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Yarnold v The State [1987] PGLawRp 556; [1987] PNGLR 474 (6 November 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 474 - Glenys Yarnold v The State�

[1987] PNGLR 474

N634

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GLENYS YARNOLD

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Madang & Waigani

Bredmeyer J

13 October 1987

6 November 1987

DAMAGES - Personal injuries - Particular awards - Economic loss - Home help - Back injury - Lumbar disc injury - Chronic back pain - Married woman with three children - Proposal to return to Australia within five years - Basis of assessment - Award of K20,000 for 10 years.

DAMAGES - Personal injuries - Particular awards - Economic loss - Specific heads of claim - Home help - Need to plead - National Court Rules, O 8, r 33(1)(g).

PRACTICE AND PROCEDURE - Pleadings - Damages claim - Personal injuries - Economic loss - Specific heads of loss must be pleaded - Home help - National Court Rules, O 8, r 33(1)(g).

The plaintiff, a married woman in her late thirties, was injured in a motor vehicle accident and suffered a lumbar disc injury which left her with chronic back pain and difficulty in performing her normal household activities. At the time of the trial the plaintiff had three adopted children aged two, three and 14, and hoped to have children of her own; she also proposed to return to Australia in approximately five years. Damages for pain and suffering, loss of amenities, past loss of wages and future loss of earnings and medical expenses were agreed and the plaintiff claimed damages for home help for a period of 15 years.

Held

N1>(1)����� A claim for damages for provision of home help is an aspect of economic loss which should be pleaded in the writ of summons pursuant to the National Court Rules, O 8, r 33(1)(g), or particulars given in a separate document.

N1>(2)����� In the circumstances the claim for home help should be allowed on the basis that the plaintiff would require such help for a further five years in Papua New Guinea full time for six days a week and for a further five years in Australia for three hours a day four days a Week.

N1>(3)����� Accordingly, damages for future provision of home help should be assessed at K20,000.

Cases Cited

Burnicle v Cutelli [1982] 2 NSWLR 26.

Freudhofer v Poledano [1972] VicRp 29; [1972] VR 287.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Robinson v Riley [1971] 1 NSWLR 403.

Simmonds v Hillsdon [1965] NSWR 837.

Trial

This was an action for damages for personal injuries sustained in a motor vehicle accident. Liability was admitted and damages were agreed under all heads except the cost of home help. The trial was confined to the assessment of damages for home help.

Counsel

S Lupalrea, for the plaintiff.

J Apa, for the defendant.

Cur adv vult

6 November 1987

BREDMEYER J: Mrs Glenys Yarnold was injured in a collision with a police vehicle in Madang on 3 June 1985. She suffered a back injury. Liability has been admitted and I entered judgment by consent in Madang for damages as follows:

No consent, however, was reached on a claim for domestic help required by the plaintiff and I have to decide that claim.

Mrs Yarnold gave evidence in support of her claim for domestic help and her counsel tendered the medical reports on her condition. Her counsel was unable to quote to me any authority for this head of damage. Counsel for the defendant was caught by surprise by this claim but did not object to it, and did call any evidence on it and was unable to address any argument on it. The plaintiff is at fault here. Provision for home help is an aspect of economic loss, the same as say nursing expenses. By O 8, r 33(1)(g) of the National Court Rules the plaintiff is required to plead in the writ of summons �full particulars ... of each item of special damages claimed, including wages and other economic loss, both present and future�. He failed to plead this and he failed to give particulars of it in a separate document. The defendant in turn failed to request particulars, or to object to evidence being led without prior notice and particulars, hence he was unable to call any answering evidence or address any argument of the issue.

Mrs Yarnold was 34 � at the date of the accident and nearly 37 at the date of trial. She suffered a disc protrusion between the fifth lumbar (L5) vertebrae and the first sacrum (SI) vertebrae. She was treated for 15 days in Royal Brisbane Hospital in November 1985. Dr MP Horwood of Madang in October 1986 reported that she had pains every day in her back and occasionally in her thigh. On occasions she used paracetamol for analgesia. She complained of particular difficulty in picking children up from the floor, sitting for any length of time, and in car and plane travel. He said there was a risk of her back problem worsening during pregnancy. On examination the doctor noted tenderness directly over and lateral (L and R) to the lumbar spine area. Apart from slight reduction in extension there was no measurable movement restriction; reflexes, power, tone and sensation appeared intact, and there was no evidence of dural stretch. The doctor concluded that she had post-traumatic backache due to arthritis which may cause nerve involvement again at a later stage. He advised Mrs Yarnold not to accept the status quo, but to improve her fitness, increase physical activity and decrease her weight to minimise future risk of complications recurring. He said her present disability was approximately 15 per cent of back function. She was unable to jog or run. There were a variety of complications which could occur (eg sciatica) and require complicated or long-term medical/surgical care and possibly an operation. These were not expected but could not be ruled out.

In October 1987, just a few days prior to the hearing, Dr Horwood re-examined her and said there had been an increase in pain, probably related to living with two small children and this had apparently required more frequent use of analgesics. On examination his findings were basically unchanged with lumbar extension and tenderness to the left lateral side of the L5-SI joint. He said she had chronic back pain unresponsive to exercise and mobilation. She might benefit from a caudal epidural steroid/anaesthetic injection. He advised her to lose weight and to exercise, especially by swimming.

Mrs Yarnold gave brief evidence before me. At the time of the accident she was childress but in May 1986 she adopted three Filipino children aged two, three and 14. She hopes to have a child of her own next year. She says she has pain most of the time even when sitting; she cannot stand up without pain. She says her condition has deteriorated in the last six to eight months. Housework gives her pain. Even making a bed gives her pain. About May 1986, when she adopted the three children she engaged a full-time housegirl who does the sweeping, cleaning under the furniture, vacuuming, cleaning fans and windows, hanging up the washing, cleaning the bath, and making the beds. The housegirl works five-and-a-half days a week and is paid K25 per week. Prior to the accident she was engaged on a partime basis at K10 per week. Mrs Yarnold�s 14-year-old daughter helps with housework when she comes home from school.

Mrs Yarnold has no definite plans to go to Australia but anticipated that she will go to Australia to live within three to five years. She has been in Papua New Guinea on and off for 14 years. I note that for two years she was here as a missionary. Her husband is a pilot with Douglas Airways and has been in Papua New Guinea for 13 years.

She says she will need home help in Australia and the rates there are $6 � $10 per hour. She says because of the greater expense in Australia it would be reasonable to engage home help four hours a day for five days a week.

Mr Lupalrea for the plaintiff argued that she would need this help for 10 years in Australia which he said on the 3 per cent discount tables came to $54,000 (for $120 per week) and $90,350 (for $200 per week). Mr Yarnold, the plaintiff�s husband, then by leave said that he and his wife were both practising Christians and realised that the figures can become astronomical and said he thought to have help in Australia for five years would be reasonable.

I was disappointed that Mr Lupalrea was not able to quote me any authorities especially when the claim is a large one and the head of claim is not a common one is Papua New Guinea. Counsel have a duty to assist the court with their research. H Luntz, Assessment of Damages in Personal Injury and Death (2nd ed), pars 4.1.10 and 4.1.11 discusses home help. In Simmonds v Hillsdon [1965] NSWR 837, the cost of a full-time housekeeper was allowed to a plaintiff who had both hands amputated. An allowance for cost of household assistance was given in Robinson v Riley [1971] 1 NSWLR 403 at 406-407 and also Reudhofer v Poledano [1972] VicRp 29; [1972] VR 287 at 295. In the latter case, the woman plaintiff suffered 80 per cent loss of function in an arm and was awarded a sum for home help estimated to be required for a period of five years post trial.

I turn now to the facts. The plaintiff engaged a housegirl at K10 per week pre-accident and in May 1986 after adopting three children employed her full-time at K25 per week. The cost of engaging the housegirl to do the housework she could not do is thus K15 per week. The past loss from May 1986 to the date of judgment (13 October 1987) is 73 weeks x K15 per week = K1095. I estimate that the plaintiff will stay in Papua New Guinea for the next five years so K15 pw x 5 years on the 3 per cent tables is K3,645. That is, K3,645 invested at 3 per cent (which is the current discount rate see Pinzger v Bougainville Copper Ltd [1985] PNGLR 160) would provide K15 per week for five years using principal and interest. I estimate that she will need homehelp in Australia for the next five years three hours a day five days a week, that is, 15 hours a week at $9 per hour. I consider that three hours a day is reasonable and not four hours because Australian houses tend to have more electrical aids (washing machines, driers etc) than Papua New Guinea; the houses tend to be smaller and more convenient to manage; washing is done less often in a colder climate, and household staff are likely to be better educated and therefore quicker and more efficient than in Papua New Guinea. I think three hours work a day reasonable. I have chosen the rate of $9 per hour as reasonable when I bear in mind that this home help is due to start in 1992 for five years. I note too that in a case of Burnicle v Cutelli [1982] 2 NSWLR 26 a rate of $6 an hour was allowed for house help in 1982, so $9 per hour is surely reasonable for the years 1992-1997. In applying the 3 per cent tables I note that the plaintiff will get the money now for the Australian wages to be first expended in 1992. I think the correct way to apply the tables is to say: What sum of money invested at 3 per cent over 10 years which will produce $135 per week less the sum of money invested at 3 per cent over five years which will produce K135 per week. The calculations are $61,020 less $32,805 = $28,215. This converts to K18,252 at an exchange rate of K1 = $1.5458. The total of the two kina sums for future home help is K21,897. It is usual to discount this sum to allow for the vicissitudes of life which include the possibility that the plaintiff�s back condition will significantly improve. I do so to K20,000. I add to this the pre-trial cost of home help of K1,095.

There will be judgment for the plaintiff for home help in the sum of K21,095 backdated to 13 October 1987, the date of the main judgment. The plaintiff will also recover her costs.

Judgment accordingly

Lawyer for the plaintiff: Henao Curningham & Co.

Lawyer for the defendant: Leo Au, Acting State Solicitor.