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Wambia v The State [1980] PGLawRp 621; [1980] PNGLR 567 (28 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 567 - Anis Wambia v The State�

[1980] PNGLR 567

N264

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANIS WAMBIA

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 - Leg injury - Fractured femur - Good prognosis - Highland villager - Subsistence and part coffee farmer - Male aged thirty - Award of K5,000 general damages.

The plaintiff a Highland villager and subsistence and part coffee farmer aged about thirty claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered was a fracture of the right upper femur which required insertion of a pin and which healed well although the plaintiff continued to suffer a degree of pain and had not returned to working his land at the date of trial.

Held

General damages for pain and suffering etc. should be assessed at K5,000.

Trial

This was an action in which the plaintiff claimed damages for personal injuries as a result of a motor vehicle accident which occurred in January 1977.

Counsel

W. J. Neill, for the plaintiff.

M. Fitzsimmons, for the defendant.

Cur. adv. vult.

28 November 1980

MILES J: The plaintiff sues for damages for personal injuries sustained in a motor vehicle collision on 24th January, 1977, at Kolmao, Keltiga No. 1 village, which is apparently only a mile or two from the township of Mount Hagen. The plaintiff lives in this village. He is aged about thirty years. He is married with one child in grade 4 at a community school and another child below school age. He earns his livelihood from subsistence farming and working his three coffee gardens which total about five acres in area.

The defendant admitted liability at the hearing and the matter proceeds to an assessment of damages only.

The plaintiff received his injuries when he was a passenger in a land-cruiser vehicle which was struck by a similar vehicle belonging to the State. He was taken to the Mount Hagen hospital where he came under the care of Dr. Beavis. He was found to have a fracture in the upper part of the right femur, in the middle of the bone and without involvement of any joint. On 4th February, 1977, a stainless steel pin was inserted to hold the bone together. Recovery was recorded as uneventful and the plaintiff was discharged on crutches. Dr. Beavis did not see the plaintiff again until some time in 1979. He found that the leg had healed well. Examination of x-rays showed the bone straight, with no shortening and no disease of the joints. The muscles were slightly wasted, suggesting lack of use of the leg. The pin had been removed. (This would have involved a further operation with a stay in hospital of two or three days). The doctor recorded no complaint of pain or limitation of movement. Had there been any he expected that he would have noted it. He observed that the plaintiff moved freely without limping although the plaintiff appeared frightened to put weight on the leg. The doctor felt that the prognosis was good.

The plaintiff was not so optimistic. In fact he has not worked since the day of injury and the coffee garden has become neglected. Apparently it was worked quite efficiently without hired help for at least two years previously, yielding about forty-six bags in 1976. This gave him and his family an income he says of K5,000 to K6,000 a year from the coffee crop. This appears to be an accurate assessment as he stated that he was receiving K120 to K150 for each copra bag full of coffee berries. In addition he and his wife grew vegetables which provided for a staple diet and were sold for K5 to K10 in the market about once a month. In the light of the evidence of Mr. Raphael Tolmga I estimate the value of the vegetables grown and consumed by the family to be about K20 per week. However I expect that the bulk of the work in connexion with the growing of vegetables both for market and home consumption was done by the wife and I estimate the value of the plaintiff�s contribution to have been about K5 per week.

During the time he was in hospital the plaintiff was tended by his wife as well as by the hospital staff. He was on crutches for six weeks after that. Dr. Beavis thought that it would be reasonable for him to start doing some light work about nine months after discharge from hospital, that is to say at about the beginning of 1979. The fact is however that the plaintiff has not worked at all. His wife does all the work, but she does not maintain the garden properly. The plaintiff says that his first experience was that when he tried to do something then something happened to his leg. He says that when he stands up he gets a pain which he indicated as being on the outside of the right leg half way up the thigh. He said he went back to the hospital where the doctor told him that the bone was joined. When he told the doctor of the pain, the doctor said �That�s it� and let him go. I take it that he is referring to a hospital visit in connexion with the removal of the pin.

No corroborative evidence was called on behalf of the plaintiff and I have to assess his credibility in the light of the medical evidence. Dr. Beavis expressed the view based on his extensive experience at Mount Hagen that many patients after an injury such as the plaintiff�s �tend to languish in their village huts for a long time� without any apparent reason, apparent that is on a conventional medical basis. However it is well known among legal practitioners (as well I think as among medical practitioners) that a person who has received injury may feel pain genuinely without a clinical reason being established. This may be due to all sorts of factors, psychological as well as cultural. I think that it is recognized that persons whose livelihood depends on their manual labours are often shattered by the experience of physical injury. I think that it is also recognized that many such persons may cease to experience symptoms of pain which they have associated with their injuries only after the factor of pending litigation is removed from their lives and a measure of comparative security is afforded by an award of damages. These observations are based on experience elsewhere and if they are inappropriate to the circumstances and people of Papua New Guinea no doubt I will be told so. However similar remarks have fallen from other judges in this country�for instance Raine Dep. C.J. in Kongo Bomai v. The State[dcccxx]¹�and more recently Bredmeyer A.J. in Darvill v. Motor Vehicles Insurance (P.N.G.) Trust [dcccxxi]².

At any rate the way in which I intend to approach this matter is as follows. On the question of pain and suffering I accept that the plaintiff is not consciously exaggerating his symptoms. He suffered a severe injury and was greatly handicapped for a period of twelve months or so thereafter. During that time the degree of pain and suffering was substantial. I accept as was submitted by Mr. Neill on behalf of the plaintiff that an injury to a leg involves a gross disruption to the life of a Highlands villager whose livelihood is gained from the soil. I am mindful of the great inconvenience of getting over rough and steep ground, in and out of vehicles and so on. I accept that a degree of pain has persisted up until the present time but I am not persuaded that there will be any significant degree of pain and suffering in the future.

On the question of loss of amenities of life I take into account that the plaintiff is a villager, a family man with small children and that apparently before the accident he played some sort or sport. The evidence on this last aspect is minimal.

I turn now to the question of economic loss which is a more difficult question to decide. It has been put on behalf of the defendant that the plaintiff should have mitigated his loss by employing labourers to keep the coffee gardens going and thereby avoiding the loss of income which has been claimed. Once the loss is established, the onus is of course on the defendant to show that the plaintiff has failed to take reasonable steps in mitigation. The evidence of Mr. Raphael Tolmga was received in this present case as well as in the case of Kapa Kopun v. P.N.G.[dcccxxii]³�where it is more fully referred to. Mr. Tolmga�s evidence established that a coffee farmer in the Mount Hagen area could be expected to employ a couple of labourers to work a coffee garden of about the same size as the plaintiff�s or slightly bigger at an approximate cost of K1,000 each if employed for a year. In some villages the people are reluctant to accept �immigrant� labourers of this nature but Mr. Tolmga himself employs labourers from the Southern Highlands and Enga from time to time. The plaintiff gave evidence that his own relatives are too busy with their own gardens to help him.

It was submitted on behalf of the defendant that the plaintiff had available to him some funds from which he could have afforded to employ labour to continue the productivity of his coffee garden. There was evidence that the plaintiff in each of the two years prior to injury had earned enough cash to purchase a motor vehicle. Each of the vehicles seems to have been written off in collisions and there is some claim for insurance or damages in respect of the more recent vehicle. That claim is being handled by the plaintiff�s brother and he does not really know what has happened to it. Having regard to all this I think that it is appropriate to make some allowance for the opportunity which the plaintiff has had to cut his losses by employing help at some stage and also for the fact that from the beginning of 1978 the plaintiff has been able to carry out some work. There was no evidence one way or the other as to whether the plaintiff ever used employed labour before his injury. It seemed to me that it was unlikely that he used paid labourers to any substantial extent but I could not exclude the likelihood that they would be used from time to time as occasion demanded.

Without the participation of the plaintiff the coffee garden became quite unproductive and it is unrealistic to regard it as partly productive at such times as it could be tended by the plaintiff�s wife. I think it is reasonable to regard the plaintiff as wholly unable to attend to the coffee garden for nine months after his injury. During the first three months whilst hospitalized both he and his wife were unable to work the vegetable garden and obtain the subsistence crops. The plaintiff continued to be unable to assist in the vegetable garden until the end of 1977. I disregard the loss of sales of surplus vegetables as too small an item to reflect in damages in a case of this nature. For the period September to December 1977, having regard to the availability of assistance from the wife and hired labour and to the improvement in the plaintiff�s condition, I discount the loss of income from coffee by one half. For the year 1980 and for the same reasons I discount the loss of income from coffee by three quarters. Thereafter I find that there will be no compensable economic loss. The plaintiff is so far recovered from his injury and otherwise able to make arrangements for assistance that I am not satisfied that the defendant can be held responsible for the continuing failure to bring the coffee garden back into production. However for the period up until the present time and to the end of the year 1980 account will be taken of the subjective pain that the plaintiff felt he suffered.

I assess the net annual income of the coffee gardens at K5,000 after taking into account a sum of K500 for recurrent expenses such as fertilizers and pesticides and the occasional use of labourers. I have also deducted a further sum of K500 for tax. I realize that there is no evidence of what tax is paid or payable but in view of Gourley�s case[dcccxxiii]⁴�recently confirmed in Papua New Guinea in Lewis v. The Independent State of Papua New Guinea[dcccxxiv]⁵�it cannot be ignored and a deduction for income tax must be made.

Evidence relating to pesticides and insecticides was given by Mr. Tolmga. Unfortunately it was very vague. There was also mention of out of pocket expenses by Mr. Neill. These were in the nature of fares, hire of crutches and the like. I can only allow a modest sum in the absence of evidence. I have also considered whether I should include a sum for restoring the plantation to productivity but in the absence of argument and evidence I decline to do so. Interest is a discretionary matter. It is not sought and is not awarded.

Damages will be as follows: