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Kaka Kopun v The State [1980] PGLawRp 620; [1980] PNGLR 557 (28 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 557 - Kaka Kopun v The State�

[1980] PNGLR 557

N263

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KAKA KOPUN

V.

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Waigani

Miles J.

10 September 1980

28 November 1980

DAMAGES - Personal injuries - Particular awards of general damages - Left arm injury - Fractures of lower arm and wrist - Permanent disability - Inability to grip etc. - Pre-existing disability of right arm - Fit for light work - Highland villager - Near subsistence and part coffee farmer - Single man aged twenty-seven (thirty at trial) - Award of K25,000 including K7,000 for future loss of earning capacity.

The plaintiff, a near subsistence and part coffee farmer aged about thirty and unmarried, claimed damages for personal injuries arising out of a fall whilst a detainee in a corrective institution. The principal injuries suffered were fractures of the left forearm and wrist resulting in a permanent deformity because of misalignment in union. The plaintiff who had a substantial and permanent pre-existing disability in the right arm, had in consequence of this accident a considerably reduced power of grip in his useful hand making it difficult for him to pick coffee, clear land, chop wood etc., unable to participate fully in many of the village activities expected of young men, but fit for some light work.

Held:

General damages should be assessed at K25,000, including K7,000 for future loss of earning capacity.

Trial.

This was an action in which the plaintiff claimed damages for personal injuries as a result of a fall from the roof of a shelter being constructed within a corrective institution.

Counsel:

W. Neill, for the plaintiff.

M. Fitzsimmons, for the defendant.

Cur. adv. vult.

28 November 1980

MILES J.: This was the first of a series of cases heard whilst on circuit in the Western Highlands and Simbu Provinces in late 1980 in which the court assessed damages for personal injury and death in actions brought by plaintiffs who were local villagers. From the evidence in all the cases I was able in the manner of a jury exercising its knowledge of local circumstances, to acquire a modest body of knowledge relating to such circumstances. Because of the comparative lack of case law on the assessment of damages in claims of this nature I will set out the principles on which I have acted in the present judgment without repeating them all in the judgments in the other cases.

The plaintiff in this case is a farmer from Tefla village, Ogelbeng in the Western Highlands Province. In January 1977 he was an inmate in the Baisu Corrective Institution near Mount Hagen. He was helping to construct a shade shelter there. He climbed on the roof of the shelter when it collapsed and he fell, injuring his left arm. He sues the State in respect of this injury. Liability for the injury has been admitted and the only function of the court is to assess the damages.

Prior to his incarceration the plaintiff was what has been called a �subsistence farmer�. This term does not appear to me to be strictly correct. As claims for damages on behalf of people like the plaintiff may become of increasing frequency and importance in Papua New Guinea, it is desirable to be precise about terminology. A purely subsistence farmer I take to be one who provides his own food from growing crops, hunting and gathering other sources of foods, fashioning his own weapons, making his own clothing and so on. At a bare subsistence level there will be no surplus production and cash income leading to cash expenditure will be non existent. It may be that in this sense there are very few purely subsistence farmers in this country. On the other hand there will be many people farming at a level slightly above subsistence who may be described as part-subsistence or near-subsistence farmers.

The plaintiff in this case was one who combined subsistence farming with the production of coffee on a small scale. According to the evidence he is the owner of two plots of land each about two or three acres in size which have been mostly planted to coffee but which can also yield sufficient vegetables for his own needs. The plaintiff is about thirty years of age and was unmarried at the time of his injury. It is unclear how he managed to work the land. I think he recruited the assistance of his brothers from time to time and he returned the assistance as and when required. At any rate he said that he used to sell coffee for K250 to K300 a time and sales would occur two or three times a year. In view of other evidence in this and other cases[dccc]¹�this seems to me a modest claim and I accept it. The land in question was acquired from his father in the customary way before the death of the latter. The plaintiff�s brothers have similar gardens which they work.

As a result of his injury the plaintiff suffered fractures in the bones of the left arm which he says have left him virtually incapable of any work at all. The impact of injury on a person who depends upon his own labours to derive a living from the land can be very severe indeed[dccci]². What has devastated the plaintiff in the present case is the fact that when he was a young boy he suffered injury to his right arm which left him with a substantial and permanent disability in that member. He already had that disability at the time he suffered the injury to the left arm in January 1977 for the consequences of which the defendant is responsible.

In his evidence the plaintiff said that he is unable to do hard work because of pain in the left wrist. He cannot grip the handles of a spade or hold an axe. When he tries to lift something he feels pain in the elbow and wrist. When he carries out this sort of activity the wrist gets swollen. He does not use his right hand at all because since the injury when a boy he became totally used to using his left hand. He is not able to pick coffee because the trees on his land are tall. He is unable to drag the branches down with a stick. The land is becoming overgrown and he cannot clear it to grow vegetables. He has four brothers who are married and who are all busy with their own families and plots of land. His father is dead and his mother looks after him by feeding him taro, water and sometimes vegetables.

In cross-examination the plaintiff told of the earlier injury to his right hand which apparently occurred in a fire. The fingers were fused together and had to be separated by surgery. There is substantial loss of grip in the right hand. The plaintiff owns axe, spade and bush knife but they lie idle at home whilst he cannot use them. His brothers sometimes treat him to a visit to the village club where he is not a member. He readily agreed that he has been �sitting around the village� for the past few years since the accident in the gaol. He said �During the week I think I should do something but because of my hands I can�t and I feel sad�. He readily agreed too that he had not sought work as a labourer in some sort of light work partly because of his disability and partly because he is a landowner and not a labourer. I rather gathered that it had never entered his head to seek employment until he was asked about it in cross-examination. He has never been to school.

It was put to the plaintiff that he should employ labourers to keep his coffee gardens going and his reply was that he had no money to pay labourers and that he did not expect that his brothers would be in any position to lend him any for that purpose. He said that his mother knows of his disability and does not ask him to do anything around the garden.

Mr. Neill who appeared for the plaintiff called in support Mr. Raphael Tolmga, Assistant Secretary of the Division of Provincial Affairs in Mount Hagen and a field officer who regularly visits the villages in the area. Like the plaintiff he speaks Melpa. His evidence was most helpful in relation to the question of the plaintiff�s economic loss but he also spoke of other matters which are relevant to general damages.

Mr. Tolmga�s idea of a subsistence farmer was one who derives his income from the sale of vegetables and coffee over and above what he and his family retain for their own needs. As I have explained this really seems to be directed towards a part-subsistence farmer or a near-subsistence farmer, as I think the details of Mr. Tolmga�s evidence show. The effect of his evidence was that a near-subsistence farmer working for himself alone is able to support himself on the food he produces and the cash derived from the small surplus available for sale to others. That cash is sufficient to satisfy minimum needs for clothing, transport and sundry items. Mr. Tolmga estimated that the value of the food produced and consumed by the farmer alone would be about K10 per week and the value of the other basic needs which could be satisfied by farming at this level would be about K5 per week, putting a total value on his labours of K15 per week.

Turning his attention to a family unit of a man, working wife and two dependent children, Mr. Tolmga was of the view that such a family would be able to exist at a near-subsistence level of about K35 per week. The division of labour would be so economically beneficial that the productiveness of the husband and wife working together would be more than twice that of the husband alone. The husband could be expected to attend to the heavier work in the garden and the wife would be free to take the produce to market as well as assisting in the garden.

According to Mr. Tolmga, who cited figures which came from the Department of Primary Industry, a well managed coffee garden about the size of the plaintiffs and situated in the Western Highlands would yield a gross income of up to K8,000 per annum for first grade coffee. Land which was not so well managed or which yielded a lower grade product might yield about K4,000 per annum. The greater the outlay by the farmer the greater was the likely return, so that where the land yielded the maximum income the farmer would be expected to have made maximum use of pesticides and fertilizers. Where the land was farmed extensively the farmer would bring onto his farm one or two labourers who might come from Enga or the Southern Highlands. The cost to the farmer each year would be about K200 cash to the labourer, plus a pig, plus his keep. I estimated that this would mean about K10 to K20 per week for labourers depending on how long the farmer needed to employ them.

Much of the above is not very relevant to the present case because the plaintiff on his own account was making a very modest income indeed from his coffee farming, without economies of scale or the benefits which might have accrued from expenditure on such aids as pesticides and fertilizers or hired help. I would assess his cash income from coffee as K800 per year from which I am obliged to make some deduction for tax,[dcccii]³, say K50, leaving a net sum of K750 per annum or K15 per week. Together with the assessment of K15 per week which I have put on the plaintiff�s near-subsistence farming this gives an earning capacity of K30 per week.

Mr. Tolmga also gave evidence of the relationship between a Western Highlands village community and a person in the plaintiff�s predicament. Such a person will be unable to respond to the community demands for contribution to bride price and other forms of compensation which the community will be obliged to pay from time to time. He will be unable to contribute to moka and other forms of gift exchange. If he contributes what he can, apparently there is not a great deal of resentment against him. But a person in the plaintiff�s present position who can contribute nothing will feel a sense of shame. If he is permanently disabled and the community realizes there is nothing he can do to make his contribution they may �forgive him and accept him� but where like the plaintiff he is likely to receive a sum of money such as award of damages he will have to buy his way back into favour of the community.

These matters were to some extent corroborated by Mr. Namba Noke, a clerk in the Public Solicitor�s office who comes from a clan in the Ogelbeng area which is associated with the plaintiff�s clan. The plaintiff�s clan claims about a thousand members. The parents used to arrange marriages but no longer do so. A girl favours a man who is well educated but if he is not she prefers one who can �do all the work�. It is somewhat unusual for a man to remain unmarried at the plaintiff�s age.

Medical evidence was given by Dr. D. S. Beavis, a doctor with long experience in Papua New Guinea and the medical superintendent of Mount Hagen Hospital since 1974. The medical history of the plaintiff was rather sketchy as the hospital records have been destroyed in a fire. However the doctor had some definitive notes dated October 1977 and had examined the plaintiff on the day of giving evidence in order to bring himself up to date. On the earlier date the plaintiff was found to have a deformed left forearm with loss of rotation, resulting from a fracture of the radius in two places and a further fracture of a bone of the wrist with minimal involvement of the wrist joint. The prognosis was originally optimistic apparently because of a general scepticism about detainees and presumably their proneness to exaggerate injury. However the later examination by Dr. Beavis indicated a substantial disability. X-Rays were taken which confirmed the concavity or misalignment of the bone. The doctor thought that this was suggestive of overlapping of the bone fragments with consequent likelihood of associated muscular damage. The muscles used for flexing fingers are controlled from this site. The power of grip was reduced and there was a likely source of pain in the wrist from the fracture on the surface of the wrist bones. Dr. Beavis thought the plaintiff had lost forty to fifty per cent of the use of his left forearm. The condition cannot be improved by further surgery. He confirmed that there was also a similar degree of disability in the right hand due to extensive scarring over the back of the hand and the front of the wrist involving the tendons and perhaps muscles. Dr. Beavis found that the plaintiff was however fit for some light work. It has been the doctor�s experience that villagers suffering relatively minor injury tend to sit around for no apparent reason instead of getting back to work[dccciii]⁴. Whilst the present plaintiff has suffered much more than a minor injury he is in clinical terms capable of more activity than he realizes.

On these facts is there anything special about the principles of assessing damages which are to be applied to them? As was said in Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[dccciv]⁵: �... over the years, even without legislation, a pattern of verdicts in damages will emerge here which may differ from other countries ...�

However at the present time there is little in the way of a body of case law in Papua New Guinea which relates to the assessment of damages for personal injuries sustained by persons living in a village environment and earning a living from the soil or by raising animals or by hunting or by a combination of those activities. Even in countries where actions for damages for personal injuries provide the bulk of the work for the civil courts the difficulties in assessing damages for self-employed persons are well recognized[dcccv]⁶.

What has happened in recent years in Papua New Guinea is that there have been a number of decisions in which damages have been assessed in respect of injured expatriates. Such persons have usually been Australians, working for salaries, often at a rate higher than they might expect in their home countries and employed only temporarily in this country, often by companies which operate internationally. The situation of these plaintiffs was described by Minogue C.J. in The Administration of Papua New Guinea v. Carroll[dcccvi]⁷�as being in a �partially transplanted Australian environment�.

Despite a careful reading of the judgments in Carroll�s case[dcccvii]⁸�and in the Supreme Court decisions in Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[dcccviii]⁹�which overruled Carroll�s case[dcccix]¹⁰�and also in Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[dcccx]¹¹�which affirmed Diaz�s case[dcccxi]¹²�I am still not clear whether the standards of Papua New Guinea are to be taken into account when assessing damages in respect of an expatriate worker. Decisions in the National Court which have been expressed in terms following the Supreme Court decisions seem to accept that awards for expatriates should not be moderated by reason of the differing level of community standards in Papua New Guinea: see Bradford v. Bradford[dcccxii]¹³�and Edwards v. Jordan Lighting[dcccxiii]¹⁴.

It seems to me that the judgments of the individual judges in Kerr�s case[dcccxiv]¹⁵�were formulated in precise terms upon which three observations were made. First, whether deliberately or not they avoid the sort of situation facing visitors from the United States who happen to be injured in Mexico where the law restricts damages to a small fraction of what might be recovered in the United States[dcccxv]¹⁶. Secondly they leave open the question of whether in awarding damages to injured Papua New Guinean citizens the court takes into account the economic and financial conditions of the nation. Thirdly they leave open the further question of whether the court should or may have regard to comparable verdicts for similar injuries in other countries.

In my view there is no way in which the court can disregard local circumstances when awarding a figure for economic or pecuniary loss, whether it be for loss of wages, loss of earning capacity or expenses incurred by way of nursing or hospital or medical care or the like. When it comes to awarding a figure for the intangibles such as pain and suffering and loss of amenities of life it seems to me proper, that whatever be the situation with regard to expatriates, the award for a citizen has to be fair and reasonable having regard to the standards of the people of Papua New Guinea. The fact that it may be difficult to ascertain these standards does not affect the validity of that proposition. What is unthinkable of course is that the figure awarded for pain and suffering to a Papua New Guinean plaintiff should be less than that awarded to an expatriate merely because the plaintiff is a citizen and not an expatriate. Whether or not the day of the �partially transplanted Australian environment� is over, I doubt whether many will now agree with what was said in Diaz�s case[dcccxvi]¹⁷�to the effect that if damages in Papua New Guinea tend to be lower than elsewhere, that will be because the majority of plaintiffs �will be simple villagers whose economic loss will be minimal�.

In the light of the above I do not propose to consider comparable verdicts from other countries although I appreciate that other judges have found them of assistance. There are no recent verdicts in this country of which I am aware and which are relevant to these current cases in the Highlands. In looking for guidance on general damages there is one local factor which it seems to me proper to take into consideration and that is the scale of figures under s. 66 of the Workers Compensation Act. I do not wish to overstress this factor as it will not be of any assistance at all except in cases where the evidence shows that the plaintiff has suffered a physical disability that may be expressed in terms of a total or percentage loss of function of the particular part of the body for which the Workers Compensation Act provides a monetary figure. But if the evidence does show such a loss of function it would be a rare case indeed in which general damages for pain and suffering and loss of amenities of life would be below the appropriate figure according to the Act.

On the calculation of loss of earning capacity it will often be the case that the court will have very little evidence to work upon where the plaintiff is engaged in gardening or hunting with little participation in the cash economy. In the present case, and others on which I have reserved judgment, there is some evidence of a general nature but in addition to acting on that evidence I think it is appropriate to adopt the approach of Mahoney J. in Baird v. Roberts[dcccxvii]¹⁸�which was approved in Kerr�s case[dcccxviii]¹⁹, namely that once a reduction of economic capacity is established, even if there is no evidence as to pre and post accident possible earnings, a trial judge must, in general, assess some compensation in this regard; he cannot ignore the loss.

Before returning to the circumstances of the present plaintiff I would register my own concern at the difficulty of assessing damages in cases such as this. The principles of assessment of damages for personal injuries with which I am familiar arise, like much of the law, not so much from logic as from experience. They developed in other countries in comparatively recent times in response to conditions of rapid industrial development and increasing affluence. They may not be appropriate for Papua New Guinea. To decide whether and how they should be replaced or modified for this country would require a very thorough going investigation into legal, social and economic questions for which the court is not equipped.

What then of the present plaintiff. His life has obviously been shattered by the events described. He has been reduced to a man of no account in his own community. He was of course particularly vulnerable because of the pre-existing disability he had in his right hand. The injury to this left hand leaves him a young man in a community in which he is unable to do many of the things expected of young men. He is left to be fed, or underfed, by his mother when once he worked his own land, produced his own food, sold his own coffee. His marriage prospects to date appear bleak. He has not had the capita], or the education, or the knowledge, or the initiative or opportunity in the social environment of his village to employ someone to help keep his gardens going.

On the other hand he must have been quite old for marriage even at the time of his injury, and he may soon appear a more attractive prospect even to those modern girls who expect a man to have a physique if not an education. He can buy himself back into the favour of the villagers with the assistance of the defendant�s resources. The award of damages itself will overcome a good deal of his existing social disability. It will also provide some working capital from which it will be possible to rehabilitate his coffee garden if he chooses to do so. The purpose of an award of damages is to place the plaintiff as far as money can in the position he would have been but for injury but as the law stands it is no part of the court�s function to control a plaintiff�s use of damages.

In my view the case calls for a substantial sum by way of damages for pain and suffering and loss of amenities of life. The plaintiff�s injury has left him with a disability which is permanent. At the time of injury, although restricted in the use of the right hand as a result of the previous injury when a boy, he appears to have led a normal sort of life. When he was injured in January 1977 he was engaged in physical work which required climbing. Having compensated for the disability in his right hand by developing the capacity in his left hand, he has now a substantially reduced capacity in the left arm which cannot be compensated for by increased use of any other limb. His condition cannot improve except in the sense that as time goes by he will come to live with it. Above all the extent of the loss is greater than reference to the decreasd capacity in the left arm would indicate. As Dixon C.J. put it in Watts v. Rake[dcccxix]²⁰:

�If the injury proves more serious in its incidents and its consequences because of the injured man�s condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay.�

I proposed to treat the plaintiff�s earning capacity, which was K30 per week at the date of the injury, as nil from then until a year later. From January 1978 to January 1981 I assess his loss of earning capacity at K25 per week. Thereafter because of the factors I have mentioned I would reduce the loss to K15 per week for the rest of his working life which I estimate to be thirty years. A sum which would if invested at seven per cent and be exhausted at the end of thiry years if drawn on at K15 per week would be K9,675. I discount this figure, having regard to the conventional �vicissitudes� and in order to avoid overlapping with the award for pain and suffering and loss of amenities, to K7,000.

The award will therefore be:

18,000

There will be a verdict for the plaintiff of K29,800 and judgment accordingly.

Verdict and judgment accordingly.

Solicitor for the plaintiff: D. J. McDermott, Acting Public Solicitor.

Solicitor for the defendant: R. K. Woods, Acting State Solicitor.

[dccc] [1980] P.N.G.L.R. 567.

[dccci] [1980] P.N.G.L.R. 567.

[dcccii] British Transport Commission v. Gourley [1955] UKHL 4; [1956] A.C. 185 applied in Brian John Lewis v. The Independent State of Papua New Guinea [1980] P.N.G.L.R. 219.

[dccciii] Anis Wambia v. The Independent State of Papua New Guinea [1980] P.N.G.L.R. 567.

[dccciv] [1975] P.N.G.L.R. 262 at p. 277, per Prentice Dep. C.J.

[dcccv] See H. Luntz, Assessment of Damages for Personal Injury and Death (1973), p. 151 ff.

[dcccvi] [1974] P.N.G.L.R. 265 at p. 270.

[dcccvii] [1974] P.N.G.L.R. 265 at p. 270.

[dcccviii] [1975] P.N.G.L.R. 262.

[dcccix] [1974] P.N.G.L.R. 265.

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

[dcccxi] [1975] P.N.G.L.R. 262.

[dcccxii] [1975] P.N.G.L.R. 305.

[dcccxiii] [1978] P.N.G.L.R. 273 at p. 293.

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

[dcccxv] See Luntz op. cit. p. 10 et seq. and H. McGregor (1970) 33 Modern Law Review 1 at pp. 25-6.

[dcccxvi] [1975] P.N.G.L.R. 262 at p. 294.

[dcccxvii] [1977] 2 N.S.W.L.R. 389 at p. 398.

[dcccxviii] [1979] P.N.G.L.R. 251 at p. 251.

[dcccxix] [1960] HCA 58; (1960) 108 C.L.R. 158 at p. 160.