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Toropo v Awabe [2001] PGNC 113; N2116 (1 August 2001)

N2116

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. No. 178 of 2000

BETWEEN:

TUMUNDA TOROPO

Plaintiff

AND:

JACK AWABE

-1st Defendant-

THE STATE

-2nd Defendant-

Mt. Hagen: Hinchliffe J
2001: 7 May & 1 August

PERSONAL INJURIES – Motor Vehicle accident – Damages for pain and suffering – Part economic loss – Broken fractured leg – fracture reduced – Bruising – 10% to 15% loss of effective use of right leg – General damages awarded in the sum of K 9,500.

Counsel:
P. Dowa for the plaintiff.

1 August, 2001

Hinchliffe J: This is an assessment of damages in relation to injuries received by the plaintiff in a motor vehicle accident on the 19th July, 1999. The defendants have elected not to defend the claim and hence Default judgement was entered on the 30th May, 2000. The only evidence before the Court is an affidavit of the plaintiff dated the 31st October, 2000. Annexed to that affidavit is a Medical report of Dr. N. Badia dated the 5th November, 1999.

It reads as follows:

5th November, 1999

TO: WHOM IT MAY CONCERN

RE: MEDICAL REPORT – TUMUDA TOROPO, MALE/ADULT

The above mention person was seen in the Consultation Clinic after discharge from the Hospital on the 30/07/99.

Patient had a compound fracture of right tibia which was pinned and causes severe pain on moving the limb.

He had received bruises on the upper part of the whole right leg which took cover later.

On examination, it shows to have no problem with the superficial injuries but should have some internal problems in the future.

In my opinion the patient may have lost about ten (10%) to fifteen (15%) of his normal function of the right limb.

For your information only.

DR N. BADIA

Surgical Register

Mount Hagen Hospital

In paragraphs 6, 7 and 8 of the plaintiff’s said affidavit, he says as follows:-

As a result of the accident I received severe injuries which are particularized in the medical report. I particularly sustained a fracture to my right tibia and bruises to various parts of the body. I was then admitted to Mount Hagen General Hospital for treatment where I received treatment. Also particulars of treatment are set out in the medical report of Dr. Badia. The fracture side was reduced; I was given an analgesic and antibiotics. As a result of the injuries I now have permanent disabilities. I found it difficult to travel, carry or take on weight. I found it difficult to play and run.

However the fracture was reduced and I was in plaster cast. Because of the injuries I was not able to return to my job of driving. I was unable to get a job. I was out of work for eight months. I was able to get employed again as a PMV driver. I am currently driving Inpeta Angela’s vehicle. Because of the injuries I was out of job for more than eight months. When calculated at the rate of K150.00 per fortnight I missed 16 weeks of salary which is in the sum of K2,400.00 and I claim same. Even now I have difficulty in using my feet in driving as I press on the accelerator or the brake peddles I sometime sustain pain if this goes on any longer period. I am not too sure how long I will last in the driving career. I don’t have any formal education or employment or qualifications for purposes of continuing to be employed in employment.

If I lost my job as a driver I also found it difficult to work in the gardens. I can not effectively earn an income in the village. I am married with one child and at present I am about twenty-six (26) years old and I have a long working life. The injuries have caused me lot of problems. For medical I have expended more than K65.00 in medical related expenses. I have also spent a lot of money in attending medical treatments etc.

The plaintiff was unable to work for eight months after the accident, which on my calculation means that he started working again in about March of 2000.

As I understand it he is still working. This man has received a broken leg from the said accident which needed to be pinned. He has a 10% to 15% permanent loss of function of that leg. He experiences now, some pain in the leg when driving but he does not say much more than that. Whether or not he is entitled to an award for loss in reduced capacity is impossible for me to decide on the evidence before me. Certainly he is entitled to loss of income for eight months as well as damages for pain and suffering together with interest thereon.

General Damages: Counsel has cited two comparable cases. First is George Kiak v Tora Enterprises (1986) PNGLR 265 where the plaintiff suffered a fractured tibia/fibula with 75% loss of function and was awarded K35,000.00. The second case referred to by Counsel was John Kapal v MVIT WS NO. 1289/90 60% disability was paid K25,000. On those figures, where the plaintiff in this case has lost 10% to 15% function of his right leg, the appropriate award would be about K5,000 to K6,000. However the two cases referred to go back a considerable number of years and in that time there have been many changes. The most outstanding change is the very noticeable decline in the purchasing power of the kina and I am of the view that I must take note of that when considering an award for general damages. It would seem to me that a fair and reasonable figure for pain and suffering and loss of amenities of life is K9,500 and I so order. In accordance with Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 the plaintiff is entitled to interest at 8% from the date of service of the Writ of Summons to the date of trial. That is a figure of K886.66.

Part Economic Loss: The plaintiff was unable to resume driving for 8 months and his loss of salary at the rate of K150 per fortnight for 16 fortnights amounts to K2400. I am of the view that he is entitled to that figure, and I so order.

Also in accordance with Pinzger v Bougainville Copper Ltd (supra) interest would run at 4% from the date of the accident to the date of trial. That is a figure of K176.

Special Damages: The plaintiff is claiming K65 for medical and related costs and that does not seem to be unreasonable.

I order that there be Judgement for the plaintiff in the sum of K13,027.66 made up as follows:-

Pain and suffering and loss of amenities of life K 9,500.00

Interest thereon K 886.66

Past Economic Loss K 2,400.00
Interest thereon K 176.00
Special damages K 65.00

TOTAL K13,027.66

I further order that the second defendant is to pay the plaintiff’s taxed costs.

Orders accordingly.
____________________________________________________________________________
Lawyers for the plaintiff, Paulus M. Dowa