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Aura v Papuan Airline Transport Ltd [1964] PGSC 2; [1964] PNGLR 162 (31 May 1964)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 162 - Rouney Aura v Papuan Airline Transport Limited

[1964] PNGLR 162

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROUNEY AURA BY HIS NEXT FRIEND

WILLIAM SYDNEY PECKOVER

V

PAPUAN AIRLINE TRANSPORT LIMITED

Port Moresby

Smithers J

30-31 May 1964

NEGLIGENCE - Damages - Partial loss of vision of left eye - Overall ocular capacity not substantially reduced - Assessment of damages - Amounts payable under Workers� Compensation Ordinance, 1958-1963, for comparable injuries.

The plaintiff by reason of the defendant�s admitted negligence sustained an eye injury occasioning a partial loss of vision in the left eye. The overall ocular capacity was not substantially affected. The plaintiff�s economic future was promising as he had prospects of qualifying in time as a telephone technician which position carried a high salary range; his career was not affected by the eye injury.

Held:

N1>(1)����� Damages should be awarded in the sum of �1,150.

N1>(2)����� The loss of vision sustained was a distinct affront to the integrity of the plaintiff�s body; this alone entitled the plaintiff to an award of damages.

The facts appear from the judgment.

Counsel:

Munro, for the Plaintiff.

Noble, for the Defendant.

SMITHERS J:� The plaintiff is twenty years of age. He is a young man who carries the good opinion of his employer and his teachers. This opinion is not just a passing impression but the result of three years employment and three years teaching. The opinion is that he is industrious, intelligent, keen on his work, and of good character. As a result it is as probable as human affairs may be involving personal behaviour over a long future period that he will retain his employment and qualify in about eight years as an Assistant Telephone Technician. At that stage he will earn a salary in a range between �984 and �1,084. Further promotion would be open to him.

In the meantime he earns �3 per week, but this will be subject to annual rises of 10s. per week during the latter period of the eight years referred to. This period of eight years is the period necessary to carry his general education to Ninth Grade and to complete the five years Assistant Telephone Technicians Course. Up to date he has passed or been accorded a pass on merit for each Grade up to the Fifth, and he is at present studying for Sixth Grade, and his teacher confidently expects him to pass.

In March, 1962, he was unfortunate enough to suffer an injury by reason of the admitted negligence of a servant of the defendant. Flying glass cut the upper part of his face and portion of it cut the cornea of the eye. He was taken to hospital where, after preliminary treatment to his face, an operation was performed upon his eyer to Dr. Loschdorfer. He was blindfolded by bandages for about three days but thereafter his good eye was uncovered, and after three weeks he was discharged from hospital. He has not had and will not have further treatment. Medical opinion is that the eye will not materially deteriorate and that it will not improve by nature and that nothing can be done for it by treatment.

As stabilised there is a small anterior synechia and a coloboma of the iris. Reduced to ordinary English there is a cleft or slit in the cornea stretching from the centre thereof to the outer circumference of the iris, to the location of four o�clock, and a small adhesion between the iris and the cornea at the outer end of the slit or cleft. The result of this injury is that the visual acuity of the left eye has been seriously diminished. Capacity for distant vision, fifty yards or more, is reduced to 20 per cent of normal. For nearer vision the diminution is said by the optometrist to be 50 per cent. Although described as 50 per cent it is clear that for practical purposes the disability is much more than 50 per cent because there is a complete inability to read print with this eye other than large print, and to read ordinary newspaper print is out of the question. It is 50 per cent only in the sense that the chart used by the optometrist for testing purposes has the print which he can read in approximately the centre of the various sizes of print. The smallest print he can read is larger than that used for newspaper or ordinary business printing. For ordinary reading the eye is therefore useless.

With his right eye he can see and read normally. The result is that at present by using his right eye and such vision as the left has, he has ocular capacity not substantially reduced. For practical purposes the work of seeing will all be done with the right eye, as the images created by the left will be indistinct as compared with those of the right and rejected or ignored by the brain. Only in a peripheral area of sight to which the vision of the right eye does not extend will the left eye really do any useful work.

Disabilities suffered while the plaintiff still has a good right eye are that he is more prone than a person with two good eyes to minor and perhaps major mishap to his head and face, including also his left eye, particularly when working in cramped spaces. His work requires him to work in cramped spaces and to ramble around in confined places such as the area between ceilings and roofs. In addition, there are times when he has to use his two eyes simultaneously to view dual parts of equipment, not both of which are in the vision of each of his eyes. Again much of his work is fine work and requires much visual concentration. On the evidence I think he will have to develop a constant consciousness of danger on the left side. This will apply in his work, and indeed wherever he is, and particularly in traffic as a pedestrian, and should he drive motor vehicles, then as a driver.

In addition, the life of the plaintiff will suffer certain restrictions due to the necessity for care to avoid injury to his remaining good eye. Thus, although he is a footballer, he has given up playing and may well be expected to refrain from further participation in that game. Also it would be risky for him to engage in other games where, from a flying ball or a kick or a blow, the right eye would be open to accidental injury.

Should the right eye suffer an injury causing loss of sight, the position of the plaintiff would be grave indeed. He certainly could not hold his present employment. Although he could get about and read large print, his career would be ruined and he would be hard put to earn a living. The loss of vision in his left eye would then be a major disabling injury and the plaintiff�s loss because of it would be very great. It is of course partly as a reserve to meet the possibility of loss of sight in one eye that Nature has blessed the human being with two. It must never be forgotten that each eye is a precious possession - precious because of its capacity, and as one of man�s links with the outside world, an essential part of a man�s body. Some hint of its value may be gained by the revulsion that any man feels at the thought of losing the sight of one of his eyes.

Considerations such as the above indicate that it is far from a complete answer for the defendant to say that as one eye remains good there is no present loss. The present loss is that the plaintiff is without something of great value and to which he is entitled, namely the capacity to see out of his left eye to the extent of its natural power. In my opinion, the injury he has suffered is a distinct affront to the integrity of his body. He will suffer the resulting disability for all his life, perhaps for forty or fifty years.

The plaintiff is entitled to receive compensation for the risk of the increase in the disabling effect of his injury should anything seriously affect the sight of the right eye. As indicated in such an eventuality the incapacity to see well out of the left eye would then assume the character of a major catastrophe. What the chances are of the left eye being required to undertake the burden of all the seeing required to be performed by the plaintiff is difficult to say. They are not high but they are far from negligible and they have some forty to fifty years and all the vicissitudes of the plaintiff�s life in which to eventuate. Like a jury I must do my best to assess a reasonable sum which though far below and bearing no relation to fair compensation should the risk eventuate, is reasonable as compensation for the risk.

I must remember that the bulk of mankind go to the grave with two eyes, both efficient to see with. On the other hand, many people suffer the loss of an eye by accident or by disease from external or internal causes. In addition, a man who has for practical purposes one good eye suffers continual anxiety in the apprehension of injury to the other and must make constant conscious efforts to avoid injury to it.

Should the plaintiff�s plans not eventuate and should he be forced to seek some other mode of employment, and should he suffer no injury to his good eye, it is not apparent that he would suffer any major difficulty in obtaining some sort of employment. If he suffers some injury to the right eye, however, there would be great difficulty. I do not forget that if injury is received to the right eye it may quite possibly be itself compensible.

To my mind the major considerations in the assessment of a fair and reasonable sum to award the plaintiff are:

N2>(a)����� The mere loss of efficiency of a precious organ resulting from physical damage to it.

N2>(b)����� The risk of such loss of efficiency acquiring a disabling character should the plaintiff�s right eye be injured.

N2>(c)����� Anxiety, inconvenience and restriction of life resulting from both of these.

Doing the best I can I award the plaintiff �1,150.

It is of interest to observe that for Workers� Compensation purposes compensation for the loss of 75 per cent of vision of one eye is assessed, merely from an industrial point of view in respect of a man in receipt of �668 per annum, at �900. The plaintiff probably will hereafter earn a wage well in excess of �668. He will still suffer his disability and if he suffered it then instead of now the legislature would apparently consider �900 not excessive in respect of the industrial aspects of his disability alone. This is not of course binding upon me in this jurisdiction. All sorts of considerations might have been in the mind of the legislature.

I have considered the cases referred to by Mr Munro and the submissions by Mr Noble, for both of which I am grateful. I keep in mind that a perfect compensation is not possible and should not be attempted, that all life is subject to hazards which may result in unexpected disasters, that compensation is to be awarded now once and for all, but that nevertheless there must be a full compensation in the sense that the award must represent a reasonable estimate of future money losses, and a reasonable recompense for past and future pain, anxiety, inconvenience, restrictions on life and loss of efficiency of the body. See Pamment v. Pawelski[cx]¹.

I am of opinion therefore that damages should be awarded in the sum of �1,150.

Solicitor for the Plaintiff: W. A. Lalor, Public Solicitor.

Solicitor for the Defendant: R. G. Noble, Port Moresby.

[cx][1949] HCA 43; 79 C.L.R. 406.