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Undapmaina, (an Infant, by Her Next Friend Eriwiye Daena) v Talair Pty Ltd [1981] PGLawRp 622; [1981] PNGLR 559 (1 October 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 559 - Susanna Undapmaina, an Infant, by Her Next Friend Eriwiye Daena v Talair Pty Ltd�

[1981] PNGLR 559

N317

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SUSANNA UNDAPMAINA

BY THE NEXT FRIEND

ERIWIYE DAENA

V

TALAIR PTY. LIMITED

Lae & Waigani

Andrew J

20 May 1981

1 October 1981

DAMAGES - Personal injuries - Particular awards of general damages - Leg and head injuries - Fractured tibia and fibula - Severe scalp laceration - Nervous shock - Death of father and sister in same accident - Continuing psychological instability and anxiety state - Female child aged 9 (11 at trial) - Award of K10,000 general damages.

DAMAGES - Personal injuries - Measure of damages - Nervous shock - Compensable as part of pain and suffering - Death of father and sister in same accident - Continuing psychological instability and anxiety state.

The plaintiff, a female child aged 9 years (nearly 11 at trial) was injured in an aircraft accident in the Highlands area in which she was the sole survivor and in which her father and sister both died. The principal physical injuries were a three inch transverse scalp laceration and fractures of left femur and right tibia all of which repaired with minimal defects: there was however continuing mental distress, psychological instability and anxiety state.

Held:

N1>(1)����� Nervous shock, if it accompanies physical injuries qualifies for damages as part of pain and suffering: grief alone does not sound in damages.

N1>(2)����� The evidence of nervous shock, psychological instability and anxiety state was in the circumstances more than a normal state of grieving and was compensable.

N1>(3)����� General damages for pain and suffering etc. should be assessed at K10,000.

Trial.

This was an action in which the plaintiff, an infant, sued by her next friend, to recover damages for personal injuries suffered in an aircraft accident.

Counsel:

W. J. Neill, for the plaintiff.

I. R. Shepherd, for the defendant.

Cur. adv. vult.

1 October 1981

ANDREW J:� The plaintiff was injured in an aircraft accident on 23rd December, 1978. She was a passenger on an aircraft, owned and operated by the defendant, which was on a flight from Goroka to Marawaka. It crashed somewhere between these two places killing the pilot and seven of the eight passengers on board. One of the deceased persons was the plaintiff�s father and another was her sister. The plaintiff was the sole survivor and at the time of the accident she was aged almost nine years.

The plaintiff�s claim is for injuries and loss suffered as a result of this crash by force of the Civil Aviation (Aircraft Operators� Liability) Act 1975 and is limited to the assessment of damages.

Mr. Phillip Moore, the District Co-ordinator with the Eastern Highlands Provincial Government, was at Marawaka on the day of the crash. He was waiting for this plane to arrive from Goroka and it was due at about 11.00 a.m. When it did not arrive he joined the search and was a passenger in a helicopter which sighted the wreckage at about 5.00 p.m. on that day. It had crashed in a heavily timbered area. At the time Mr. Moore reached the site there were two survivors, the plaintiff and another girt aged about thirteen, but she died as the plaintiff was being extracted from the wreckage. The aircraft had concertinaed and was lying against a tree. Mr. Moore described how the plaintiff was situated under the seats of what was left of the plane. She was bleeding badly from a scalp wound and her scalp had lifted backwards. Her legs were broken and she complained of pain and she kept repeating that �the plane had killed her daddy�. Her father�s body was near her. She was flown out by the helicopter but due to the weather she did not arrive at Goroka hospital until the next morning.

No words of mine could adequately describe the horror of such an experience which this young girl endured.

Upon admission to hospital she was administered morphine. She had a three inch transverse scalp laceration exposing the periosteum but there was no fracture. There was a fracture of the left femur (midshaft) and a fracture of the right tibia (midshaft). A pin was inserted in the left leg for traction to the femur and the right leg was put in plaster and the scalp wound sutured. She was hospitalized until 15th February, 1979, that is a period of almost two months. Her recovery was uncomplicated apart from an infection of the scalp wound which was satisfactorily overcome.

The reports of Dr. Griffiths and of Dr. Tanner show that both her legs are normal in size, strength and contour and there is no physical disability. She has a small scar on the vertex of the scalp but this is partly hidden by her hair. In his evidence Dr. Tanner stated that the sort of injuries sustained by the plaintiff would result in her being immobilized for a period of about two months and she would be restricted in her walking, running and similar activities for several months thereafter.

On the question of pain and suffering I consider that the plaintiff should be compensated for the period encountered at the time of the crash, during hospitalization and the period of recovery of a few months thereafter. I consider that any loss of amenities is slight as there is no residual disability in relation to the fractures of the legs. It was submitted by counsel for the plaintiff that there should be a separate award in relation to each fracture. However I do not consider that approach to be appropriate or practical. The injuries occurred at the same time and were treated over the same period of time.

I consider that the plaintiff suffered considerably more pain and suffering than the usual simple fracture because of the delay in her being taken to hospital and in the circumstances of the crash. The injury to the scalp was severe in that the scalp was lifted back. Fortunately it has healed well so that there is only a small scar which is mostly hidden by the hair. It may or may not disappear over a period of time. The cosmetic effect is however noticeable. I do not treat this injury separately as again there is a danger of overlapping.

There is however the further question of psychological injury which flows from the physical injuries sustained in the crash; the whole circumstances of the crash and in particular that her father and sister both died in the crash. Mr. Shepherd submitted that such injury was not pleaded and as such should be discounted. But nervous shock, if it accompanies physical injuries, qualifies for damages as part of the pain and suffering. This has always been recognized: See Munkman Damages for Personal Injuries and Death (5th ed. at p. 124). In Kohn v. Insurance Commission[dcccvii]¹�the defendant was held responsible for all the consequences of the accident, including the plaintiff�s mental and psychological ill health and instability and there was no need to attempt to sever that part of the consequences of the report of the death of the plaintiff�s fiancee from that part of it which was caused by her own physical injuries.

N1>It is true that grief alone does not sound in damages (Hewitt v. Bernhardt)[dcccviii]²�but in this case I accept the evidence of Mr. Forsyth, the regional psychologist for the Morobe Province, that the circumstances of the crash are part of the plaintiff�s everyday experience and that she is beyond the normal state of grieving. Mr. Forsyth was of the opinion however that she was not suffering from a neurosis although this was a possibility for the future.

N1>There is no doubt that a person who witnesses an accident or near accident and suffers nervous shock from the sight of it can recover damages if he can prove negligence, provided, of course, that the shock is proved to have caused him some actual physical or mental injury. A long line of cases establishes this showing a tendency to widen the area of recovery, beginning with Dulieu v. White & Sons[dcccix]³�and Hambrook v. Stokes Brothers[dcccx]⁴. It does not necessarily matter that the plaintiff is not related to the injured person; Mount Isa Mines Limited v. Pusey[dcccxi]⁵: See per Bray C.J. in Battista v. Cooper[dcccxii]⁶. The courts have gone further where a plaintiff herself injured in the accident was allowed to include in her damages for shock on learning some time after the accident, which had rendered her unconscious, that her husband had been killed in the same accident: Schneider v. Eisovitch[dcccxiii]⁷. This was followed in Andrews v. Williams[dcccxiv]⁸.

In Tsanaktsidis v. Oulianoff[dcccxv]⁹�a husband was seriously injured and rendered unconscious in a road accident in which his wife, child and mother were killed. Upon being subsequently informed of their deaths, he suffered a severe depressive illness, due mainly to grief. In assessing damages for his injuries, the depressive illness was a factor to be taken into account, notwithstanding that he was rendered unconscious and consequently did not suffer shock at the time of the accident. In that case it was held that the psychiatric illness caused by the breach of duty by the defendant was clearly compensable. Here there is no present neurosis on the evidence before me but there is evidence of nervous shock and psychological instability and of an anxiety state which is more than a normal state of grieving.

N1>In my opinion the sufferings of the plaintiff in this case are more extreme than in any of the above cases. She was herself severely injured in the crash and she had to endure over several hours being trapped in the wreckage with her deceased father and sister, and with the injured girl who died at the moment of rescue.

N1>In my opinion such mental distress then and since is clearly compensable. There is evidence of mental shock and psychological instability which is hardly surprising in these circumstances. I do not doubt that the plaintiff was greatly attached to her father. In my view I must consider, in the assessment of damages, that the imagination of children is so acute and may run away with them, which in one sense can make the suffering worse and balance that against the natural resilience of children and their ability to suppress the traumatic.

N1>Whilst courts are constantly assessing damages for nervous shock and psychological injury it rarely appears as a separate and particular award. One such case is Gallagher v. Nominal Defendant[dcccxvi]¹⁰�where the loss of the plaintiff�s only daughter in the same accident and the resultant nervous shock attracted an award of $A8,000. I take this as some guide but I bear in mind that in general little assistance can be obtained from examining awards in the Australian States and this is more so where there is no full report of the case.

In all of the circumstances of this case I consider a sum of K10,000 would be a proper figure for general damages, including pain, suffering and loss of amenities.

A claim was made for future medical and associated expenses to be incurred with a view to alleviating the plaintiff�s neurosis anxiety state and her fear of air travel: This claim was based on evidence from Mr. Forsyth that treatment was necessary in order to alleviate the continuing anxiety state and the resultant fear of flying. It was proposed that the plaintiff would be taken on short flights and relaxation methods taught to her. However it seems to me that in the first place the plaintiff�s condition cannot be described as a neurosis. Secondly there is evidence that she has flown since the accident and has managed if sitting in the front of the plane. If she has been at the rear however there is evidence that she has become anxious. I consider that such anxiety would be normal and as she has been able to fly since I do not consider that that condition is so acute that such treatment is necessary. It is a question of what is reasonable in all of the circumstances. On the whole I do not consider that the defendant should bear this expense.

In relation to special damages the cost of medical treatment was free. A claim is made for the expenses of the next friend (the mother) to travel from Marawaka to Goroka and to attend her daughter whilst in hospital. This claim is disputed. Such an allowance may be made if it is reasonably necessary for alleviation of the plaintiff�s condition. This is a question of fact depending among other things on the age of the plaintiff. In O�Connell v. Brisbane City Council[dcccxvii]¹¹�it was said that the test of whether the expenses were reasonably necessary in the interest of the patient should be approached in a �broad commonsense manner�. See also Richardson v. Schultz[dcccxviii]¹². Here the plaintiff was aged nine. She was transported to a hospital a long way from her home. I believe that the presence of the mother was necessary in the plaintiff�s interests in these circumstances and especially so given the circumstances of the crash and the nature of her sufferings.

N1>The evidence of Mr. Moore discloses that the mother was flown into Goroka (not at her expense) on 24th December, 1978. He assisted her while she remained in Goroka and the expenses amounted to K4.50 per day. The plaintiff was in hospital until 15th February, 1979. The only deduction to be made from this amount is the value of board or food which the plaintiff and her next friend would have ordinarily consumed: See Luntz Assessment of Damages for Personal Injury and Death at p. 34. The evidence is that the plaintiff and next friend lived by subsistence farming. I consider that some value must be given to this and accordingly I reduce the daily cost of expenses to K4.00. Under this head I assess damages as follows:

The award of damages is thus:

Cost of air fares for plaintiff

Expenses of next friend

Interest is claimed upon the award of general damages. This is a discretionary matter under the Law Reform (Miscellaneous Provisions) Act 1962. I follow the decision in Jefford v. Gee[dcccxix]¹³�which states the principle that the purpose is to compensate the plaintiff for receiving his money later than he should have done and I follow the decision of Kearney D.C.J. in John Cybula v. Nings Agencies Pty. Ltd.[dcccxx]¹⁴�and Miles J. in Hassard v. Bougainville Copper Ltd.[dcccxxi]¹⁵, and I fix a rate of 4% from the date of service of the writ until today�s date.

Accordingly there will be a verdict for K11,080.00 from which K246.00 is to be paid to the next friend by way of expenses incurred.

I order that the sum of K246.00 be paid forthwith to Eriwiye Daena, the next friend of the plaintiff, to recompense her for air fare and expenditure during the plaintiff�s hospitalization.

I further order that the sum of K10,834.00 be paid into court and invested on behalf of Susanna Undapmaina until she attains the age of twenty-one years, which I declare will occur on 2nd January, 1991.

I order the defendant to pay the plaintiff�s costs.

Orders accordingly.

Solicitor for the plaintiff: A. K. Amet, Public Solicitor.

Solicitor for the defendant: Beresford Love & Co.