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Pep v Yamba and The State [1987] PGLawRp 558; [1987] PNGLR 485 (21 September 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 485 - George Pep v Bakri Yamba and The State�

[1987] PNGLR 485

N619

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PEP

V

BAKRI YAMBA

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

King AJ

17 September 1987

21 September 1987

DAMAGES - Personal injuries - Particular awards of general damages - Arm injury - Slow healing - Bone graft - Loss of 50 per cent efficient use - Villageman and employed shopkeeper - Male aged 24 (30 at trial) - Award of K15,000 general damages - Awards for future economic loss.

The plaintiff a villager who worked as an employed shopkeeper, aged 24 (30 at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injuries suffered were severe fractures of his left arm bones which took a long time healing and required a bone graft four years later. The residual disabilities included a deformed arm with about 50 per cent reduction in usefulness. As a result of his disabilities the plaintiff lost his employment as a shopkeeper and his ability to contribute to his village garden was considerably reduced.

Held

N1>(1)����� General damages for pain and suffering etc should be assessed a K15,000.

N1>(2)����� Future economic loss from reduction in village gardening skills should be assessed at K6,194.

N1>(3)����� Future economic loss from loss of employment should be assessed at K12,355.

Cases Cited

Amini, Peter v The State [1987] PNGLR 465.

Anis Wambia v The State [1980] PNGLR 567.

Statement of Claim

This was an action in which the plaintiff claimed damages for personal injuries as a result of a motor vehicle accident which occurred in September 1981. 7

Editor�s Note

An appeal to the Supreme Court was, by consent, dismissed.

Counsel

D L O�Connor, for the plaintiff.

J Puringi, for the defendant.

Cur adv vult

21 September 1987

KING AJ: This matter comes before the Court for assessment of damages only and arises out of a motor vehicle accident which occurred on 12 September 1981 on the roadway between Mt Hagen and Kelun Village.

The plaintiff was a passenger in a motor vehicle registered No ZGE 236 which was owned by the second defendant and being driving by the first defendant. The first defendant lost control of the vehicle whereby it overturned. The plaintiff suffered a comminuted fracture of his left radius and ulna, the left forearm bones. An early report dated 27 November 1981 of Dr Peter Flynn of the Mt Hagen hospital, where the plaintiff was hospitalised following the injury, noted that the fracture was a bad one and after 11 weeks was not completely healed. Dr Flynn anticipated at that time that the plaintiff would have �... a degree of disability for months after the plaster is removed�.

At the time of his injury the plaintiff was employed by Namasu Mt Hagen Pty Ltd and he gave evidence that after about three or four weeks in hospital he resumed work with his arm in plaster. The company records were available only from December 1981. They showed that the plaintiff was by then back at work which certainly displays stoicism. He said he had been employed by the company for five years before his injury performing the work of a shopkeeper, including unpacking and pricing stock. He said he had difficulty with his work after the accident and that when his arm �was bad� he could not work and that he was dismissed in 1983 apparently after some indications from his supervisors that his work was not satisfactory. He ceases to appear as an employee in the company records in 1983 but there is no mention of why he ceased employment. I regard the records as consistent with his evidence and I accept what he said. In 1985 he underwent surgery by way of bone graft to consolidate union of his fracture and he said that on that occasion he was hospitalised for a week whereafter his arm remained in plaster for three months. When the plaster was removed his arm was partialy immobilised in a sling for a further seven or eight months. Then he said he began exercising and moving his fingers to regain movement. The plaintiff went on to say that his arm is shorter, smaller (ie of less bulk) and weaker than his right arm. (He is right handed.) However, he said that following his convalescence from the 1985 surgery he had no pain but rather a sensation of itchiness in the arm from time to time. He displayed his arms to me and what I saw bore out his own comparison between left and right. In addition his left arm was noticeably deformed.

A more recent medical report from Dr Allan Kulunga dated 3 May 1986 was available. The last two paragraphs of that report are as follows:

�I saw him today and find that he has a very solidly healed fractured ends of the radius and that union has been achieved. There is no pain. However, he has no pronation, supination, has a deficient [sic] of 70 extension and a 10 deficient [sic] of full flexion at the elbow. The forearm is fixed at supination. The hand is moderately wasted and weak. His wrist joint is functioning well but the shoulder joint of the same arm is stiff and unale to abduct, internal, external rotation fully [sic].

Considering the last paragraph, I believe he has a total 50% permanent disability of the use of that arm.�

As well as working for Namasu Mt Hagen Pty Ltd, the plaintiff gave evidence that he assisted his wife in village gardening, mainly at weekends, in the period prior to his accident. Following the accident he said he could do no gardening work until after the 1985 operation. He agreed that thereafter he could do light gardening work and light work for an employer but had not been able to get work from the major local companies because �they were over staffed�. He said that because of his disabilities his income from sale of garden produce at the market had been reduced as well as his having lost his regular paid employment. His wife corroborated him as to his inability to assist as before in gardening work and although there was conflict between his evidence and hers as to the loss of income resulting, the wife�s evidence suggested the higher figure which was only about K400 a year or about K8 per week. That figure in my (admittedly brief) experience is a very modest one indeed and the defendant�s counsel hastened to say that he did not dispute it. It is indeed so modest that I do not think it should be discounted on the basis that some of it should be regarded as the wife�s income or on the basis that in theory at least an allowance for taxation is to be taken into account. Therefore I propose to allow the plaintiff past economic loss referable to the diminution in his gardening activities at the rate of K400 per annum � which produces a figure of K2,400 to date � and to allow his future economic loss referable thereto at the rate of K8 per week. He is now 30 years old and I think he should be allowed future losses in gardening income over 25 years. Using the 3 per cent actuarial tables that approach produces a figure of K7,275 which I reduce by 15 per cent for the vicissitudes of life to K6,194.

In relation to the plaintiff�s loss of income in his paid employment, he gave evidence of earning about K120 a fortnight. The copy records of Namasu Mt Hagen Pty Ltd showed varying monthly earnings perhaps a little lower than that but in essence suggested that the plaintiff�s evidence was not significantly exaggerated. Indeed neither he nor his wife seemed inclined to exaggeration in any respect. The plaintiff�s counsel submitted that I should allow a wage loss of K50 per week for say a month immediately following the accident and then for say two years representing the period, very roughly, between the plaintiff�s cessation of work in 1983 and his settling down after the 1985 operation. Thereafter, from 1985 to date and continuing, he conceded that the plaintiff�s evidence supported the conclusion that he could do at least light work and that his lack of earnings arose in past at least from the general unavailability of work on the labour market, and submitted that I should award a lower figure than K50 per week to compensate for the plaintiff�s undoubtedly reduced physical capacity for work. The defendant�s counsel argued that any figure assessed from 1985, onwards should be very modest and pointed to the fact that the plaintiff�s dominant right hand is uninjured and to the report of Dr Jacob dated 15 June 1987, on which the defendants relied generally.

I think it is reasonable to allow K50 per week for the periods suggested by the plaintiff�s counsel in the past and I award K5,300 in that regard. Doing the best I can I think a figure of K15 per week would be fair to both parties as representing the diminished earning capacity of the plaintiff after 1985. I award that figure from 1 January 1986 as an arbitrary commencement date thus entitling the plaintiff to a further K1,350 to complete his damages in respect of past economic loss. For the future, K15 per week for 25 years using the 3 per cent actuarial tables is K13,830, which I discount by 15 per cent to K12,355.

No claim for past or future out of pocket expenses was made.

Turning now to general damages, I followed my usual practice of calling on counsel to suggest a range. The plaintiff�s counsel suggested K18-20,000, which I thought a little high. The defendant�s counsel suggested K5-12,000 and cited Anis Wambia v The State [1980] PNGLR 567 in which case K5,000 general damages was awarded for a fractured leg which had healed, after insertion and removal of a steel pin, without shortening, wasting or deformity. Since in this case the plaintiff�s arm has all those defects, and I am assessing damages in 1987 rather than 1980, I think Wambia�s case is compelling indication that this plaintiff should be awarded appreciably more than K5,000 as general damages. I award the sum of K15,000.

The plaintiff claims interest on his past losses. For the reasons I gave in Peter Amini v The State [1987] PNGLR 465 I propose to allow interest on past economic (loss and past general damages from the date of injury to the present time at 4 per cent per annum. I assess past general damages at K10,000. The total of past economic loss in respect of gardening and employment) and past general damages is K9,050. Interest comes to about K2,472 which I round off at K2,400.

A summary of the plaintiff�s damages is as follows:

There will be a verdict and judgment for the plaintiff against the defendants in the sum of K46,999 including interest. I order the defendants to pay the plaintiff�s costs.

Verdict and judgment accordingly

Lawyer for the plaintiff: D L O�Connor.

Lawyer for the defendants: J Puringi.