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Bomai v The State [1979] PGSC 7; [1979] PNGLR 125 (4 May 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 125 - Kongo Bomai v The State�

[1979] PNGLR 125

SC152

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KONGO BOMAI

V

THE STATE

Waigani

Prentice CJ Raine DCJ Andrew J

30 April 1979

4 May 1979

APPEAL - Damages - Inadequate damages - Personal injuries - Principles on which appeal court will interfere - Wholly erroneous estimate - Value of use of comparable verdicts obtained by way of settlement discussed.

DAMAGES - Personal injuries - Particular awards - Fractured femur - Facial abrasions - Some concussion - Continuing pain with climbing - Inability to kick ball or participate in sport - Mountain village schoolboy aged twelve (sixteen at trial) - Assessment (before apportionment) of K1,100 substituted for K300.

The appellant, a national schoolboy from a mountain village, aged twelve (sixteen at trial) was awarded general damages of K240 (assessed at K300 but reduced for contributory negligence) by the National Court, for personal injuries arising out of a motor vehicle accident. The principal injury was a fractured femur which was treated in the usual way with traction and insertion of a Steinman pin; in addition the appellant was rendered unconscious for a short period and suffered facial abrasions. At the time of the trial, the appellant complained of pain and discomfort with climbing and inability to run or kick a ball.

The appellant appealed against the adequacy of the damages awarded.

Held

N1>(1)����� On appeal against an award of damages for personal injuries on the sole ground that it is inadequate, before the appellate court can properly intervene, it must be satisfied that the assessment of damages awarded is a wholly erroneous estimate.

Davies v. Powell Duffryn Associated Collieries Ltd., [1942] A.C. 601; and

Government of Papua New Guinea v. McCleary, [1976] P.N.G.L.R. 321, referred to.

N1>(2)����� In assessing damages for personal injuries, comparable verdicts obtained by way of settlement (in cases concerning infant plaintiffs), should be used with great caution.

N1>(3)����� In the circumstances, the assessment of damages was so wholly erroneous an estimate as to require alteration on appeal.

N1>(4)����� (Per Prentice C.J. and Raine Dep. C.J.) In the circumstances general damages should be assessed at K1,100.

Appeal

This was an appeal against an award of damages made by the National Court, for personal injuries suffered in a motor vehicle accident; the main ground of appeal was that the assessment of damages made was inadequate.

Counsel

D. J. McDermott, for the appellant.

B. O. Emos and G. M. H. Delaney, for the respondent.

Cur. adv. vult.

4 May 1979

PRENTICE CJ: The appellant herein complains of the inadequacy of a verdict in his favour for the amount of K240 in a claim for personal injuries suffered when a motor vehicle ran him down in the vicinity of Kerowagi in 1974. He was some twelve years of age when the accident happened and at trial in August 1978, was some sixteen years old. The injuries for which he was treated were flesh wounds to the face and a fracture of the femur.

This court was referred to many of the cases stemming from Flint v. Lovell[cxvi]¹. It was submitted that the damages awarded were a �wholly erroneous estimate� within the meaning, as subsequently canvassed, of Davies v. Powell Duffryn Associated Collieries Ltd.[cxvii]².

At the trial, and in this court, it was urged that recourse should be had in coming to an assessment, to certain figures and particulars kept in the Public Solicitor�s office as to settlements affected in personal injury cases. This was desirable, it was said, because of the dearth of reported cases in the National and in the pre-Independence Supreme Courts, involving nationals of P.N.G. A schedule of matters in which infant settlements were effected and approvals obtained in court, was sought to be tendered for the assistance of the Supreme Court. For the reasons suggested during argument by my brother the Deputy Chief Justice, I do not find such an approach allowable or appropriate. The question involved in whether an infant�s settlement should be approved is whether the figure agreed upon is inadequate � not whether it is possibly inordinate. I note that there appears to be a tendency in some cases in the United Kingdom to allow decisions in other cases to be referred to in the compilation of damages. There may be more cases when such resort might properly be had in P.N.G., but in my experience the quality of preparation and presentation of cases and the amount of cogent evidence available varies tremendously from case to case, as does at times the degree of effectiveness of advocacy. Use of the verdicts in other cases could, in my opinion, be of very limited use � and in some cases only. No doubt practitioners have to build up for their own purposes a �range� of damages within which to strive for a settlement or verdict. If the courts are to do so in a suitable case, I apprehend that they must do so by reference to decided cases. Any tendency to put the court to an attempt to compare an instant set of facts with the multiple variations of facts in other cases is I consider, to be deprecated.

Unfortunately, the hospital records relating to the appellant�s injury have been mislaid. But it was established that his injuries to the face were flesh wounds only, which healed satisfactorily with no noticeable scars, and the injury to his leg involved a simple fracture of the right femur. A doctor was called who had examined the plaintiff and some x-rays of him prior to the trial; and he gave evidence as to usual medical procedures and probabilities obtaining in the witness� period of service at Kundiawa, from which his Honour was able to make inferences that the limb would have been joined with a Steinman pin and subjected to traction for six to eight weeks. It was also deduced that the normal period of hospitalisation would have been three to four months and that a further three to four months would have been required for complete recovery. The doctor conjectured that without appropriate drugs the plaintiff�s pain would have been severe for two weeks, with their use � less severe, it seems. Traction would have caused discomfort. Use of the leg would have been restricted at first � with use of a stick necessary for three to four weeks. The doctor said the plaintiff�s right leg is now as good as his left.

The plaintiff did not give this picture. He stated that even then he could not use his right leg to the extent he could his left. That when he came down a mountain, �it starts paining again�. On flat ground both legs are all right but on a mountain the right leg is not. Where he lives, he has to walk on mountains. His house is on a mountain and it�s hard to come down and go up. He has pain in the village when walking on a hill, but not on the flat. He never runs, but walks. He had been told by a doctor not to run and or kick a ball. He had never apparently tried to run. The leg does not feel as strong as the left one.

Now his Honour stated that he rejected this evidence of the plaintiff, expressedly on the basis of the doctor�s evidence. With respect, I consider his Honour fell into error in doing so. The plaintiff�s evidence in that regard went unchallenged. It does not seem to have been made the subject of even one question. That being so, I do not consider the court was entitled to reject his evidence � not on a question of credibility � but on what, with all due respect to the doctor, � appears to have been a somewhat unsympathetic medical view � based on clinical observations. In a great number of cases tribunals are faced with accounts of pain which cannot be explained by examining doctors, yet nevertheless have to be accepted (after assessment of consistency and credibility) as demonstrating real pain, both by those doctors and the tribunals.

It is my conclusion that the evidence was such as clearly to establish on a balance of probabilities that at the date of trial the appellant was still suffering some disability from his leg. Inability to move with confidence and take part actively in sports such as football which appears to play such a large part in the life of youthful Niuginians, must be regarded as very invasive of a youth�s enjoyment of school life. Inability to climb and descend mountains without pain must detract quite significantly from the amenities of life available to a youthful Chimbu villager. Unfortunately, the question of how long such a disability might have continued after the trial was not canvassed in evidence. I consider that the plaintiff should have been compensated for the pain and suffering that he encountered during hospitalisation, recovery, and since; and for the considerable interference to his enjoyment of the amenities of life up to the trial. It would I think be mere speculation to find that his loss of amenities would continue thereafter for any particular extent; but in so far as it had continued from 1974 to 1978 � it would be reasonable to infer that it would continue at least for some time.

I found myself initially of the view that even without the matter of pain and discomfort experienced in negotiating hills, the assessment of damages was so significantly low within the established principles, as to require alteration by this court. When that matter is added, my opinion becomes reinforced.

I would allow the appeal and substitute an assessment of damages at K1,100 which, reduced by one fifth for contributing negligence as his Honour found to be necessary, would call for a verdict for the plaintiff of K878 plus costs.

RAINE DCJ: This appeal concerns a small award of damages to a national lad aged about twelve years for personal injuries received in an accident. The learned trial judge felt the boy was partially to blame, and reduced the damages by twenty per cent. No complaint is made by the appellant plaintiff as to this, he only complains about the amount of the verdict. He submits that it is demonstrably low. The boy was not a mere villager, he was at school. He comes from a rich province. He is now about sixteen.

The trial judge thought K300 was a proper sum, and thus entered a verdict and judgment for K240 in favour of the plaintiff.

It is not one of those cases where the appellate court is inhibited in its approach by reason of the fact that the trial judge had the inestimable advantage of seeing and hearing the parties and the witnesses, and assessing the general climate of the trial. Here the plaintiff was barely cross-examined. It was not a case where credit was really in issue. Leaving aside the question of liability, there was really little contest except on the facts relating to damages. And the evidence was short, and his Honour appears to have made a very good note of it, if I might say so.

Fortunately for the plaintiff he suffered far less than he might. I will enumerate his injuries, and what flowed from them, with some comments. They are:

N1>1.������ He was knocked unconscious. He must have been fairly deeply unconscious, for he woke up in hospital, and when he did so he found his parents at his side. One assumes it must have taken some time to summon them. This must have been a rather frightening awakening.

N1>2.������ When struck, the appellant apparently went down on his face. He woke up in hospital to find his face bandaged. He stated: �It hurt me a lot and I cried a lot.� The doctor who gave evidence said that this left no noticeable scars, and no complaint is made of cosmetic loss.

N1>3.������ The major injury was a simple fracture of the upper third of the right femur. Treatment, as is common in my experience, must have been traction of the limb by use of a Steinman pin inserted under anaesthetic through the lower part of the right leg. This treatment was undoubtedly given, but hospital records were lost in a fire, and the treating doctor had either left, or was unavailable. Thus Dr. Martin, who gave evidence for the plaintiff, had to rely on his clinical examination of the lad, and as to things like pain, time of recovery, time in hospital, had to rely on his professional experience. Dr. Martin says that traction would have been applied for six to eight weeks and that it would be normal here for the period of hospitalisation to extend for two to three months. After discharge he thought, physiotherapy being unavailable, that it would take three or four months for the limb to recover full power. I observe that the appellant is from Chimbu, where the inhabitants walk up and down very steep mountains and hills, rather more than along flat expanses. Their strong thighs, calves and chests are no doubt explained by this.

Dr. Martin says there would have been pain for the first two to three weeks, even assuming pain killing drugs were administered.

He says the treatment is uncomfortable, for one is imprisoned in one position. I am familiar with the treatment. It involves full nursing, pans and bottles, which is unpleasant, and embarrassing to some, and other problems are involved. The appellant says he used a stick. The doctor said he would have needed one for three to four weeks, and that he would have been heavily restricted at first in the use of his leg.

N1>4.������ The plaintiff said:

�Whilst I was in hospital leg gave me pain. When I left I could not walk on my leg. I needed a stick and I used a stick. I used it for two months. Then I could walk without a stick and the doctor took the stick back. I walked then without it but with pain. Pain from leg lasted for two months after doctor took stick, and I had to walk very slowly. My leg is all right now. When I come down a mountain it starts paining again. I cannot use it as well as left leg. On the flat ground both legs are all right but on a mountain the right leg is not. In the place where I live I have to walk on mountains. My house is on a mountain and it�s hard to come down and go up. It gives me no pain now sitting in the witness box. It gives me no pain walking about the town. It gives me pain in the village when I am walking on a hill but not on the flat. I never run but always walk. This is because the doctor told me not to run around or kick a ball. I have never tried running at all recently. My right leg does not feel as strong as left. They are equal when I sit down.�

The doctor discounts the alleged after effects. He says that healing is good with the young with an uncomplicated fracture. He found no loss of function and no shortening. He thought the right leg was as good as the left, he went as far as to say �Not possible that walking up and down steep hills would cause him pain � alignment is perfect and any pain complained of would not be due to the fracture.� With great respect to the doctor, what he possibly meant to say was that he could see absolutely nothing that would cause him to expect the appellant to have pain. But the appellant swore he did, and he was not cross-examined on the issue.

Dr. Martin, no doubt an excellent doctor, is not an orthopaedic specialist. He holds the basic degrees only, namely bachelor of both medicine and surgery. His Honour did not accept that the appellant suffered as he swore he did, after the period ended when Dr. Martin thought all should have been well. I can only say, having had extensive experience in orthopaedic cases at the Bar, that the medical profession, with all the goodwill in the world, can be a bit too bland about total recovery. Then, in addition, it was not explored here, there is the very troublesome condition, or state of mind, resulting in what is described as �functional overlay�. Put very shortly, and not very well, when a man suffers a painful injury, sometimes the pain, the pure, physical pain, goes away. There is no reason for it. But the injured man still feels pain. I have heard many very distinguished doctors discuss this. It is a subject about which there is a deal of uncertainty. But in many cases the patients were not hysterical, weak, and self pitying, or psychotic.

I now turn to the merits of the appeal.

Counsel for the appellant has presented us with a carefully compiled list of verdicts obtained by way of settlement in cases here concerning child plaintiffs. I think Mr. McDermott felt, at first, that the fact that the court had approved all these settlements, as it is bound to do, or not to do, gave the verdict some sort of �imprimatur�. But, as I tried to point out in argument, this is simply not the case. All we are concerned with is to see that the infant is not sold short. If, as is often the case, we feel the defendant insurer has been generous, then naturally we approve the settlement. In no way are we saying, by giving that approval, that the verdict is one we would have awarded. All we are saying is that the verdict is sufficient, and warrants approval.

I do not gain any real assistance from the figures, although they are a credit to those who prepared them. But they relate to settlements only. And they are necessarily laconic. All cases are different. I put them aside.

Mr. McDermott bombarded us with a number of high authorities on the role to be played by an appellate court in a case such as this. Really, with great respect, this was wasted on me, in a tiny case such as this. There are only three things we have to choose from. Was the trial judge seriously wrong, to the extent that we can say he was quite erroneous in his assessment? Or did his Honour award damages within a permissible range? Or was his Honour �on the low side�, but not to the extent that permits us to interfere?

I believe that the learned trial judge was �on the low side�, and to such an extent that we should interfere. I see no apparent error of principle, but the result achieved leads me to believe that error there was.

I am of opinion that the appeal should be allowed and I would fix the sum of K1,100 as being a proper measure of damage. This results in judgment for the appellant in the sum of K878. The respondents must pay the costs of the trial and the appeal. I would order that the sum of K878 be paid into court as provided in the original order �qua� the sum of K240, and that additional to that order be added the words, as to the attainment of the age of twenty-one years, �which date shall be deemed to occur on the 30th November, 1983.�

I would only add that counsel need not, and should not, regard this as �a test case�. I certainly do not so regard it. Occasionally a superior court will, as it were, take a couple of steps upwards �qua� damages. Then it will be seen that a new approach, or attitude, is adopted, that the court has seen that inflation, and so on, has rendered the former level of awards, if persisted in, inequitable. This is not such a case.

ANDREW J: The appellant sued the respondent for damages arising from a motor vehicle accident. On the 26th September, 1978, he was awarded damages totalling K300 which was reduced by one fifth due to a finding of contributory negligence. The award was thus K240.

The appellant now challenges this award as being inadequate and unreasonable.

On appeal against an award of damages for personal injuries on the ground that it is inadequate or excessive, before the appellate court can properly intervene, it must be satisfied, either that the trial judge in assessing the damages, applied a wrong principle of law, or that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. See The Government of Papua New Guinea v. McCleary[cxviii]³.

At the time of the accident, namely the 30th November, 1974, the appellant was aged about twelve years. He was a school boy attending Kerowagi High School. He was walking on the old Highlands Highway near Rover Village in the Kerowagi Sub-District when he was struck by a police vehicle driven by the second respondent and knocked to the ground thereby sustaining a fracture of the upper third of his right femur and some flesh wounds to his face. He was admitted to the Kundiawa Hospital.

The task of the learned trial judge in assessing damages was made more difficult by the fact that the Kundiawa Hospital records had been destroyed in a fire. The appellant thought that he had remained in hospital for some six months. One Dr. Pilli Sanjeevarao Martin, who had not treated the appellant, gave evidence based on recent x-rays and recent examinations. He said that the normal period in hospital would have been three to four months and that full power of the limb would have been restored and complete recovery effected three to four months after discharge. These estimates of time were accepted.

It appears from the reasons for judgment of the learned trial judge that he had regard to three heads of damage when arriving at his assessment of damages. The first was for pain and suffering. The second for loss of amenities and the third for �an element of violation of the integrity of the plaintiff�s body�. An �in globo� sum was awarded in respect of these items.

The findings of the trial judge were challenged, inter alia, in that he failed to give any or any sufficient weight to the evidence of the appellant and his witnesses covering the injuries.

The appellant described how he was knocked unconscious and woke up in hospital. His face was �crushed� and he suffered considerable pain. His leg was wired and later he was able to walk with the aid of a stick for two months before recovering to the extent of being able to walk unaided but still experiencing pain. He said his leg was all right now but not as good as the left leg. He lives in a mountainous area and he suffers pain when walking up or down but there is no pain when walking on the flat. He was told by the doctor not to run around or kick a ball and he still does not run. Dr. Pilli Sanjeevarao Martin, who I have already mentioned, did not treat the appellant but examined him before the trial, gave the following evidence:

�He has no disability. No loss of function of leg in movement � no shortening � fracture had healed well. No loss of strength. Right leg is good as left in this respect. Not possible that walking up and down steep hills would cause him pain � alignment is perfect and any pain complained of would not be due to fracture. No problems as to arthritis or other, because bones in complete alignment and he was young which meant a complete heal. As good as before he had accident.�

The trial judge accepted this evidence and rejected the appellant�s evidence that he still had some pain walking up and down slopes. I have reservations about this finding. Firstly, there was no cross-examination of the appellant suggesting that he had no residual disability. Secondly as Dr. Martin had only examined the appellant shortly before the trial, I think, with respect, that the most he could have said was that the injury should not have caused any residual disability and not that �it was not possible that walking up and down steep hills would cause him pain�. The appellant�s evidence was accepted in other respects. I do not think that this is one of those cases where the appeal court is greatly disadvantaged having not seen and heard the witnesses. The appellant�s evidence does not appear to me to be exaggerated nor unreasonable. I think that in the absence of cross-examination suggesting that he did not suffer pain when walking up and down hills, that his evidence should have been accepted. In my view there was insufficient weight given to the appellant�s evidence as to his injuries and therefore the first ground of appeal is made out.

Counsel for the appellant sought to tender a schedule setting out damages in comparable cases. These were however matters which have been the result of settlement. I agree with the trial judge�s finding that these awards, not being based to any significant extent on court awards in this country, of which there appears to be an acute dearth, would be of only slight value as guidance. However, due to this acute dearth I would accept the tender as being some evidence of a range of awards and as some evidence of the community attitude to an appropriate award. In Waldon v. The War Office[cxix]⁴�the injuries sustained were not of a common kind, there had been decisions on it, and the consideration of these might, in the particular circumstances, have been of assistance to the judge. I would stress however that damages in settled matters should be approached with caution.

Even apart from my finding that there should have been some weight given to the appellant�s evidence of continuing pain, I consider that the award of damages was so inordinately low that it was a wholly erroneous estimate of the damages. It was outside the range of awards in comparable cases.

There was however a paucity of evidence before the trial judge. There was no evidence of the effect of the injuries on the appellant�s school career, no evidence as to how the injuries have affected his life apart from feeling pain when going up and down slopes, nor to the degree of pain. There was mention of not being able to run or play sport but no elaboration of this. I am unable to say to what extent his disability might continue and for these reasons the assessment of damages is made more difficult.

The trial judge�s finding that the award be reduced by one fifth was not challenged. In all the circumstances I consider that an appropriate award would be K1,500 which reduced by one fifth leaves the sum of K1,200, together with costs and I would order the said sum to be paid into court to be invested by the Registrar on behalf of the appellant and not paid out in whole or in part until the appellant reaches the age of twenty-one which deemed date shall be the 30th November, 1983; except by order of a judge of the National Court.

Order that the appeal be allowed and that there be substituted for the order of the National Court, Judgment for the plaintiff in the amount of K878 with costs as agreed upon or taxed and it is ordered that the said sum of K878 be paid into court to be invested by the Registrar on behalf of the plaintiff and not paid out in whole or in part without the order of a judge of the National Court until the plaintiff reaches the age of twenty-one years which date shall be deemed to occur on 30th November, 1983.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for respondent: C. Maino-Aoae, State Solicitor.

[cxvi][1935] 1 K.B. 354.

[cxvii][1942] A.C. 601.

[cxviii][1976] P.N.G.L.R. 321.

[cxix] [1956] 1 W.L.R. 51; [1956] 1 All E.R. 108.