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Kandapak v The State [1980] PGLawRp 622; [1980] PNGLR 573 (28 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 573 - Kokonas Kandapak v The State�

[1980] PNGLR 573

N265

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KOKONAS KANDAPAK

V.

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Waigani

Miles J.

11-12 September 1980

28 November 1980

DAMAGES - Personal injuries - Particular awards of general damages - Arm and hand injury - Fractured upper arm - Ulna nerve damage - Claw deformity of right hand - Highland villager - Near subsistence farmer - Marriage affected - Male aged twenty-five - Award of K12,150, including K500 for interference with marital relations and K1,650 for future economic loss.

The plaintiff, a Highland villager and near-subsistence farmer aged about twenty-five claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered was a compound fracture of the right humerus with damages to the ulna nerve causing claw hand deformity. There was initial non union of the fracture requiring treatment with bone plating and bone grafting resulting in sound union. As a result of the nerve injury the plaintiff suffered a fifty per cent loss of the effective use of his right hand, having difficulties with tasks needing lifting and gripping. At the date of trial the plaintiff had not returned to working his farm and his marriage which was three weeks old at the date of the accident was being adversely affected.

Held:

Damages for pain and suffering etc. should be assessed at K10,000, there should be an award of K1,650 for economic loss for three years from the date of hearing, and a further award of K500 for interference with marital relations.

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 August 1978.

Counsel:

S. Cox, for the plaintiff.

M. Fitzsimmons, for the defendant.

Cur. adv. vult.

28 November 1980

MILES J.: This is an action for damages by the plaintiff in respect of injuries he says he sustained when travelling as a passenger in a motor vehicle driven on behalf of the defendant by a man called Peter Piando. The incident occurred at Wabag on 11th August, 1978. Liability was in dispute.

[His Honour then dealt with the evidence on liability concluding that there should be a verdict for the plaintiff, and continued ...]

I turn now to damages. The plaintiff is a near-subsistence farmer, of about twenty-five years of age, married but without children. His cash income is derived solely from the sale of vegetables in the markets of Wabag and Mount Hagen. He does not have the advantage of income from coffee. His economic loss will therefore be less than that of the coffee farmer suffering a similar degree of disability. I mention this because I have had recently in other cases[dcccxxv]¹�to assess damages for Highlands coffee farmers who have sustained personal injuries. Whilst it is necessary to have some sort of uniformity in awards of damages it must be emphasized that each case depends on its individual circumstances as they appear from the evidence. The evidence in this case is that the plaintiff received about K50 per month from the sale of vegetables. There is no evidence that he has any significant outlay for pesticides or fertilizers or the like, and although there would no doubt be the costs of fares to the markets, this is likely to be a cost which would be incurred in any event in the normal course of living and not as a �business cost�. There was no argument on this point. I am prepared to treat the sum of K50 per month as the net profit from the sale of the produce of the labours of the plaintiff and his wife, of which K30 is referrable to the labours of the plaintiff himself.

In the case of Kapa Kopun v. The Independent State of Papua New Guinea[dcccxxvi]²�heard earlier in the same circuit there was evidence that a purely subsistence farmer in the Mount Hagen area will by his own labours produce goods to a value of about K15 per week. I have heard nothing in the present case about the situation in Wabag or Enga. Where a plaintiff entitled to damages has suffered loss it is incumbent upon the court to do the best it can to quantify the loss even if the evidence does not enable it to be satisfied as to an exact figure. A judge in this case is entitled to use his knowledge, imperfect as it may be, of such things as wage rates, market prices and the like. Having regard to what the plaintiff and his wife produced for sale in the markets as well as for their own subsistence, I put a value on the plaintiff�s own labour of K22 per week.

The plaintiff was in some distress immediately after his injury. He was assisted by his friends to the Wabag Hospital some half mile or so distant where he remained for a day or two. According to the records of the Sopas Adventist Hospital he was admitted there on 12th August, 1978. He was found to have a fracture of the midshaft of the right humerus. It was difficult to set. There was an attempt to reduce it under anaesthesia but this had to be repeated three or four times. A plaster cast was applied but on removal on 18th September it was found that union had still not been achieved and he was transferred to Mount Hagen.

At the Mount Hagen Hospital the plaintiff came under the care of Dr. Srinivasa who furnished a report dated 21st September, 1979. Dr. Srinivasa is described as a �specialist surgeon� but without disrespect to the doctor I am not aware of his specialist qualifications. His report reads as follows:

�This person was referred to me from Sopas Hospital on 20/9/78. He had non union of humerus (R) following fracture of (R) humerus six weeks earlier. He also had claw hand deformity of (R) hand affecting little and ring finger due to ulna nerve injury. His fracture was treated by bone plating and bone graft. He made a good recovery and was discharged home. I saw him again about two months back, his fracture had united soundly and apart from his deformity of his little finger he has recovered completely. I do not think his deformity of little finger is going to improve. In my opinion he has forehand disability of (R) hand of 10%.�

The plaintiff himself says that he remained at Mount Hagen for three weeks and the Sopas Hospital records show that on 19th February, 1979 he was seen again when the arm was according to one note �well healed� and according to another �healing�.

The plaintiff says that he has not been able to work since the accident. He cannot use his right hand for the purpose of using garden or hunting tools. He can however use a digging stick. The arm does not cause him any pain until he tries to lift a weight. The arm has improved slightly over the period of time. At present the arm itself is hard to straighten and he can grip only with the thumb and index finger. The plaintiff was not very articulate about his symptoms or the exact site of pain or the loss of function. He sits at home all day somewhat afraid to go out for fear what might happen to his arm. He does not go to the club or the hotel for this reason. He had been married for only three weeks at the time of the accident and apparently his wife is rather dissastisfied with the whole situation and is threatening to leave him. He has had to rely on relatives giving him clothing and from time to time they have advanced money to him. At this stage they too are getting tired of helping him out. He says that he is by his injury precluded from taking part in the traditional ceremonies and dancing as is expected of a young man in the corporate life of the village. He was not very explicit on this. The plaintiff seems rather sorry for himself but understandably so as he presents a picture of living in an impoverished situation with considerable loss of social and self esteem.

This evidence was supplemented by that of Dr. Beavis, Medical Superintendent of the Mount Hagen Hospital who examined the patient once only, the day before the hearing, for the purpose of giving evidence. I found the evidence of Dr. Beavis particularly helpful as he had directed his mind to the sort of questions that concern the court. Dr. Beavis had the assistance of the other medical reports and records. He observed a scar behind and on the inside of the plaintiff�s arm suggesting that the fracture had been compound in nature, which itself provides a reason for the difficulty in union, especially if the fracture had been a transverse one. The site of the scar also indicated that it was likely that the ulna nerve was involved. Injury to that nerve is common on fracture of the humerus especially if the bone is directed towards the ribs. The nerve can also be involved with the development of scar tissue impinging on it. The ulna nerve supplies power of movement and some degree of sensation to the little, ring and middle fingers of the hand. Dr. Beavis found upon examination that the ulna nerve in the plaintiff�s right arm was without function. There was also loss of feeling in the little and ring fingers and the palm with some atrophy of the skin rendering it more liable to trauma.

Dr. Beavis was frank about his own qualifications which are in the field of general tropical medicine and not orthopaedic surgery or neurology. He thought that it was likely that the plaintiff would experience some pain, in the same way as a person feels �phantom� pain in a missing limb, but his views on this aspect were somewhat guarded. I note in the report of the doctor at the Sopas Adventist Hospital dated 16th April, 1979 that �on a general basis these injuries usually heal well. However most people have some pain after fractures of this nature�.

Dr. Beavis found the degree of loss of function in the right hand to be quite substantial, about fifty per cent. He maintained this view in the face of Dr. Srinivasa�s assessment of ten per cent. He said it was likely that the treating doctor�whose operation was remarkably successful�was primarily concerned with the fracture of the upper arm rather than the complications in the hand caused by nerve involvement. Moreover it was possible that scar tissue had increased by mid 1979 causing a progressive nerve involvement. I accept Dr. Beavis� assessment on the balance of probabilities.

Doing the best I can on the material available for the purpose of assessing loss of earning capacity I will treat the plaintiff as totally incapacitated for the first year after his injury. For the next year which brings the period close to the date of the hearing, I assess the loss of earnings on the basis of a total loss discounted by one third. For the future I assess the loss of earning capacity by taking a period of three years� purchase discounted by one half. For the period thereafter I am not satisfied that there will be any loss of earning capacity which can be assessed by a monetary figure. The figure for pain and suffering and loss of amenities will of course take into account the permanent disability in the plaintiff�s hand together with the likelihood of some pain for an indefinite period.

As I have said the plaintiff presented a rather sorry picture. There is no question that he has had a very substantial injury with considerable dislocation in his life, especially over the period of hospitalization with the repeated operations. The principal disability is loss of function in the right hand. He suffered and continues to suffer a degree of pain on use of the hand which I accept as genuine. However I also accept Dr. Beavis� assessment that he is capable of a good deal of activity if he has the mental incentive. As I remarked in a similar context in another recent case[dcccxxvii]³�the effect of injury on a person who depends for a livelihood on the use of his hand can be initially devastating, but once the thought of litigation is removed, and there is a measure of financial security provided by way of an award of damages, some improvement may be expected at least in a case where there is no objective evidence of a physical basis for pain. In this case I think that there will be some measure of decreasing pain extending into the indefinite future. The extent of the plaintiff�s general capacity to work and enjoy life will conversely increase as he learns to cope with the permanent disability in his right hand and to make greater use of his left hand. His self-respect and reputation among his fellows will increase accordingly.

Some other matters deserve mention. One is the effect of the accident on the state of the plaintiff�s marriage. His wife may not think so badly of him when he can make some financial provision out of his damages and as he extends his range of activity. I have no idea as to how the marriage would have fared if he had not been injured, but on the probabilities I think that the plaintiff is entitled to something for the undoubted change the injury brought about in his married life at least until the present time.

Although the evidence was silent on the point I would expect that the plaintiff�s wife attended him during the weeks he was in hospital during which time the garden was totally unproductive. I allow an additional sum of K150 for this period.

As sometimes occurs in claims like the present, the plaintiff has said that he has been assisted financially by his relatives who will expect repayment out of the damages when he receives them. This in itself however does not mean that the award of damages should be increased. The situation is no different from that of all injured person borrowing money on a promise to repay out of all eventual award of damages. It is different from the situation where the relatives have rendered nursing or other services which have been necessitated by the injury. These days the view seems to be that damages should include a sum to cover the cost of such care or services regardless of whether the persons rendering have been paid or expect payment. See Griffiths v. Kerkemeyer[dcccxxviii]⁴�and Lewis v. The Independent State of Papua New Guinea[dcccxxix]⁵. But there has to be evidence that such services have been rendered to the plaintiff. The evidence in this case does not extend to services of such a nature.

Finally I should say that on the question of damages the plaintiff was largely corroborated by the evidence of his brother which I accept. He spoke of how the plaintiff leaves all the work to his wife and sits around, complaining of pain. The brother said that the plaintiff�s wife never listens to him now because he can�t hit her. The brother did not however give any evidence about how the plaintiff�s injury prevents him from taking part in the traditional ceremonies.

I award damages on the following basis:

There will be a verdict for the plaintiff 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.

[dcccxxv] Kapa Kopun v. The Independent State of Papua New Guinea [1980] P.N.G.L.R. 557, Anis Wambia v. The Independent State of Papua New Guinea [1980] P.N.G.L.R. 567.

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

[dcccxxvii] Anis Wambia v. The Independent State of Papua New Guinea [1980] P.N.G.L.R. 567 at p. 569.

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

[dcccxxix] [1980] P.N.G.L.R. 219.