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Moia v The State [1988] PGNC 67; [1988-89] PNGLR 299 (19 August 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 299 - Alfred Moia v The State�

[1988] PNGLR 299

N677

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ALFRED MOIA

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Bredmeyer J

15 August 1988

19 August 1988

DAMAGES - Personal injuries - Particular awards of general damages - Leg injuries - Fractures of tibia and fibula on both legs - Malunion of bones - Shortening of one leg - Loss of efficient use of legs for manual labour - Male aged 36 (39 at trial) - Bus driver - Award of K20,000 general damages.

The plaintiff, a male aged 36 (39 at trial) and employed as a bus driver, claimed damages for personal injuries arising out of a motor vehicle accident. The principal injuries suffered were fractures of the tibia and fibula of both legs, which were immobilised in plaster for 12 weeks. His disabilities, resulting from malunion, include shortening of left leg, wasting, some scarring and major loss of efficient use of both legs for heavy manual labour and driving a manually geared vehicle.

Held

Damages for pain and suffering and loss of amenities should be assessed at K20,000.

Cases Cited

Caswell v National Parks Board [1987] PNGLR 458.

Jones v Nominal Defendant (1984) 8 QLR 199.

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

Kunjil On v The Independent State of Papua New Guinea [1986] PNGLR 286.

O�Hello v Kayel Shipping Co Pty Ltd [1980] PNGLR 361.

Statement of Claim

This was an action in which the plaintiff sought to recover damages for personal injuries suffered in a motor vehicle accident.

Counsel

I Shepherd, for the plaintiff.

J Puringi, for the defendant.

Cur adv vult

19 August 1988

BREDMEYER J: The plaintiff was injured in a motor vehicle accident on the Ningerum-Tabubil Rd, on Saturday, 31 August 1985. Liability is not in issue so I have to assess damages. The accident occurred at about 8 am on that day. The plaintiff was the driver of a 25-seater Mitsubishi bus P7789 and was hit head on by a Government-owned Toyota landcruiser. The tibia and fibula of both legs were broken in the impact. His left leg was trapped between the dash which had crushed and the clutch pedal. Someone tried to prise his leg free with a crowbar but that failed. He then had the initiative to call for a spanner and was able to loosen the clutch fluid which in turn released the clutch. He was in great pain from the broken legs. His right knee was cut and bleeding as was his right heel. After freeing his leg he lay down on the front seat to await the ambulance which came an hour after the accident.

He was then given a pain killing injection which rendered him unconscious. He awoke at 7 pm that night to find that both legs had been put in a plaster cast up to the top of his thighs. He was given a bottle of blood and a bottle of clear fluid intravenously. He was to remain in that full length plaster cast for six weeks. During that time his knee and ankle got infected and the medical staff cut two holes in the plaster so that these wounds could be treated. After those full-length plaster casts were removed each leg was placed in a new cast up to his knees. He wore those shorter casts for another six weeks. Thereafter he was free to leave hospital and walked about with the aid of crutches.

His present physical disabilities are described in reports of Dr Danomira dated 17.12.85 and 15.8.88. He has a malunion of the bones in his left and right leg, in each case the bone fragments overlap by 1 cm. The left leg is 1 cm shorter than the right leg. His left thigh is 1 cm smaller in circumference than his right thigh showing some disuse atrophy. The doctor says he has lost 75 per cent of the efficient use of his left leg below the knee for the purpose of heavy manual labour; and 50 per cent loss of the efficient use of his right leg below the knee for the purpose of heavy manual labour.

On my observation the left foot faces out a bit as he walks. I could see the malunion of the bone join in each leg. On the left leg he has a 1� scar on the shin near the ankle and a 1�� diameter scar on the inside of the knee. Neither scar was unsightly. On the right leg he had a 2� or 3� diameter scar and a bony prominence on the right heel. I did not find these scars and deformities particularly unsightly. The plaintiff told me that other scars on both shins and above his right knee, all of which I saw, were not caused by this accident. He cannot wear shoes but given his simple life style I do not think that is much of a handicap.

I thought the plaintiff a truthful witness. He saw his disabilities this way: he can walk but his two legs get heavy if he goes for a long walk: he cannot run, play football or sports, which is compensable, but I bear in mind that he was 36 at the date of the accident, an age when most people have retired from sports. He said, �If I build a house I would not climb up to the top�. He said his right leg is stronger than the left. He can drive an ordinary car and he could drive an automatic (but, not a manual bus). He said pedals on the manual bus or truck are too heavy for him to manage as he lacked power in his lower legs, especially the left one. He does not garden as that is done by his wife�s people. He does not take any pain killers.

On pain and suffering and loss of amenities I have been referred to O�Hello v Kayel Shipping Co Pty Ltd [1980] PNGLR 361 (K20,000), Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365 (K19,000), Kunjil On v The Independent State of Papua New Guinea [1986] PNGLR 286 (K18,000), Caswell v National Parks Board [1987] PNGLR 458 (K22,000) and Jones v Nominal Defendant (1984) 8 QLR 199. I consider that fair compensation under this head is K20,000.

SPECIAL DAMAGES

At the time of the accident the plaintiff was driving a manual 25-seater bus owned by the N K Business Group of which he was a leading member. Before that he had driven heavy duty equipment for Works and Supply for 16 years. He was paid K60 a week net for driving the PMV bus and I accept his evidence that his injuries prevented him getting a similar job for some time afterwards. He is claiming loss of wages from the date of the accident 31.8.85 to 14.4.88 without any projection into the future, ie, two years eight months at K60 pw = K8,320. I think that reasonable and I award that sum.

INTEREST

I apportion the damages for pain and suffering: K14,000 to the past and K6,000 to the future. Following Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 at 174, interest will be awarded on the past loss at 8 per cent from the date of service of the writ, which I take to be 12.1.87, to the date of trial 19.8.88. That is K14,000 x say 19m x 8% = K1,773.33.

Interest on past loss of wages runs from the date of accident (31.8.85) to the date of trial (19.8.88) at half the appropriate rate: Pinzger. That is say three years x K8,320 x 4% = K998.40.

In summary the awards are:

I award costs to the plaintiff and those costs are to include the costs of bringing a witness as to liability from Kiunga as the plaintiff was not told by the defendant�s counsel that liability was not in issue until the beginning of the trial on 12 August.

Verdict and judgment accordingly

Lawyer for the plaintiff: Joseph K Pakau & Associates.

Lawyer for the defendant: State Solicitor.