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Papua New Guinea Law Reports |
[1988] PNGLR 302 - Lus Minjuk v The Independent State of Papua New Guinea
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
LUS MINJUK
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Wabag
Hinchliffe J
8-9 September 1988
13 September 1988
DAMAGES - Personal injuries - Particular awards of general damages - Nose, hip and knee injuries - Depressed fracture of nose - Lacerated knees - Toenail torn off - Continuing weakness in knees - Possibility of osteoarthritis in hip - Male police officer - Award of K15,000 general damages.
The plaintiff, a male police officer, claimed damages for personal injuries arising out of a motor vehicle accident in which he was a passenger. As a result of the accident the plaintiff suffered a depressed fracture of the nose, lacerations to both knees, an injury to one hip and had a toenail torn out. After 20 months the plaintiff had returned to light duties with permanent disability to the nose causing difficulty with breathing, continuing weakness in one knee and the possibility of osteoarthritis in the hip. The plaintiff�s participation in sporting and other similar activities is permanently restricted.
Held
Damages for pain and suffering and loss of amenities should be assessed at K15,000.
Case Cited
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.
Statement of claim
This was an action in which the plaintiff sought damages for personal injuries suffered as a result of a motor vehicle accident.
Counsel
J Pakau, for the plaintiff.
Cur adv vult
13 September 1988
HINCHLIFFE J:� The plaintiff was injured on 10 November 1984 when the motor vehicle in which he was travelling as a passenger rolled over when it left the Wapenamanda and Wabag road in the Enga Province. The said motor vehicle was a police motor vehicle and the plaintiff, who at the time was and still is a policeman, was on duty. The driver of the motor vehicle died from injuries he received in the accident.
The plaintiff gave evidence of the police motor vehicle travelling at a high speed and when he asked the driver to slow down he in fact increased the speed. According to the plaintiff the motor vehicle was travelling fast down the hill and he said:
�The motor vehicle jumped off the road and then it rolled three times down the hill. It rolled many times. It rolled down to the creek.�
The road accident report indicates that the accident occurred at a bend on the road and it seems to me that it is reasonable to infer that the motor vehicle, because of excessive speed, failed to negotiate the bend thereby running off the road and rolling over.
The plaintiff gave clear and precise evidence regarding the accident and his evidence combined with the information in the road accident report satisfies me that the driver of the motor vehicle was negligent in his driving and I hold him responsible for the accident. Clearly there was no negligence on the part of the plaintiff.
The driver of the police motor vehicle was a policeman who was also on duty at the time and there is no doubt in my mind that he was a servant and agent of the defendant. Indeed the defendant admits this in par 2 of its defence filed on 29 April 1987.
The plaintiff also gave evidence in relation to the injuries he received. He said that he was knocked out and didn�t know anything for two or three days. He talked about �waking up� in hospital and the clear indication from the plaintiff was that he was unconscious for two or three days. That, of course, becomes very important evidence when assessing damages, if it is correct. Unconsciousness combined with other injuries can at times attract substantial damages. But that part of the plaintiff�s evidence is not supported by the medical evidence. In his report of 26 November 1985, Dr Kuria Nemba of the Sopas Adventist Hospital via Wabag, states, in the second paragraph as follows:
�I attended him in the out-patient department and in the wards. He was bleeding from the mouth, nose and right knee. He was fully conscious, alert and awake. He was not in shock but was in pain and agony.�
I prefer the doctor�s account regarding the state of consciousness of the plaintiff for obvious reasons. He is a trained medical practitioner who observed and treated the plaintiff on his admission to the hospital. On the other hand the plaintiff had recently been injured in a serious accident and was experiencing considerable pain. It is reasonable to infer that he would not be thinking clearly or functioning properly. It may well be that he now has no recollection of the first two or three days after the accident but I am well satisfied that he did not fall into unconsciousness.
There is no dispute that the plaintiff was hospitalised for three weeks although the plaintiff inferred in his evidence that he was prematurely discharged from the hospital because of accommodation problems. There is certainly nothing to indicate that from the medical reports and I would be somewhat surprised if he was so discharged. I am inclined to the view that the plaintiff was properly discharged after three weeks hospitalisation.
There is no doubt that the plaintiff suffered considerable pain because of the accident. He said that at the Sopas Hospital his whole body was paining and that there was a bone protruding from his broken nose. He also stated that there was a large cut behind his right knee and that his left knee was swollen. A toenail had been torn from his right foot and his hip also pained. He also said that he vomited blood and that his nose bled. The plaintiff said that he could not walk and that he was assisted with his walking for one week.
The medical reports support most of what the plaintiff said regarding his injuries but I am not satisfied that he had bone protruding from his broken nose. In the said medical report Dr Nemba went on to say the following:
�X-ray examinations revealed fracture of the nasal bone, but no fracture or dislocation seen on the chest, left or right knee x-rays. The nasal bone was reduced and wound cared for.�
From the report it seems to me that if there had been bone protruding from the plaintiff�s nose on his admission to the hospital then the doctor would have said so. I suspect that the plaintiff is confused on that point and indeed he has stated that he has no recollection of events for two or three days after the accident. Therefore it would seem that he could not have first hand knowledge of bone protruding from his nose on admission to the hospital and it is either an assumption on his part or incorrect information that he has received from another person.
The evidence relating to the cut knee and the loss of a toenail is supported by Dr Nemba in his report when he said:
�Deep laceration of the right knee was sutured in layers. Right big toenail was lost and wound cared for. He was given intravenous fluids and antibiotics.
He was discharged after being in the hospital for a total of three weeks.�
The plaintiff did not return to work until July 1986 as he was not fit enough. As it is he is now only on what could be described as �light duties�. It is significant that the plaintiff did not resume work for 20 months or so after the accident as it indicates that he did suffer severe and long lasting injuries. Some of those injuries, to a lesser degree, are still with him and it seems from the medical evidence and reports that he has suffered some permanent injury.
Constable Minjuk stated that he now has no strength in his legs because of his knees and that he is still receiving treatment to relieve the pain. In answer to a question from me he said that he takes two pain killing tablets each day and if he does not take the tablets then he feels pain in his knee, hip and over his body.
Part of the plaintiff�s examination-in-chief went as follows:
N2>�Q:���� After you were released have you experienced any pain?
N2>A:������ Yes. My left knee still pains and my nose blocks. The doctors advise me to see a specialist for my nose and knee.
N2>Q:����� Are you able to do any heavy duty work?
N2>A:������ I can�t chase men or go on patrol.
Judge:What do you do?
N2>A:������ I work at the station as a duty man at the counter.
N2>Q:����� Can you work in the garden?
N2>A:������ Because of my bad knee I cannot use tools.
N2>Q:����� ... any problems during the night?
N2>A:������ I get pain in the night and my nose gets blocked and it is hard to breathe.
N2>Q:����� Have you seen a specialist yet?
N2>A:������ I have no money at the moment.
N2>Q:����� If your claim is successful will you see a specialist?
N2>A:������ Yes.�
Later on the plaintiff stated that he can no longer participate in soccer, softball, volleyball and athletics as he did at a non-competition level prior to the accident. He also said that he can no longer cut wood or run and that he now experiences headaches in the hot sun.
During the course of the trial the plaintiff demonstrated his walk and he did so with a slight limp. It could be suggested that he exaggerated the limp for the purposes of the court case but I must say that I was not left with that impression. He also showed the court his bent scarred nose and the scar to the rear of his right knee. Some questions I asked went as follows:
N2>�Q:���� Do you have difficulty in breathing?
N2>A:������ In the night when I go to sleep I find it difficult to breathe. I feel dead.
N2>Q:����� Do the injuries affect you playing with the children?
N2>A:������ I used to play with the children in the back yard, now I can�t do it. I can�t chase them when they make mistakes.
N2>Q:����� Before the accident how often did you go to the garden?
N2>A:������ When off duty I would go to the garden. I would help my wife. She still goes to the garden but I can�t go anymore.
N2>Q:����� Does that worry you?
N2>A:������ Yes, because I am head of the family and I can�t look after the children and that worries me.�
He also stated earlier that his wife now did all the work around the house and that the children help on their return from school.
The plaintiff�s present complaints are largely supported by medical evidence. In his report Dr Nemba said the following:
�Assessment today revealed depression of the right nasal bone and difficulty in breathing. The left knee is unsteady and wasting of the left quadriceps muscles. An evident scar of the right knee laceration and loss of the right toenail.
He is also complaining of pain in the right loin radiating down the hip and legs. This I could not find very much on examination including an x-ray study.�
On 27 June 1986, Dr Allan Kulunga of the Kintip Surgery, Mt Hagen, saw the plaintiff and reported, in part, as follows:
�... he has a healed but unreduced depressed fracture of the right nasal bone. It is cosmetically disfiguring and makes it hard to breathe especially when he has a cold. This is so because of the almost occlusion of the right nasal orifice by the depressed fractured nasal bone.
He has tenderness at the right sacro-iliac joints. His hip joint is free and has tenderness over the left medial ligament of the knee.
... He has no quadriceps wasting and both his knee joints are fine.
... There is no toenail on right toe.
I believe he will have progressive osteoarthritis of the right sacro-iliac joint if he continues to do heavy work and also he may need further surgery to his depressed fracture left nasal bone if he wishes. His left ligament tenderness will also get worse if he continues to do heavy walks or work. ... he has a 40% disability to perform as a policeman.�
Dr Otto Numan, the medical officer in charge of the Wabag Health Centre, gave evidence and also his report on the plaintiff dated the 21 September 1987, was tendered.
Dr Numan seemed more optimistic about the plaintiff�s future than did Dr Kulunga and in part his report went as follows:
�Nose:
The right nasal cartilage (bone) is depressed downwards and medially partially occluding the right nostril leaving a very small orifice for breathing purpose.
This defect on its own does not and should not give the patient any trouble. However he will have difficulties during attacks of common cold of flu like illnesses when temporary obstruction of the left nostril occurs during congestion of the nostril.
Toe:
His right toe is completely normal ...
Knees:
The right knee except for the presence of the scar is normal in all respects. However the left knee is somewhat swollen and there may be some fluid in the knee joint. There is still some tenderness of the knee on flexion and extension of this joint.
I suspect he has medial meniscus problem of his left knee. He won�t be taking part in sports and won�t use the knee for running, heavy lifting and so on. It would be fine doing office duties, but jobs requiring walking distances should be prohibited until further workup and management is undertaken.
Hip:
He did not mention anything about his right hip problem, although he talked about his other injuries. I did notice that he had no difficulty using his right lower limb which was contradictory to his last report. Should he have any osteoarthritis he would surely have symptoms and signs in his right hip joint.
Although this patient must have suffered a lot of injuries initially, medical treatment and time has done a lot and a lot of the injuries have healed except for the right nasal deformity and the left knee problem which may require further surgery.�
In his sworn evidence Dr Numan said that he did not think the plaintiff had osteoarthritis because he (the plaintiff) did not mention the right hip. He thought that if it was osteoarthritis he would have mentioned the hip in the first place.
The witness also stated that he thought the left knee problem was a torn cartilage and that an operation could mend it. But still he would have to be careful working in the garden. His knee would still affect his life.
From all the evidence before the court it seems to me that in the beginning the plaintiff suffered considerable pain, in particular to the nose and both knees. Also he had a toenail torn out and he also suffered pain in the right hip region. I am satisfied that his injuries were serious enough to cause him not to work for some 20 months and then to go back to work only on light duties. He is still on light duties and he is still receiving medication for pain. It seems to me that his nasal injury is permanent and even though an operation is advisable it will not bring complete relief. The plaintiff will continue to have difficulties in breathing in particular if he has a cold or the like. It would also affect him if he had to exert himself like climbing up steep slopes or working in his garden. That of course becomes very relevant when living in the Highlands. His nose is also scarred and bent through the accident.
Even though initially the plaintiff had problems with both knees I am satisfied that apart from a rather large scar, his right knee has now mended. His left knee causes him considerable pain but it does seem that an operation could bring welcome relief. Clearly he cannot work in his garden at the moment because of his left knee but with an operation I am satisfied that he could once again work there. That would be more of a light type of work because with an operation or not the plaintiff is likely to have a weaker left knee for the rest of his life. To be able to work again in his garden would certainly be more satisfying for him because at the moment he feels he is not fulfilling his role as head of the family. Being in that frame of mind at the moment would cause tension and strain and a feeling of inadequacy. It is also important that he has the knee operation because when he leaves the police force it is probable that he will go back to his village and then the garden becomes important for survival. It would also become important as far as status in the village is concerned, because one hears in cases from time to time that people who are incapacitated and cannot make a contribution are sometimes looked down upon.
Although Dr Kulunga and Dr Numan appeared at first to differ with each other in regard to osteoarthritis, I am not quite so certain that that is the case. From the evidence it seems to me that at this moment the plaintiff does not have osteoarthritis but if he was subjected to heavy work, running and so on, then osteoarthritis is a possibility. I am of the view that I cannot take it any further than that.
It is clear also that the plaintiff can no longer participate in sports or play freely with his children. It would seem to me that even an operation on his left knee would not improve his sporting situation but I would have thought that it would allow him once again to play with his children, assist in the housework and chop wood.
Up until now the plaintiff has suffered fairly severe pain over a period of almost four years. That is a reasonably long time and it seems that the pain will continue, although probably not to the same extent.
Therefore I must now consider an appropriate figure for pain, suffering and loss of amenities.
Mr Pakau mentioned several past cases but as he pointed out none were similar to the present case. That is usually the situation and past cases are purely a guideline.
After taking everything into consideration I am of the view that the proper figure for pain, suffering and loss of amenities is K15,000.
I accept the figure of K510 as the cost of the proposed nose operation and I shall include the figure in my final order.
In accordance with Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, I award interest on pre-judgment pain and suffering at 8 per cent from the date of the service of the writ to the date of trial (23 February 1987 to 8 September 1988). I fix the figure on pre-judgment pain and suffering at K11,000.
Therefore I order that there be judgment for the plaintiff in the sum of K16,864 made up as follows:
|
Pain and suffering and loss |
|
r>
|
of amenities of life |
K15,000 |
|
Interest |
1,354 |
|
Future medical expenses |
510 |
|
td> |
K16,864 |