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Vava v Vava [1998] PGDC 19; DC42 (13 November 1998)

Unreported District Court Decisions

[1998] PNGDC 20 - WINNIE VAVA - EGON VAVA

[1998] PNGDC 20

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

NO 202 OF 1998

WINNIE VAVA (Plaintiff)

v

EGON VAVA (Defendant)

Kimbe

G Manuhu SPM

9 September 1998

22 September 1998

6 November 1998

13 November 1998

DAMAGES - Personal injuries - Particular awards of general damages - Arm injury - Loss of 40 per cent efficient use - Housewife aged 45 - Comparative past verdicts and money values - Award of K7,500 general damages.

Cases referred to

Kokonas Kandapak v Independent State of Papua New Guinea [1980] PNGLR 573

Kaka Kopun v Independent State of Papua New Guinea [1980] PNGLR 557

Kosi Bongri v Independent State of Papua New Guinea [1987] PNGLR 478

Pep v Independent State of Papua New Guinea [1987] PNGLR 485

Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1

Roulstone v Ketley [1966] 2 NSWR 389n (FC)

Representation:

Counsel/Representative:

Plaintiff: In person

Defendant: In person

13 November 1998

G MANUHU SPM:

N1>[1]����� This is a claim by a wife against her husband for personal injuries received in the course of a domestic argument. The defendant does not deny liability so the only remaining issue is that of assessment of appropriate damages.

N1>[2]����� The reasons for the assaults which gave rise to the subject injury are not really clear except that the defendant is seeing another women. Without prejudice to both parties it would suffice for the purpose of this proceeding that the said affair is substantially the underlying cause for their domestic disagreements and arguments.

N1>[3]����� The plaintiff was first assaulted by the defendant on 31 August 1997 and was attended to by H. Mato, a Health Extension Officer at the Out-Patients Department. The relevant medical report dated 2 September 1997 states:

"She was crying with deform left forearm and a painful left hip. Examination revealed in severe distress of pain and unable to sit up. Local examination of the hip:

- swollen

- tender skin

- able to stand on both legs

- no sign of fracture hip

Local examination of left forearm:

- swollen and deformed forearm very tender.

X-ray No. 2-2921 shows fracture 1/3 of the ulna and radius. Back slab was applied to immobilise the fracture and for POP above elbow later when swelling is down. She will be seen again for review X-Ray in 2 months."

The plaster was removed on 25 October 1997, X-Ray was taken and showed that the bone had healed but was still displaced. The plaintiff was "unable to move her fingers (form or fist) and was also unable to lift her arm without support".

N1>[4]����� The plaintiff was still recovering from the said injury when the defendant hit the same arm with a stick on 13 August 1998 causing ". . . swelling and pain around the left elbow and under the armpit. X-Ray taken showed a mild dislocation of the elbow joint." The elbow was bandaged and an arm-sling applied. Altogether, the plaintiff had suffered a fracture of both ulna and radius and dislocation of the elbow joint from beatings by the defendant.

N1>[5]����� On 28 September 1998 a final observation of the injury was done by Dr Sammy Thomas, MBBS, M. Med. (UPNG) of Kimbe Hospital. His conclusion is that the plaintiff has a 40 per cent functional loss of her left hand, and, that it may take a long time if the hand is to recover.

N1>[6]����� In her Complaint the plaintiff is basically claiming K7,000 for the injury and K500 for "pain and suffering". This is confusing but it is obvious that pain and suffering should be the plaintiff's main claim. This means that if K7,000 is for pain and suffering what is the K500 for. I can ignore the K500 but I propose to consolidate the two figures so that the actual claim for pain and suffering becomes K7,500. However, the final award has to be assessed.

N1>[7]����� In Kokonas Kandapak v Independent State of Papua New Guinea [1980] PNGLR 573 Kandapak suffered a compound fracture of the right humerus with damages to the ulna nerve causing a claw hand and deformity. His treatment included bone plating and grafting. The end result is that he suffered 50 per cent loss of the effective use of his right hand and therefore he had difficulties with lifting and gripping. He was awarded K10,000 for pain and suffering. In Kaka Kopun v Independent State of Papua New Guinea [1980] PNGLR 557 Kopun's principal injuries were fractures of the left forearm and wrist resulting in a permanent deformity because of misalignment in union. He was awarded K18,000. In Kosi Bongri v Independent State of Papua New Guinea [1987] PNGLR 478 Bongri in his late forties suffered a comminuted fracture dislocation of the right elbow, which healed leaving a 100 per cent loss of efficient use of the elbow for heavy manual labour. He was awarded K7,500 for pain and suffering. In Pep v Independent State of Papua New Guinea [1987] PNGLR 485 the principal injuries were severe fractures of the left arm bones which took a long time to heal and required a bone graft four years later. The residual disabilities included a deformed arm with about 50 per cent reduction in usefulness. Pep was awarded K15,000 for pain and suffering.

N1>[8]����� All these cases arose out of motor vehicle accidents. The least award was for K7,500 in Kosi Bongri v Independent State of Papua New Guinea (supra). However, the pain and suffering in that case is slightly more serious than in this case. Thus, on the basis of pain and suffering alone I would assess general damages in this matter at K4,000. However, I do not think I should stop here. My arrival at K4,000 is based on figures for 1987. It has been more than 10 years since then. I am no economist but K4,000 for 1987 is not the same as K4,000 for 1998. Ten years ago K10 can buy you more. Nowadays K10 can only get me a tin of milo, a Besta tinned fish and an Ox & Palm. Our currency used to be the same as the American currency. Today our Kina is 50 per cent less than the American currency.

N1>[9]����� Owing to time constraints, I am not sure of any clear observations on the matter within our jurisdiction but in Australia and England numerous dicta warn that comparison with past awards must take into account the fall in the value of money. In Lee Transport Co Ltd v Watson [1940] HCA 27; (1940) 64 CLR 1, for instance, Dixon J pronounced the popular statement that "the figures to which in former times courts grew accustomed ought not to govern our notions of what should be awarded in the terms of the money of today with its reduced purchasing power." Worth noting also is Walsh J's dissenting judgment in Roulstone v Ketley [1966] 2 NSWR 389n (FC), which was upheld by the High Court in (1961) 34 ALJR 495. His Honour said (at 392):

"[I]t is legitimate and proper to measure a verdict which is in dispute against a standard or norm derived from judicial experience and established by reference to the general run of verdicts in comparable cases, and to the manner in which such cases have been dealt on appeal. For this purpose the court has considered it proper to make reference to what is currently happening at nisi prius and on appeal, and also to what was usual or normal at an earlier period, provided that, in the latter case, due regard is had to changes in the purchasing power of money or to other relevant changed circumstances."

N1>[10]��� In the circumstances, I am of the view that it would be erroneous, and, a departure from the principle that plaintiffs should be put back in the position they would have been in if they had not been injured, to isolate economic realities from assessment of damages in these types of cases. I would therefore assess damages for pain and suffering in this matter at K7,500. Incidentally, for argument sake, on the basis that my initial assessment is based on cases of 11 years ago, if we calculate interest at 8 per cent per annum for 11 years on K4,000 (K4,000 x 8 per cent x 11 years) we would arrive at K3,520. I am therefore satisfied again that K7,500 is the appropriate compensation in this matter.

N1>[11]��� Orders accordingly.