balance of probabilities that the plaintiff was knocked unconscious at impact but did not remain unconscious for long. I accept that he had pre-traumatic amnesia lasting a few minutes and post-traumatic amnesia lasting about one hour. He was brought to Lae and admitted to hospital; it was a slow and painful trip to hospital; he was dazed and in shock.

Upon the plaintiff�s admission to hospital he was treated for a fractured mandible to the left of the mid-line, bilateral condylar fractures and dislocations, severe contusion of the face, a moderately severe head injury in the region of his forehead, and contusion of the left foot. I find that, unusual as it is for a person to suffer brain damage following trauma involving only a short period of unconsciousness, the plaintiff did suffer brain damage. Even Dr. Ohlrich, the main defence witness, conceded that such damage was possible in such circumstances.

The plaintiff suffered severe pain in the weeks following the accident, and he was in a dazed condition for the first few days. Being in a quite critical condition at first, he needed considerable care and attention. What followed was a lengthy period of treatment involving much pain, discomfort and frustration. He underwent two operations under general anaesthetic (one on 20th May, 1974, at Angau Hospital, Lae, when his jaw was wired up, and another on 17th July, 1974, at Holy Spirit Hospital, Brisbane, to remove the wiring from his jaw).

It was nearly two months before the plaintiff could walk reasonably satisfactorily. His injured foot had prevented him walking before that. His only permanent problem in the region of his left foot is the inconvenience associated with him having to buy larger sized footwear than previously.

As the plaintiff�s jaw was being treated, he had difficulty and experienced frustration with such activities as eating and talking. He was often tired and listless.

The plaintiff has been left with a slightly flattened face on one side. This was due to angulation in healing of the tempero-mandibular joint.

The major permanent disability resulting from the accident is his intellectual impairment. I prefer the evidence of Dr. B. E. Ariotti, the neurologist, and Mr. Zimmerman, the psychologist, to that of Dr. Ohlrich the neurologist, and Mr. Joyce, the psychologist.

I found Dr. Ariotti to be an impressive and careful specialist. I examined his evidence with particular care, especially because it appeared that some of the background information that was supplied to him was not wholly accurate (e.g. the length of time the plaintiff was unconscious immediately following the accident). I find myself persuaded by his expert opinions. In particular, I accept the following opinions:

�General examination was negative, but two abnormalities were found in the neurological examination. These were the presence of palmo-mental reflexes and the extensor plantar responses. These signs are found in brain damage of more than a mild severity ... Tests for immediate recall and retentive memory was grossly impaired. This was the most obvious disturbance by far on the examination ... It is my opinion that, as a result of this head injury, he has had severe defects in the cognitive-perceptive faculties. These will be permanent. In addition, the tests applied indicate that the most marked disturbance involves memory, namely the immediate recall and retentive memory patterns. This indicates that there has been damage to the area of the brain known as the hippocampus. It is very hard to see how this trouble could be remedied. The disturbance will greatly impair his capacity to learn and absorb, new information of any type ... The consequences for (secondary education) and consequently a career will be catastrophic.�

� Exhibit K.

�I find it very difficult to imagine that he�ll be able to do more than labouring. I think the disorder of memory, although quite discreet, is crippling.�

� Oral evidence.

�... my feeling is that the damage has been quite discreet�it doesn�t necessarily reflect gross damage to the brain taken as a whole.�

� Oral evidence.

Unusual as the plaintiff�s brain injury was after such a blow to the forehead, I accept Dr. Ariotti�s evidence and attribute the damage to the boy�s hippocampus to the heavy blow to his forehead in the accident. I accept Dr. Ariotti�s opinion that damage would have been produced by �the contre-effect�.

It is significant that it was Dr. Ariotti�s opinion that specific disability of the type he observed in the plaintiff only occurs in two situations � injury and alcoholism. As the latter problem had no application in the instant case, my acceptance of Dr. Ariotti�s evidence has led me to the finding, on the balance of probabilities, that the head injury sustained in the accident caused the plaintiff�s disability and consequential intellectual impairment. There was no other evidence (which I could accept) of any other cause and no evidence at all of any other trauma that the plaintiff had sustained which could have accounted for the disability.

Mr. Zimmerman, the psychologist, was most convincing in his oral evidence and in his report (exhibit L). Based upon his evidence I find that the plaintiff has suffered �significant intellectual loss because of the accident�. As a consequence, the plaintiff is �severely handicapped in a normal school environment�; he is �at the upper level of mild mental retardation�. I accept Mr. Zimmerman�s opinion that �the implications of this are serious�. Mr. Zimmerman characterised the plaintiff�s disability as intellectual impairment rather than specific learning disability.

I prefer Dr. Sundin�s reports (exhibits I and J) to the opinion of Dr. Lyness (who was not called) contained in exhibit H, and I find that the plaintiff�s E.E.G. in November 1976 was �grossly abnormal�. As Dr. Ariotti put it, the second paragraph of Dr. Lyness� report:

�... describes definite abnormalities in some detail�particularly the sharp waves seen in the front part of the brain ... From the description I would say it indicates definite frontal lobe damage.�

� Oral evidence.

�I think that E.E.G. report shows an abnormality which is only explicable by scarring of the brain and that indirectly shows that, although the head injury appeared trivial, it was enough to scar certain portions of the brain at the time.�

� Oral evidence.

Mr. J. T. C. Joyce, the psychologist, gave evidence for the defendants. Mr. Delaney, for the defendants, sought to rely on Mr. Joyce�s evidence but, in doing so, he, with respect, misunderstood (as Mr. Joyce appeared to do) the standard of proof in a civil case of this kind. Mr. Joyce�s evidence may be summarised in the following answer he gave:

�My opinion was that there was no evidence that any intellectual impairment or brain damage could be attributed to the motor accident in an unequivocal way.�

That evidence, if accepted, would mean that the plaintiff would fail in proving the causation aspect of his claim beyond reasonable doubt. But that is not the correct standard of proof in a case such as this; the standard is on the balance of probabilities. Mr. Joyce�s answer, as quoted above, whilst clearly denying the existence of conclusive proof, is of no assistance one way or the other in deciding the probabilities. When being cross-examined, Mr. Joyce used the phrase �beyond reasonable doubt� on a number of occasions thereby reflecting either his own misunderstanding of the correct standard of proof or a disinclination on his part to acknowledge the full effects of the accident.

I was not persuaded by the reasons advanced by Mr. Joyce with regard to the causation aspect and, furthermore, some aspects of the history prior to the accident which he relied upon were inaccurate or inadequate, such as, for example, the alleged slowness in learning to speak sentence and the circumstances of the regrading in 1974.

In cross-examination Mr. Joyce made a number of concessions, the most important one being his opinion that probably trauma was the cause of post-trauma motor co-ordination deficiency, if there was no such deficiency (and I find, on the evidence, that there was none) before the accident. He had mis-read �S� in the plaintiff�s school report as �satisfactory lack of attainment� instead of �satisfactory level of attainment�; that misreading affected the weight to be given to his evidence.

Dr. Ohlrich, the neurologist, prepared for the solicitors for the first defendant a very guarded report in November 1978 (exhibit 3). He concluded that report:

�On the information I have it seems that Brendon�s head injury may not have been major and he may not have sustained significant permanent brain damage as a result of the accident in 1974. In the absence of more information, I cannot provide a more accurate assessment than this ...�

(The emphasis is mine.) Even in his later report, dated 6th January, 1979, there was some hesitation on Dr. Ohlrich�s part. He said:

�In summary I think it is unlikely that Brendon�s head injury in the motor vehicle accident in May 1974 was responsible for the impairment in his intellectual capacity which has been demonstrated. I think it is more likely that Brendon�s intellectual impairment was present before the accident in 1974.�

It is to be noted that he did not say that the plaintiff could not have received the intellectual impairment in the accident.

That Dr. Ohlrich�s opinion was one expressed with some hesitation was confirmed in the first question and answer of cross-examination. The doctor was asked:

�Doctor, we�ve heard certain evidence from other people and an important part of the trial is whether Brendon has an intellectual impairment caused by trauma in the accident�please enumerate the points upon which you rely to hold your opinion that the accident did not cause the impairment?�

Dr. Ohlrich replied:

�Could I correct counsel on that last statement�I said, �I think it is unlikely that Brendon�s head injury in the motor vehicle accident in May 1974 was responsible for the impairment in his intellectual capacity�� that is a little different from what you�ve put to me.�

As was the case with Mr. Joyce, Dr. Ohlrich based his opinion on certain material, part of which was inaccurate. He said he relied on one report only to indicate the possibility of impairment before the accident, i.e. the report from the Primary Correspondence School in Brisbane which made reference to the plaintiff�s re-grading to grade 2 in February 1974. He was unaware that the reason for the re-grading was not related to the plaintiff�s intellect. When asked to assume that before the accident the plaintiff was of average intelligence (i.e. a fact which I am satisfied has been proved to the requisite extent), Dr. Ohlrich did explain the issue clearly in the following manner:

�Brendon is of average intelligence before the accident�that is the assumption. After the accident he has been shown to me in the psychological reports and in my own testing to be below average intellectually and in terms of his memory capacity. There was no injury or disease process which affected his brain between the pre-accident time and the time of the psychological tests. Therefore, there is a reasonable assumption that the accident would be the causative factor.�

After some quite extensive cross-examination, Dr. Ohlrich whose main opinion was based on the assumption that there was pre-accident intellectual impairment, was led to put a qualification on his opinion. He said:

�My opinion is that I don�t know what Brendon�s pre-trauma intellectual level was like, and this report (exhibit M) hasn�t particularly helped.�

In reaching my conclusions (based largely on the plaintiff�s witnesses) regarding the plaintiff�s likely achievements if there had been no accident, I have not relied upon the evidence of the achievements of his parents or of his sister. As Mr. Zimmerman pointed out, one needs to be careful about relying on such evidence �because of the uniqueness of each individual�.

I therefore conclude, on the balance of probabilities, that the plaintiff, an average pupil before the accident, suffered brain damage in the accident and has been left with permanent intellectual impairment. He is �at the upper level of mild mental retardation�.

The plaintiff is to be compensated for his pain and suffering (past and future), disability and loss of amenities of life. The injuries to the forehead, jaw and foot were serious at the time and the cut on the chin was obvious for a while. However, he has recovered from each of these direct injuries, and, apart from minor residual problems, such as soreness of the face and jaw after physical exertion and clumsiness, is not significantly disabled on account of those injuries. I accept that there was a considerable amount of pain and discomfort that was experienced, but it is not a continuing problem. I take into account the possibility (relatively slight) of the plaintiff suffering from arthritis and the possibility (remote) of the plaintiff suffering from dislocation or ankylosis of the jaw or finding himself left with a smaller than usual jaw. The plaintiff has experienced (and will continue to experience) frustration and a loss of enjoyment of life as a consequence of his intellectual impairment. The general damages for all these matters must be substantial. The sum I have assessed is K9,000.

Included in the overall general damages assessment there must be an amount representing loss of future earning capacity. This is a large amount for a boy as young as the plaintiff and for a boy with an impairment of this magnitude. His career prospects are adversely affected.

It is, of course, a matter of speculation as to how difficult it will be for the plaintiff to find labouring or semi-skilled employment or find work as a storeman or the like. Professional jobs, semi-professional jobs and work in a trade cannot realistically be considered. But for the accident, I think he probably would have achieved a reasonable level in business or in a semi-professional job. I do not think he was destined to be a professional man or a top-grade tradesman. I am satisfied that the plaintiff will be very limited in the level and range of occupations that will be available to him. It is also hard to be precise about the differential between what he will earn and what he might have earned but for the accident. He is a pleasant and co-operative boy and strives very hard. Because of these characteristics, I think he will ultimately find satisfactory employment, but not without difficulty. I am sure he will continue to be helped by his devoted parents to whom much credit is due for the way in which he has coped with his disabilities to date.

The probabilities are that in 1980, the plaintiff will attend as a day student either a special school or opportunity school in Queensland whilst he boards with friends or relatives or he will attend a sympathetic boarding school in Queensland. His parents realise that special educational facilities of the required kind do not exist in Papua New Guinea at this time.

An opportunity class or a streamed class at an ordinary high school, though better than an ordinary class, would not be the best place for the plaintiff�s continuing education. On the evidence before me, the plaintiff needs a structured and remedial educational environment. The probabilities are that he will not be ready to enter the work force until he is aged about nineteen. Although, if he had not had the accident, he probably would not have entered the work force any earlier, the difference between the accident situation and the no-accident situation is that, on account of the accident, he will be remedially educated and unqualified, whereas, if there had been no accident, he would have matriculated or at least obtained his junior school certificate.

Regarding loss of earning capacity, the plaintiff will have diminished earning capacity from the age of about nineteen for the period of his expected working life (i.e. until about sixty-five), a period of forty-six years. A substantial discount will need to be made because the damages under this head will be paid some years before the time at which he would have entered the work force had he not been injured. If he had not had the accident and if he had matriculated and gone on to further studies with a view to improving his job opportunities, he might not have entered the work force until he was well into his twenties. I adopt thirty-five years as the appropriate term of years for a calculation.

What is the amount of the weekly loss that should be used in any calculation? In this context I am persuaded to adopt Mr. White�s submissions as to the various earnings of secondary school teachers, plumbers and bankers (any of which careers the plaintiff might have ultimately enjoyed but for the accident) and the various earnings of council clerks, general hands and clerks (any of which careers the plaintiff will, on the balance of probabilities, have to be content with in the light of the injuries he received in the accident). However, I adopt Mr. Delaney�s submissions as to the net earnings (i.e. gross income less tax) that should be taken into account before any differential representing the continuing loss is calculated, because of the recent decision of the Supreme Court in Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[dcccxix]¹�which is binding on me. In that case British Transport Commission v. Gourley[dcccxx]², a House of Lords decision which decided that loss of earning capacity is to be worked out on an after-tax basis, was applied, and Atlas Tiles Ltd. v. Briers[dcccxxi]³, was not followed.

I am persuaded by Mr. Delaney that I should have regard to the fact that overtime is generally available in semi-skilled positions, whereas it is either not available at all or infrequently available in teaching, managerial and clerical positions. I conclude on the material placed before me that the plaintiff (with his disability) is likely to earn in due course at current rates between $130 and $170 net per week in work as a storeman, clerk or labourer (or the equivalent). Had he not had the accident, he would have expected to earn at current rates between $250 and $290 net per week in work as a bank manager, teacher, plumber (or the equivalent).

For the purposes of calculating the continuing loss, I allow a figure of $120 per week, being the differential between $250 to $290 per week and $130 to $170 per week. I use an interest rate of eight per cent rather than six per cent as, except for the first few years until the plaintiff reaches the age of majority, the award will be under the management of the plaintiff or a member of his family and, under current conditions, relatively high interest rates can be obtained. At an interest rate of eight per cent, the amount of compensation appropriate to a loss of $120 per week for thirty-five years would be $75,474. From this figure some allowance would need to be made for unfavourable vicissitudes. I would allow $64,000.

It will be seen that I have adopted an approach to my task of assessing the plaintiff�s loss of earning capacity, along the lines of such authorities as Lubbering v. Bougainville Copper Ltd. [dcccxxii]⁴, Dessent v. The Commonwealth [dcccxxiii]⁵, and Griffiths v. Kerkemeyer [dcccxxiv]⁶.

Special damages have, with the exception of one item, been agreed. The agreed items of special damages are represented by $2,021.09 and K308.75 which total (after conversion of the kina to dollars at an agreed conversion rate of 1.25:1) $2,407.03. I allow an additional item representing the cost of employing a governess for six months viz. $1,040. Therefore, the total of special damages, agreed and allowed, is $3,447.03.

I include in the general damages award an extra sum of $1,500 being enough to cover the likely cost of additional tuition fees which will be incurred to ensure that the plaintiff is given every opportunity to achieve at the highest level possible and the cost of air fares to and from a non-secondary school which the plaintiff�s father�s employer is unlikely to cover under Mr. Aspinall�s service agreement.

Thus, the plaintiff�s entitlement to damages is as follows:

I will allow to the plaintiff interest at half the rate to be determined on the amount of the special damages award as from 23rd October, 1974 (the date of issue of the writ) to the date of judgment. I will allow to the plaintiff interest at the full rate of interest to be determined on the amount of $11,250 representing general damages for pain and suffering, disability and loss of amenities of life. I will not allow to the plaintiff interest on the amount of $65,500. I have applied those principles enunciated in Jefford v. Gee[dcccxxv]⁷, Cookson v. Knowles[dcccxxvi]⁸, and Thompson v. Faraonio[dcccxxvii]⁹. This last mentioned case was applied in Meaney v. Hastings Deering (Pacific) Ltd.[dcccxxviii]¹⁰.

As I will need to hear counsel as to the rate of interest to be applied, I will adjourn this matter for further argument. I will formally enter judgment and make an order for costs when the interest rate has been determined. Of course, the judgment will need to be expressed in kina.

Judgment accordingly.

Solicitor for the plaintiff: Gadens.

Solicitor for the 1st defendant: Charles Maino-Aoae, State Solicitor.

Solicitor for the 2nd defendant: Wayne J. McKeague.

[dcccxix] [1979] P.N.G.L.R. 251.

[dcccxx] (1956) A.C. 185.

[dcccxxi] (1978) 52 A.L.J.R. 707.

[dcccxxii] [1977] P.N.G.L.R. 183.

[dcccxxiii] (1977) 51 A.L.J.R. 482.

[dcccxxiv] (1977) 139 C.L.R. 161; 51 A.L.J.R. 792.

[dcccxxv] [1970] 2 Q.B. 130; [1970] 1 All E.R. 1202.

[dcccxxvi] [1978] 2 W.L.R. 978; [1978] 2 All E.R. 604.

[dcccxxvii] (1979) 54 A.L.J.R. 231.

[dcccxxviii] [1979] P.N.G.L.R. 170.