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Guli v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 105; [1994] PNGLR 304 (5 September 1994)

PNG Law Reports 1994

[1994] PNGLR 304 - Timinti Guli v MVIT�

[1994] PNGLR 304

N1255

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TIMINTI GULI

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

15 August 1994

5 September 1994

DAMAGES - Personal injuries - Village man - Post-concussion syndrome - Assessment.

Facts

The plaintiff was knocked down by a motor vehicle and received injuries to his lower leg and head. He was about 29 years of age, married with a wife and two children, and subsisted through working vegetable gardens, growing coffee, and selling the produce. A doctor who examined the plaintiff in 1993 assessed that he had a post-concussion syndrome. The defendant submitted that the evidence for this condition was too vague and that the plaintiff had shown no inability to answer questions, or any difficulty with speech or memory. The Court was satisfied that there was some evidence of post-concussion syndrome but said it was not serious enough to warrant continual medical attention and a psychiatric examination.

Held

There was some evidence of post-concussion syndrome. Allowing for a healed fractured leg and finding there to be no permanent disability, general damages are assessed at K11,000.

Cases Cited

Landao v PNG [1988] PNGLR 279.

Lewis v PNG [1980] PNGLR 219.

MVIT v Pupune [1993] PNGLR 370.

Pose v PNG [1981] PNGLR 556.

Counsel

P Dowa for the plaintiff.

A Kandakasi for the defendant.

5 September 1994

WOODS J:� This is a claim for damages for injuries received by the plaintiff when he was knocked down by a motor vehicle on the road at Pugamul Market in the Western Highlands on 26 October 1990. There is no issue on liability, as the parties have agreed on an apportionment of liability at 70 to 30 in favour of the plaintiff. So this was a trial on the assessment of the damages.

The plaintiff said he received injuries to his lower right leg and to his head. He said he was knocked unconscious and was unconscious for a few hours. He said that he spent some two months in the hospital after the accident. He said that since the accident he has problems with his leg, which affects his ability to do the manual work in gardening in the village. He also suffers from headaches and does not have a proper sense of things. However, from the way he answered questions in court, he did not seem to have any difficulty in presenting his case and telling his story. And he was quite aware of normal things going on. He is aged about 29 years; is married, with a wife and two children; and subsists through working vegetable gardens and coffee and selling the produce. He gives some general figures which accord with the general assessment of a subsistence village livelihood, relying on vegetables and coffee. However, he states that he can no longer do this successfully.

The evidence from the hospital at the time of the accident is that the plaintiff was admitted with concussion, abrasions to the face, and a fracture of the right tibia. The doctor stated that a closed reduction of the right leg was done and, after a good recovery, the plaintiff was discharged on crutches two weeks later. The doctor reviewed him in March 1991, four months after the accident, and he noted that the fracture had healed well and showed good signs of clinical union. He also referred to complaints of occasional headaches associated with dizziness.

There was evidence by two doctors on their examination of the plaintiff. Dr Kulunga examined the plaintiff in October 1991, a year after the accident. He generally found that all the vital signs were intact, and systems and organs intact. With reference to a broken leg, he found that the fracture had healed well despite the obvious callus and lumps felt. With respect to the complaints of headaches and dizziness, he assessed that because of the claimed loss of consciousness at the time of the accident, the plaintiff may have been suffering from post-cerebral concussion syndrome. Dr Kulunga put a figure of 25 percent permanent disability from that. He stated that the effect of the concussion was not such that the plaintiff required further medical attention, but it would affect his daily life.

Dr Akalanana examined the plaintiff in June 1993. He found a permanent problem with the right leg, in that it was bowed or caved in, suggesting some kind of malunion, and this was affecting the leg's weight-bearing ability. What is interesting here is that the doctor apparently saw three earlier medical reports, and none of them made any reference to any shortening or limping with the right leg. The doctor also assessed a post-concussion syndrome. Combining the leg disability with the concussion syndrome, he assessed a permanent disability of 40 percent.

Evidence was given by a relative, Kuta Yaka, who stated that since the accident the plaintiff no longer works in the garden, and when people try to talk to him, he gets angry and does not think properly.

It is submitted for the defendant that the assessments of disability for the post-concussion syndrome are too vague and that there is no definite evidence of any brain injury. It is submitted that the plaintiff seems to be able to answer normal questions and has no problems with speech and memory. Whilst realising that the doctors' evidence is based initially on what the plaintiff told them a year and some years after the accident, it is not disputed that the doctors may have been able to clinically observe some minor problems, but they have not presented any evidence of serious brain injury. There is no history of regular treatment, just visits to two doctors for reports in the years after the hospitalisation.

The plaintiff is claiming for general damages for pain and suffering and for economic loss, based on his inability to work in his gardens. The evidence is not really clear that there is any permanent disability with the leg. Whilst the evidence on the post-concussion syndrome is vague, I am satisfied that there may be some difficulty, although not on the scale suggested by the latest doctor. It is clearly not serious enough to need continual medical attention and a psychiatric examination. In Lewis v PNG [1980] PNGLR 219, there was clear evidence of confusion and progressive memory disturbance, and K25,000 in general damages was awarded. In Pose v PNG [1981] PNGLR 556, there was brain damage which resulted in minor loss of function of the right arm and leg, and K9,000 was awarded. In Landao v PNG [1988] PNGLR 279, there was difficulty with walking and keeping balance, and K9,000 was awarded. In MVIT v Pupune [1993] PNGLR 370, the plaintiff complained of frequent headaches, defective memory, defective consideration, a persistent left facial nerve paralysis, excessive laceration from the left eye, and a forehead scar. The Supreme Court assessed general damages at K11,000. The plaintiff in the case before me seems to be in a similar situation to Pupune's case, but without the permanent facial nerve paralysis. So, allowing for the fractured leg which has healed, and not being satisfied there is any permanent disability there, I would agree that an amount of K11,000 should be awarded for general damages.

For economic loss, it is claimed that because of the injuries and inability to properly function in a rural subsistence and cash crop society, the plaintiff has suffered an economic loss of K5 per week for the rest of his working life, namely from age 29 years to 55 years, being 26 years. The defence has submitted that the economic loss is only because the plaintiff has decided not to work any more in the garden, and not that he is physically unable. I will find that there may be a reduced ability to properly do all the hard work that would be required. The figures presented in evidence are too vague, as is usual in the rural economy, so the Court is really left to make its own assessment. I will assess an amount of K3 per week which from the date of the accident to date, comes to K603. Interest on that, at 4%, is K93.12. For future economic loss, I capitalise K3 per week for 26 years, his present age is assessed at 29; using the 3% tables, that comes to K2,841.

To summarise:

I order judgment for the plaintiff in the sum of K11,030.90.

Lawyer for the plaintiff: P Dowa

Lawyer for the defendant: Young & Williams