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Mulholland v Westley [1964] PGSC 24; [1964] PNGLR 30 (14 November 1963)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 30 - Mulholland v Westley

[1964] PNGLR 30

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MULHOLLAND

V

WESTLEY

Port Moresby

Mann CJ

14 November 1963

DAMAGES - Personal injuries - Quantum.

The plaintiff, aged 21 years, was injured in a motor collision due to the defendant�s negligence. He suffered a large laceration just below the left kneecap and several lacerations to the face. His right eye was disfigured by scar tissue which pulled the eyelid out of its correct alignment. Other facial lacerations also left permanent scars. He wished to undergo surgery in order to minimise the discomfort and inconvenience of the scars as well as to improve their appearance. It was uncertain whether surgery would effect a substantial improvement. His pain and suffering was quite severe and he had the worry of frequent headaches, diminishing in severity, but continuing over a period of some months.

Held:

That general damages should be assessed at �600.

Action:

This was an action in which Donald Ralph Mulholland sued Donald Westley for damages for negligence. The defendant admitted negligence and paid into Court the sum of �300 saying that this was sufficient to satisfy the plaintiff�s claim. The action proceeded to trial on the issue of quantum. Facts relevant to that issue are set out in the judgment.

Counsel:

Kilduff, for the Plaintiff.

Kirke, for the Defendant.

MANN CJ:� This is a claim arising out of a motor collision which occurred on the 14th December, 1962. The Plaintiff�s claim is for damages for personal injuries. The Defendant admits liability, and the only issue for me to decide is the question of quantum of damage. The Defendant has paid into Court the sum of �300 and relies upon that as sufficient compensation to satisfy the Plaintiff�s claim.

The Plaintiff was a passenger in a motor vehicle travelling on the Hubert Murray Highway when the Defendant�s car collided head-on with the car in which the Plaintiff was travelling. The Plaintiff was sitting in the front seat, turned slightly to the side, and was looking out across the harbour up to the instant when the collision occurred. He was thrown under the dashboard of the car but he lost consciousness and was unable to describe his position precisely.

He suffered a large laceration just below the left kneecap and several lacerations to the face. Evidently a tooth penetrate his upper lip and cut it right through, and his right eye is disfigured by scar tissue in the region which has pulled the eyelid out of its correct alignment. It appears probable that the side of the Plaintiff�s head came violently into contact with some part of the car in the region of the dashboard, but X-ray photographs and medical examinations failed to disclose any fractures.

(His Honour then referred to several heads of damage alleged by the Plaintiff and found that the evidence did not substantiate these allegations. His Honour then continued:)

There remains the assessment of compensation for pain and suffering, inconvenience and restriction of movement during the short period when the Plaintiff�s condition prevented him from moving about freely. There are also the permanent disfiguring scars to the face. The Plaintiff is sensitive about these scars, and has adopted mannerisms to conceal them, which really draw attention to their presence. He wants to have, and undoubtedly should have, surgery performed to minimise the discomfort and inconvenience of the scars as well as to improve their appearance.

The evidence called on the part of the Defendant rather tended to minimise the question of scars, and suggested that in the Territory the necessary operation might be performed at trivial cost. The Plaintiff is indeed fortunate in the medical skills and services which are available, and he should be able to have the scars attended to readily enough. It is not clear that a single operation will prove to be sufficient, and it may be that the cosmetic surgery involved will require treatment over some little time. It is by no means certain that surgery will bring about a substantial improvement.

I must allow a reasonable amount for the disfigurement, which in some degree is likely to be permanent, as well as the probable cost of one or two operations to reduce the scars. The Plaintiff�s pain and suffering were evidently quite severe and he did have the worry of frequent headaches, diminishing in severity, but continuing over a period of some months. This and the temporary state of amnesia experienced by the Plaintiff indicates concussion with probable cerebral irritation or minor damage.

In these circumstances the Plaintiff has, in my view, failed to establish his substantial case, but has established that his sufferings were real, and that his facial injuries have left permanent scars. The extent to which this disfigurement may be reduced by operation is uncertain.

I was at first inclined to think that the sum of �300 paid into Court would be sufficient to cover the Plaintiff�s loss, but on further reflection, my impression is that this figure is too low. It is not a case for substantial damages, but to allow the Plaintiff a reasonable margin to cover his probable future sufferings, I think that an award of �600 plus special damages would be appropriate.

Special damages include �10 14s. 0d. for Hospital charges and �3 5s. 0d. for physiotherapy. In addition there is some reasonable allowance to be made to cover taxi fares to the Hospital. I propose therefore to fix the special damages as a lump sum at �18.

There will be judgment for �618, with costs to be taxed.

I direct that the money paid into Court be paid out to the Plaintiff or his Solicitor.

Judgment and Direction accordingly.

Solicitor for the plaintiff: Stan Cory and C. F. Kilduff.

Solicitor for the defendant: Craig Kirke and Co.