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Caswell v National Parks Board [1987] PGLawRp 553; [1987] PNGLR 458 (16 April 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 458 - Andrew Caswell v National Parks Board�

[1987] PNGLR 458

N584

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANDREW CASWELL

V

NATIONAL PARKS BOARD

Waigani

Hinchliffe J

6-8 April 1987

14 April 1987

16 April 1987

DAMAGES - Personal injuries - Particular awards of general damages - Leg and back injuries - Fractures of humerus and femur - Crushed fracture of L2 vertebra - Fractured pelvis - Male aged 37 (40 at trial) - A ward of K22, 000 general damages.

The plaintiff, aged 37 (40 at the date of trial) was injured when he fell from a tree house in the Variarata National Park and suffered a fractured right humerus, fractured right femur, two fractured heels, crushed fracture of L2 (lumbar vertebra), fractured right pelvis and partial right ulnar nerve lesion. The fractured right femur subsequently required internal fixation. As a result of his injuries the plaintiff lost 20 per cent of right lower limb function, 20 per cent of right upper limb function, 10 to 25 per cent of whole body function and he is expected to develop osteoarthritis in the right foot and hip in the next five years.

Held

General damages for pain and suffering and loss of amenities should be assessed at K22,000.

Cases Cited

Anis Wambia v The Independent State of Papua New Guinea [1980] PNGLR 567.

Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365.

Costello v Talair Pty Ltd [1985] PNGLR 61.

Evans v Talair Pty Ltd (unreported, National Court judgment, N502 of 1985, Bredmeyer J, dated 15 March 1985).

Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130; [1970] 2 WLR 702; [1970] 1 All ER 1202.

Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557.

Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573.

Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Trial

This was an action in which the plaintiff sought damages for personal injuries as a result of his falling from a tree house.

Counsel

T M Glenn, for the plaintiff.

D Lambu, for the defendant.

Cur adv vult

16 April 1987

HINCHLIFFE J: The writ of summons in this matter was issued on 25 March 1985. It is in relation to injuries received by the plaintiff at Variarata National Park on 29 October 1983. On that day the plaintiff climbed into a tree house and soon after the floor of the tree house gave way and he fell to the ground below, suffering severe injuries.

Paragraph 9 of the statement of claim reads:

�The said injuries and loss and damage, were occasioned to the plaintiff by reason of the breach of statutory duty pursuant to Section 52 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) and/or by reason of the negligence of the Defendant, it�s servants or agents.�

[His Honour then considered the evidence in a manner not calling for report and concluded:]

I am satisfied that the defendant was in breach of its statutory duty in that it failed to take such care as in all the circumstances of the case was reasonable to see that the visitor was reasonably safe in using the premises for the purposes for which he was invited or permitted by the defendant to be there.

I am further satisfied that there was no negligence on the part of the plaintiff as alleged by the defendant.

I have no doubt that the plaintiff suffered severe injuries and considerable pain and suffering.

The plaintiff stated that immediately after the accident his memory was fragmented. He was admitted to the Port Moresby Hospital for about two days after the accident and then transferred to the Royal North Shore Hospital, Sydney, Australia. It seems from the evidence that he has little recollection from the time he fell up until the time he arrived in Sydney. His injuries were serious enough to require a doctor to accompany the plaintiff to Sydney together with the plaintiff�s wife. He was on a stretcher and he was met at Sydney by ambulance men who carried the plaintiff from the aircraft.

He was operated on about four days after arriving in Sydney and he can remember suffering pain in that period. Even though he was having pain killing treatment every four hours, it wore off before the next medication was due and the plaintiff, in his own words, was in �agony�, especially in the spinal region.

The plaintiff stated that internal fixation was carried out during the operation and that there was an incision from the knee to the hip, it was very sore and the spine caused the greatest distress. On advice, he remained rigid for four weeks. Any movement caused agony. Because of the fact that he was lying on his back for such a lengthy period, the plaintiff developed bed sores. At that time he was greatly assisted by his wife who not only comforted him and gave him support but also treated his bed sores and assisted him in his showering and various other personal needs. At that time his right shoulder was in pain and his right ring finger and right small finger and half the palm of the hand experienced numbness. He experienced a lack of sensation in two toes and the sole of his right foot. Further to that, the plaintiff was depressed as he thought that he might be crippled and the authorities could not tell him one way or the other at that stage.

The plaintiff stated that he returned to Papua New Guinea six weeks after the accident. He remained house bound for the next two weeks and then returned to work for short periods over two weeks followed then by longer periods.

He stated that the degree of his improvement rate � tapered off after 12 months and that it has been stable over the last 18 months. He now finds that walking any great distance is impossible because of the weakness in his right leg. In fact he stated that after walking 200m it becomes stressful. He gets tired and is then in pain although he does not get pain in his back. He went on to say that he is now left with a reduced degree of rotation and that his heels are stiff and �crack�. His right heel cannot rotate left to right more than a few degrees. He also said that his right shoulder is stiff that that he has no trouble with his pelvis. The plaintiff said that he has continuing numbness in the right hand and that there is a degree of weakness. He is also in effect relearning to use a computer keyboard which he uses for about a half to three quarters of an hour each day. He can no longer go bushwalking or rockclimbing and he cannot run. His swimming is limited. He experiences pain in his right thigh if he walks too far and it feels uncomfortable. Four or five times in the last three or four months he has experienced a short intense pain in the right thigh bone which apparently is tendon trouble.

Several months after his return to Papua New Guinea the plaintiff and his wife separated for three or four months. He had become intolerant and irritable, short tempered and difficult to live with.

He now finds domestic chores difficult eg, carrying the shopping.

In his medical report of 5 March 1984, Dr Apana wrote that the plaintiff�s injuries included:

N2>1.������ Fracture of greater tuberosity of right humerus.

N2>2.������ Subtrochanteric fracture of right femur.

N2>3.������ Bilateral culcaneal fracture.

N2>4.������ Crushed fracture of L2 (Lumbar vertebra)

N2>5.������ Fracture right pelvis.

N2>6.������ Partial right ulna nerve lesion with weakness, wasting and parathesia.

N2>7.������ Abrasions around his face.

The doctor said that he escorted him to Sydney and then saw him again on 11 January 1984, clinically much improved, except that he still had evidence of right ulna nerve lesion and was still on crutches. The doctor also wrote that in his opinion, the plaintiff had suffered a great deal both physically and mentally due to his multiple injuries.

Mr Michael D Ryan, surgeon, reviewed the condition of the plaintiff in Sydney on 27 January 1987. He wrote in his medical report that the plaintiff:

�Still has numbness in the right fourth and fifth toes and objective evidence of right ulna nerve paresis. On examination he had a full range of spinal motion and no evidence of irritative or compressive neuropathy in his lower limbs. The muscles of the right thigh were generally wasted, both quadriceps and hamstrings. There was a full range of motion of the right hip joint. there was diminished sensation of the fourth and fifth toes and lateral border of right foot, but no clear evidence of motor insufficiency.

In the upper limbs the patient had residual right u1na nerve palsy and altered sensation.

I consider, Mr Caswell has lost 20% of right lower limb function as a result of his leg injury, 20% of right upper limb function as a result of his persistent ulna nerve paresis, 10% of whole body function as a result of his lumbar (L2 fracture). I consider his condition to be stable and advise that it would be appropriate to remove the internal fixation of the right limb when he next returns to Sydney .... I do not expect it to materially effect [sic] his function level.�

In her report of 30 March 1987, Dr Joseph, Senior Lecturer in Surgery at the University of Papua New Guinea, wrote that she examined the plaintiff on 20 March 1987 at the Port Moresby Hospital:

�My opinion is that this man suffered severe generalised injury from the fall, from which he has made a remarkable recovery, probably due to his physical fitness, and his personality which is optimistic and vigorously active. I agree that Mr Caswell has lost 20% of his right lower limb function and 20% of his right arm function. I think his condition is currently stable, but he can expect to get osteoarthritis in the right foot and hip after a lapse of about five years. I think the pain in his right thigh can reasonably be expected to improve after the removal of the internal fixation.�

In a further short report dated 1 April 1987, Dr Joseph wrote:

�Whilst it is difficult to predict, I consider that the probability of Mr Caswell�s working life expectancy being reduced by five years is in the region of 75%.�

Dr Joseph also gave evidence at the hearing of this matter and in reply to a question in cross-examination regarding overall bodily loss of function she answered:

�25% total loss of function.�

On that point she and Mr Ryan seem to differ.

As I have stated, there is no doubt that the plaintiff has suffered severe injuries and considerable pain and suffering. That is clear from his own evidence which is certainly consistent with the observations and assessments of the medical practitioners.

Prior to the accident the plaintiff was a fit and energetic 37 year old man. He was a keen bush walker and experienced rock climber. He also was a person who swam quite considerable distances. Since the accident and due to his injuries the plaintiff is now no longer able to take part in bush walking or rock climbing and his swimming is now restricted to short distances. His domestic situation has changed in the sense that he is unable to help as much with the shopping and other domestic type work about the house.

He has a fear of carrying his child in case his leg gives him sudden pain. This happened on one occasion when he was carrying his child and he gave evidence that he almost dropped her.

For some months after the accident the plaintiff experienced change in his personality. He became depressed and irritable, bad-tempered and intolerant. The change was so severe that his marriage broke down and he and his wife separated for three or four months. Fortunately they are together again and his personality has returned to normal.

I am satisfied that in approximately five years time the plaintiff�s condition shall worsen with the onset of osteoarthritis to the right foot and hip. This of course will be accompanied by further pain and discomfort.

In regard to damages for the pain suffering and loss of amenities both counsel have provided me with a number of cases to consider.

Mr Glenn referred to Caedmon Koieba v Motor VehiclesInsurance (PNG) Trust [1984] PNGLR 365 where general damages of K19,000 were awarded by McDermott J. Counsel submitted that that case represented a low mark for injuries of this type. Mr Lambu, for the defendant, submitted that the injuries incurred by the plaintiff in Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust were more serious than in the present case and therefore I should consider a figure less than K19,000. I do not necessarily agree with Mr Lambu�s logic. The problem that arises so often in this type of action is that each case is different and usually the cases referred to by counsel are the ones which favourably suit their case. I say that without any disrespect to counsel. Of course cases referred to by counsel should be considered closely but at the end of the day they can only be a guideline to the presiding judge.

Mr Glenn also asked me to consider Evans v Talair Pty Ltd (unreported National Court judgment, N502 of 1985, Bredmeyer J) (general damages of K15,000) and Costello v Talair Pty Ltd [1985] PNGLR 61 (general damages of K18,000).

They were two cases heard by Bredmeyer J where the plaintiffs were injured in an aircraft accident. It was submitted that the injuries received in the aircraft accident were less severe than those received in the present case. I am inclined to agree with that view.

Mr Lambu referred me to Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557 (Miles J, General damages of K18,000) and Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573 (Miles J, general damages of K10,000 where the plaintiff lost 50 per cent effective use of his right hand in a motor vehicle accident).

He then referred me to Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294 (Los J).

The plaintiff lost 100 per cent effective use of the left hand and arm from injuries received in a motor vehicle accident. He also lost 70 per cent use of his left leg. His Honour awarded K35,000 general damages. Mr Lambu submitted therefore that the plaintiff in the present case was not entitled to half of K35,000.

Finally I was referred to Anis Wambia v The Independent State of Papua New Guinea [1980] PNGLR 567 (Miles J) (general damages of K5,000 for a fractured femur requiring the insertion of a pin).

Mr Glenn submitted that I should consider awarding general damages in the range of K30,000 to K40,000. Mr Lambu suggested a figure of K8,000.

I am satisfied that a sum of K22,000 is an appropriate award for pain, suffering and loss of amenities.

FUTURE ECONOMIC LOSS

Even though figures were put to me regarding future economic loss, it now seems clear that the plaintiff will not suffer any future economic loss.

FUTURE MEDICAL EXPENSES (AND CONSEQUENT WAGE LOSS)

I am satisfied that the plaintiff will require one to two weeks hospitalisation for the removal of the internal fixation. It is unchallenged that the hospital fee will be $A344.79 per day. A fair assessment therefore would be 10 days hospitalisation at $A3,447.90.

I am also satisfied that the plaintiff will �be off� work for three weeks when he has the internal fixation removed and I therefore must award a figure for loss of wages. Mr Lambu argued that the Australian salary expection was too high and that I should consider a lesser figure. The submission was based on the fact that in 1983 the plaintiff�s gross salary was $A29,000. His gross salary now, in Australia, is expected to be within the range of $A52,000 to $A57,000. Mr Lambu obviously thought that an increase in salary of $A26,000 in four years was excessive. He submitted that I should be considering a figure in the range of $A40,000 to $A45,000. Certainly no more than $A52,000 (gross). I cannot agree with Mr Lambu although I fully understand his amazement regarding such a salary increase over four years. From my own experience in Australia and only having recently left that country after many years working there the salary increase does not surprise me. Mr Glenn submitted that a fair and reasonable expected salary would be $A54,728 gross per annum which reflects a net weekly salary of $A645.00. With those figures I agree. Therefore three weeks loss of wages would amount to $A1,935.00.

I order that the defendant pay to Touche Ross & Co the sum of K7,437.10 plus interest as set out below.

WAGE LOSS OF WIFE

It seems that the evidence is unchallenged that the plaintiff�s wife did not return to full time work until the plaintiff was off crutches which was 12 weeks after the accident.

The claim is for the period when she did not carry out any paid work�a period of eight weeks. Mrs Caswell stated that at the time of the accident she was earning K180 net per fortnight and therefore she claimed K1,440 for lost wages. I am satisfied that she was needed to help her husband on his road to recovery. It is clear that if she had not been available then a nurse would have been required to assist the plaintiff.

At the time Mrs Caswell had two jobs. The first was as a receptionist and she was paid K160 net per fortnight. The second was with �Consumer Sales and Marketing� in which she was paid K200 net per fortnight.

Mr Lambu submitted that I should only allow K80 per week for the eight weeks as Mrs Caswell did not sufficiently explain how she received her fortnightly salaries and that she could have explained in more detail by calling witnesses and producing pay slips. I do not agree with Mr Lambu. I found Mrs Caswell to be a genuine witness who presented well and certainly left me with no doubt that she was a sincere and honest person. I allow the claim of K1,440. I order that the defendant pay her K1,440 plus interest as set out below.

INTEREST

Up until Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 there had been differences of opinion amongst judges as to the manner in which interest should be calculated in this type of case. The Court stated that we should follow the basic guiding principles as set out in Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130.

Therefore it seems that for pain and suffering and loss of amenities interest should be awarded at 8 per cent from the date of the service of the writ (7 May 1985) to the date of trial (6 April 1987). Interest on special damages (including loss of wages) should be awarded at 4 per cent from the date of injury (29 October 1983) to the date of trial (6 April 1987).

The plaintiff has claimed interest on:

N2>1.������ Prejudgment pain and suffering and loss of amenities which I assess at K16,000 and I award interest at 8 per cent, from the date of service of the writ to the date of trial which equals K2,453.33.

N2>2.������ Expenses paid by Touche Ross & Co to be paid back to Touche Ross & Co which I assess at 4 per cent from the date of the accident to the date of trial which equals K1,022.85.

N2>3.������ Mrs Caswell�s wage loss to be paid to Mrs Caswell which I assess similarly to No 2 above which equals K198.04.

There will be judgment for the plaintiff as follows:

I order that costs are to follow the judgment accordingly.

Judgment accordingly

Lawyer for the plaintiff: Beresford Love Francis & Co.

Lawyer for the defendant: State Solicitor.