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Paul, an Infant, by Her Next Friend, Dan Paul v Kare [1988] PGNC 3; N659 (5 April 1988)

Unreported National Court Decisions

N659

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. 503 OF 1986
KUNDIA PAUL AN INFANT BY HER NEXT FRIEND DAN PAUL
PLAINTIFF
AND
ANTON KARE
1ST DEFENDANT
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
2ND DEFENDANT

Mount Hagen

Hinchliffe J
14 September 1987
19 September 1987
5 April 1988

DAMAGES - Personal Injuries - Fractured skull - Lacerations to arms and face - Left supracondylar fracture - Fracture of radius and ulnar of left forearm - Shortening of left arm - Girl aged two years at time of accident - Assessment of K10,000 general damages plus K866 interest.

The plaintiff was injured when the motor vehicle she was travelling in as a passenger overturned on the Highlands Highway. She was two years old at the time.

The plaintiff has recovered reasonably well except for a shortening of the left arm and an obvious scar on the forehead.

Held:

Damages awarded in the sum of K10,000 plus K866 interest.

Writ of Summons

This was an assessment of damages for personal injuries suffered in a motor vehicle accident.

Counsel:

D.L. O’Connor, for the Plaintiff.

D. Lambu, for the defendants.

Cur. Adv. vult.

5 April 1988

HINCHLIFFE J: On the 3rd Feb, 1985, the the plaintiff was injured when the motor vehicle she was travelling in, as a passenger, overturned between Kerowagi and Korongil Bridge on the High Highway. The first defendant was driving the said motor veor vehicle, which was owned by the second defendant. At the time of the accident the plaintiff was about two years old. Liability is not in dispute and the matter comes before this Court for assessment of damages.

Mr. Dan Paul, the father of the plaintiff, gave evidence and stated, inter alia: “At the time the vehicle overturned I saw the small girl, Kundia, in the middle of the road. The ambulance took us to Kerowagi Hospital and after about half an hour we went to Kundiawa Hospital. ............... at Kundiawa I saw she had a broken left arm and a cut at the back of the head and on the left rib side .............. she was in the hospital for about six weeks.”

When asked the question: “Since she left the hospital what have you noticed,” he replied: “From the time of the accident until now, about midnight, she wakes up and shouts or cries.” The witness went on to say that that only happens “sometimes” and that there was nothing else about his daughter that causes him any concern.

During the hearing of this matter I looked at the plaintiff’s injuries and I observed the following:

1. &##160;; S60; Scar toar to the top of her forehead.

2. &##160;; S60; Scars tars to the left side of the head and arms.

3.ټ&##160;; Scars to the side of the tthe tthe torso.orso.

Two medical reports were tend tendered. Dr. John Mckup, Acting Medical Superintenat thdiawa Hospital, sal, saw the plaintiff on the 23rd August, 1985. He said, inter alia: ̶“When seen today the child appeared to be in good health.

The parents complained that she was said to be irritable and cries a lot at times. She becomes easily upset at times.

Examination of this child revealed a fractured skull with extensive callus and deformity over her scalp.

Scar tissue over her face. Arms left old supracondylar with remouling. Also restriction to extension of left elbow.

I think this child has a degree of mental retardation which needs further assessment by a pediatrician.

Her other deformity accounts for a 5% disability of efficient use of left elbow and 5% cosmetic disability for her face and skull.

A mental assessment will be made by a pediatrician on his next visit to Kundiawa.”

Dr. McKup, on the 1st October, 1985, added the following to the said report: “Kundia had sustained the following injuries - fractured base of skull, lacerations to both arms, laceration to face. Left supracondylar fracture, fractured radius and ulnar of left forearm.

TREATMENT

She was covered with antibiotics and laceration cleansed and ‘dressed.’

Her fractures reduced and POP applied.

She recovered and up till now has the above residual deficits.”

It does not seem that the matter of mental retardation was taken any further as there certainly was no evidence of it produced in Court.

On the 15th July, 1987, Dr. Allan Kulunga of the Kintip Surgery, Mt. Hagen saw the plaintiff and prepared a report. He said, inter alia: “........... the father claims ............ that she sometimes acts abnormally.

On clinical evaluation I note the following:

(a) &##160;; Child lild looks ioks in normal health and intellectually.

(b) lefe uppe arm is two centicentimetres shorter than the right upper arm.

(c) ..............

X-rays-rays take taken todn today shay show thow the following:

(a) &##160;; There iere is post posterioly displacement of the medical epicondyle epiphysis. This is the growing end of the bone and which has accounted for the short of tft upper arm.

(b) & #16.; ................................... .

This child apart from sufferings of the trauma will develop a shorter left arm and is also likely to develop a medical valgus from normal growth of the lateral epicondyl epiphysis.”

There is no doubt that the plaintiff suffered quite severe injuries due to the accident. Indeed she was hospitalised for six weeks. She seems to have recovered quite well except for an obvious forehead scar and the fact that she will grow to adulthood with her left arm shorter than the right. It also seems likely that some deformity will develop in the left arm. It is clear that in the future she will not have full use of her left arm and I suspect that it will cause her some embarrassment.

Counsel have referred me to a number of past cases but unfortunately none really cover the present one. I have read those cases and as is the situation in all these types of matters, they are a useful guideline.

Mr. O’Connor has submitted that K20,000 would be a proper figure for general damages, whereas Mr. Lambu has suggested a figure somewhere between K5,000 and K9,000.

After considering the evidence and past cases I am of the view that a fair and proper sum is K10,000.

I order that there be Judgement for the plaintiff against the second defendant in the sum of K10,866:00 made up as follows:

Further order that the second defendant pays the plaintiff’s costs on the National Court scale as agreed upon or taxed and it is ordered that the said sum of K10,866 be paid into court to be invested by the Registrar on behalf of the plaintiff and not paid out in whole or in part without the order of a judge of the National Court until plaintiff reaches the age of eighteen years deemed to occur on the 31st December, 2001.

Judgement Accordingly.

Lawyer for the Plaintiff: D.L. O’Connor

Lawyer for the Defendant: State Solicitor