McCarthy v Public Curator of Papua and New Guinea [1964] PGSC 22; [1964] PNGLR 134 (4 November 1964)

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NEGLIGENCE - General damages - Amenities - Future economic loss - Plaintiff�s way of life as villager.

In assessing general damages regard must be had to pain and suffering, future economic loss, inability to enjoy the usual amenities of life and cosmetic disability. The Court has regard to her station in life, the requirements of her way of life in comparison with a European way of life and to the attendant additional requirements of that way of life. Regard must be had to the customs and habits of the people of which the plaintiff is a member. These aspects will vary from place to place and will vary as time goes on.

In his action a Papuan girl, Kino Helai, aged fourteen years, by the Director of Native Affairs and pursuant to the Native Suitors Ordinance 1933, sued one Corlett for damages for personal injuries following an accident in Port Moresby some seven years earlier. Corlett was the owner of a public �bus operating in Port Moresby. While the �bus was in motion Kino Helai fell from it in such a way as to injure her right leg. The injuries consisted of the removal by abrasion of skin from the whole of the front of the leg and the dorsum of the foot. The defence was a denial of negligence. The Court found that the driver of the �bus, a servant of the defendant, was guilty of negligence and that the damages claimed resulted from this negligence. During the action the defendant died and the action thereafter was defended by the Public Curator as representative of his estate.

The evidence disclosed that Kino Helai was a native of Tatana Village near Port Moresby. The facts sufficiently appear in the reasons for judgment which are reported solely on the question of assessment of damages.

CAMERON SMITH AJ:� (After dealing with the question of liability and finding for the plaintiff on that question His Honour continued:)

The Plaintiff was in good health prior to the accident. It seems clear that she was a bright and happy child, who enjoyed the company of other children in the village and joined in the usual children�s games. She is an attractive girl who has the appearance of being well-nourished, generally healthy and self-controlled for her present age. If anything she looks older than her years. The Doctor considered her to be timid and reticent. I do not, at this stage, agree with that opinion. I had close regard to her all the time she was in Court, and whilst I agree that she was somewhat timid and concerned at the commencement of the proceedings, she showed quite considerable self-composure behind her Counsel, and even whilst in the witness-box showed clearly on the odd occasion that she knew very well what was going on, had a quiet sense of humour and is certainly not without brains. She is quite a young miss, and spirited, as is indicated by her behaviour in hospital. She was nicely dressed, and is just not a simple village girl. Her mother is not quite so simple as may first appear, but showed herself to be able to look after herself under cross-examination. I do not think these two should be underestimated.

This Court, I interpolate, cannot by law be swayed by sympathy, no matter how sorry everyone is that the Plaintiff should have suffered the way in which she has, but she has undoubtedly had a very bad time, and has spent almost a year in hospital over the last seven years.

She has a nasty-looking leg, somewhat added to by the fact that there is some wasting of the calf muscle through want of exercise and use. She saves her right leg when walking, because she has a limited movement of the right foot, and also because she says it pains almost continually under the heel, behind the heel and upon the dorsum of the foot, particularly near the fourth and small toes. There is no physical reason for this now. It stems really from her fear that it does hurt and will hurt if used beyond certain limits. This is a reality as far as she is concerned.

It is a basic principle touching the award of damages, that a Plaintiff must act reasonably in order to mitigate damages and to carry out and co-operate with acceptable medical advice. This young girl disobeyed doctors and nurses in hospital in the early days, thereby extending the healing time and resulting on occasions in further medical attention. I realise and give the benefit to the Plaintiff that she was then six or seven years of age, and that she came from a village some twelve miles from Port Moresby. I realise that there was the language problem and the extraordinary fact that the doctors and nurses apparently did not use interpreters in the early days of this Plaintiff�s hospitalisation. The postion, I am informed, had fortunately been rectified.

I think many such persons as the Plaintiff cannot stand any form of pain, mild or otherwise, and that they lack the will to persevere and put up with some pain which in the end will disappear and will be of ultimate benefit to them. I make full allowance for these aspects of the case, and also that the conditions in which the Plaintiff lives are not always as hygienic as one would like. The conditions of this village probably brought on the ulcers in 1959.

The civil onus of proof lies upon the Plaintiff to satisfy the Court not only that she has incurred the pecuniary and nonpecuniary damage she claims, but also that each item of damage claimed was caused by the negligence of the Defendant (Mogul Steamship Co. v. McGregor[ci]¹).

Damages are an award in terms of money which, so far as money can, will give to the Plaintiff full reparation for the damage, loss and injury suffered and sustained by the Plaintiff at the hands of the Defendant.

In order to ascertain what is the proper award to be made in all the circumstances of this case, regard must be had to the following heads of damage:

N2>(2)�� Pain and suffering and general inconvenience past, present and future.

N2>(4)�� The Plaintiff�s inability to enjoy the usual amenities of life, past, present and future.

Impinging upon some of these matters are such aspects of her life as her ability to attend school, her future prospects of marriage, and all those matters relating to the way of life and the standards of the ordinary person in the Plaintiff�s village. I have had regard to her station in her village life and to the requirements of her way of life in comparison to a European way of life and the latter�s attendant additional requirements. This bears on the relative value of money. I think one must relate each case to the realities of life and the customs and habits of the people. These aspects vary from place to place now and will vary as time goes on in this Territory, just as it has in other parts of the world.

As I see the evidence, the case for the Plaintiff is to be divided into three major periods of time.

The first period commences on the date of the accident and terminates a few months after her discharge from hospital. This allows for convalescence and rehabilitation.

The second period commences at some indefinable time before the 10th June, 1959 and ends a few weeks after the 22nd June, 1959.

The third period of time commences about the 18th September, 1962 and runs until the present time. Now is the time for the Plaintiff to review her position and her outlook on her future - both as to her behaviour, co-operation and perseverance, and her view as to whether she wants to get well or not.

Turn then to the date of the accident. She suffered a severe laceration down her right leg along the fibula line with quite a flap of skin. All the skin was torn from the dorsum of the foot involving the tendons and muscles. The wounds were dirty with grass and gravel. Fortunately no bones were broken. Some injury, too, was occasioned to the back of the ankle and this was to play an important part in the Plaintiff�s future. She was in considerable pain for some hours. She was given the usual drugs and medications for an operation. Skin-grafting on quite a scale was carried out and the grafted skin was taken from the usual part of the anatomy. This in itself is quite a painful area until healed. The laceration was sutured, but this broke down. She was given dressings frequently, and skin was sloughing off here and there and at the back of the ankle over the tendon Achilles. By the end of July the skin-grafting seemed to be successful. She had had a number of skin grafts.

The medical and hospital records then became practically non-existent, and it is not really until 1962 that her history becomes clear. However, it does appear she was discharged fit to go home in December, 1957. She became an out-patient for a while and she was required to carry on with convalescence, to do exercises and to keep the foot clean. Of course she was not wearing shoes. There is little doubt but that in this period of time the little girl had a harrowing experience, but she was a somewhat recalcitrant patient.

By all accounts she should not have had any real residual physical disability. Cosmetically she would still have a disability which could cause embarrassment. I think it would be fair and reasonable to the Plaintiff and the Defendant if this first period of time is estimated at ten to twelve months.

The evidence then closes until June, 1959, when it appears that her leg became severely ulcerated and required medical and hospital attention. This is the second important period of time. No doubt these ulcers took some week to get to the stage they did reach, as they were chronic. Medical advice was given for an operation to be performed and the Plaintiff was prepared by the nurses. However, the parents would not consent to any operation, and she was discharged from hospital on the 22nd June, 1959.

Upon the evidence it seems probable that had she had this operation she would have recovered completely (other than cosmetically), and the area over the tendon Achilles would have been cleared up and no shortening of the tendon would have occurred, and with care and attention the dorsum of the foot would have regained resilience. Exercises were required to bring back the tone to the muscles and tendons. Mechanically there was really nothing wrong with her foot and ankle.

Was the refusal to have an operation reasonable, having regard to the standard of the ordinary prudent person coming from the village of the Plaintiff? There is a duty on the Plaintiff to be reasonable and to mitigate her damages within reason. She also bears the onus of proof to satisfy the Court on the balance of probabilities that the refusal was reasonable, having regard to all the circumstances. Her father did not give evidence, and I know of no reason why he did not. Her mother gave evidence but did not give any reason why medical advice was rejected. I have given weight to the absence of interpreters at the hospital, but there were Papuan nurses at the hospital. The language problem has been submitted by her Counsel as the reason for the refusal. I am not satisfied upon the evidence that this was so. Was the child frightened? Had she had enough of the operating theatre and surgeons and their knives? I do not know. The mother had even stayed at the hospital. The Plaintiff�s foot and leg had been previously treated by the doctors and nurses, and she had made a remarkable recovery, and apparently there was nothing medically wrong with her leg or ankle or foot between December, 1957, and May or June, 1959.

Upon this paucity of evidence how can this Court find the refusal reasonable? In any event I am not so sure that even finding for the Plaintiff on these matters (or should it be said, overlooking these matters?) that the Court could find on the balance of probabilities that the refusal was reasonable, having regard to all the circumstances of the case, the developing roads and the movement of transport, expanding general knowledge, and so on. After all, Tatana is not so far from Port Moresby, and buses and trucks travel to and fro each day, and young men and girls attend for work in the shops. All kinds of medical attendances have been given to this extended area over many years now.

It must not be overlooked that the Defendant has certain rights, too, amongst his liabilities. His burden is limited by law. The Plaintiff has a duty to try harder than what she has, and I say so advisedly. It is not fair on a Defendant for a Plaintiff to sit back and not make every reasonable endeavour to improve her condition. The doctors considered these disabilities as being really of a minor nature. A Plaintiff cannot sit back and expect to get large sums of money, and in my view such an attitude is neither to be countenanced nor to be encouraged.

The Plaintiff still has youth on her side, and if I may say so, a very good legal adviser. She can still have the operation if her natural growth is not sufficient to permit further upward movement of her foot aided by proper and persistent exercise and physiotherapy.

I am allowing in my award of damages a small but reasonable and fair amount for her to enable her to travel to Port Moresby and learn how she should treat her foot. I am also allowing for future pain and inconvenience for what would seem to be a future simple operation to the tendon Achilles.

There is no real reason why she sould not go back to school, that is if she wants to, and I emphasise this aspect of her life.

Her prospecs of marriage seem to me to be limited only by the look of her leg. Even in her present condition, her mother in cross-examination thought that not only will she marry, but also that she should command much more than �100. She will most probably marry when she is about eighteen or nineteen years of age, and in these days the husbands do much more about the house and gardens than their fathers did. This change is not confined to the Territory, I venture to suggest.

Having regard then to the main headings of damages, the evidence as I find it and the law as I understand it, I include in my award for damages a sum in respect of the out-of-pockets for the first period and the present and immediate future. I think it is fair to give the Plaintiff the chance now that she had in June, 1959 so far as physio-therapy is concerned and a possible operation.

I allow for pain and suffering and inconvenience for the first period and for two or three months in and around June, 1959 and this future last chance period.

I also take into consideration the denial to her of the enjoyment of the usual amenities of life for the first period and the period around June, 1959. It is quite clear that she was unable to enjoy herself with her companions for a long time.

I also award to her a proper sum for her cosmetic disability through the past, the present and the future periods of time - this disability that is permanent and which also bears on her prospects of marriage.

I make no award for economic loss, as I do not think the Defendant should meet any such loss, if any. Eventually with her present disability she will be able to do work in and around Port Moresby which does not entail standing for long periods of time. It is not uncommon - I would not say often, for one to see persons with worse disabilities doing relatively important jobs for young girls. One must not forget the doctor�s evidence, nor leave behind one�s common sense and knowledge of the world.

The awarding of a proper sum of money in this case is not an easy one and has called for every considerable thought. It is most complex when one has regard to the many and various features of the circumstances surrounding a girl such as this suffering such an injury and when one has regard to the past, present and future conditions of this Territory. One must have regard to the domestic, social and economic changes which have existed, are at present existing, and how they are visibly changing. These difficulties are not assisted by the long passage of time from the date of the injury until now, nor by the paucity of medical and hospital evidence.

No sum of money can be awarded to the Plaintiff by way of punishing the Defendant for the negligent manner in which his �bus was driven. That is not a matter for a civil Court.

Now is the time to assess the damages to be awarded to the Plaintiff for all time because neither she nor the Defendant can ask for the case to be re-opened in the future. The award must be fair, reasonable and proper, both to the Plaintiff and the Defendant.

Bearing all these matters in mind, I consider that a fair and proper award to the Plaintiff is the sum of �530 0s. 0d.

This award I direct to be paid to the Registrar of this Court, and of this amount I direct him to set aside the sum of �30 and to pay this sum into a Savings Bank Trust Account to enable the Plaintiff to draw against it through the Registrar in amounts not exceeding �5 in any one month. This will enable her to recoup to her parents the sum of �3 10s. 0d. and will also assist her to attend in Port Moresby for directions as to how properly to attend to her disabilities.

The Registrar is directed to invest the balance, namely, �500 in proper trustee investments approved of by a Judge of this Court. This capital sum and the interest thereon is to be paid to the Plaintiff upon her attaining the age of twenty-one years.

The Plaintiff is to have the costs of this action. Costs to be assessed or in the absence of agreement to be taxed.

[ci] (1885) A.C. 25.

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Supreme Court of Papua New Guinea

McCarthy v Public Curator of Papua and New Guinea [1964] PGSC 22; [1964] PNGLR 134 (4 November 1964)

Papua New Guinea Law Reports - 1964