Fowler v Fae and New Guinea Industries Pty Ltd [1977] PGLawRp 569; [1977] PNGLR 501 (26 August 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 501 - Suzanne Fowler v Movo Fae and New Guinea Industries Pty. Ltd.

[1977] PNGLR 501

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SUZANNE FOWLER

V

MOVO FAE

AND

NEW GUINEA INDUSTRIES PTY. LTD.

Waigani

Prentice DCJ

14 June 1977

16-17 June 1977

26 August 1977

DAMAGES - Personal injuries - Particular awards of general damages - Fractured skull - Generalized head injuries - Fractured femur - Shortening of leg - Disfigurement of knee - Continuing pain in leg - Restricted mobility and agility - Functional tension overlay likely to conclude with termination of litigation - Female aged 11 (17 at trial) - Award of K10,000 general damages.

The plaintiff, a schoolgirl aged 11 years (17 at trial), claimed damages for personal injuries arising out of a motor vehicle accident. The principal injuries suffered were a fracture of the skull, generalized head injuries and a fracture of the femur. The plaintiff spent four and a half months in hospital and was left with a residual disability, namely shortening of the left leg and some disfigurement of the left knee resulting in restricted mobility and limited participation in sporting activities. In addition the plaintiff will continue to have some pain with the leg and will have some difficulty in holding a job that requires bending, lifting or standing for long periods. There was also some functional tension overlay which it was found would conclude with termination of litigation. There was not established any loss of a particular vocational or commercial opportunity and no damages were awarded for future economic loss.

Held

General damages should be assessed at K10,000.

Trial

This was an action in which the plaintiff claimed damages for personal injuries suffered as a result of a motor vehicle accident in February 1971.

Counsel

J. A. Griffin, for the plaintiff.

D. Letcher, for the defendant.

Cur. adv. vult.

26 August 1977

PRENTICE DCJ: The plaintiff was a young girl of 11 when she was injured as a passenger in a motor car accident in February 1971. She is now 17, and attending High School in Maitland, N.S.W. I have already given judgment in respect of her sister Catherine who was injured in the same accident. Liability having been admitted, the issues I am concerned with relate to quantum of damages only.

The plaintiff suffered a fracture of the skull, generalized head injuries and a fracture of the femur. She was in hospital some four and a half months. It is submitted that the head injuries included diffuse brain damage, or at the least, a “functional overlay” of symptoms of psychosomatic origin. There is a shortening of the left leg and some disfigurement of the left knee. Pain continues in the leg. Dr. Millar detects a form of sciatica proceeding, as I understand her views, from the accident -- an aggravated scoliosis.

BRAIN DAMAGE

The evidence upon which the contention as to significant brain damage relies is principally that of Dr. Millar (the girl’s physician), and the conclusion of Dr. Hurley, a psychiatrist of Brisbane. Dr. Millar relied on her long association with and observation of the plaintiff. She considered that the plaintiff’s present irritability, combined with pre and post amnesia, indicate continuing damage to the temporal lobe. She has not considered investigation as to possible epilepsy to be warranted. A blurring of vision occasionally, she attributes to tension or anxiety rather than to an organic origin. Dr. Hurley, after taking a history in August 1972, stated it was probable, having regard to the post-traumatic amnesia, that the plaintiff suffered diffuse structural brain damage, to which fat embolism from the femur fracture could possibly have contributed. He mentioned that irritability is a cardinal symptom of brain damage, and tendency to fluster on testing is consistent with impairment of brain function. (In her own evidence, the plaintiff did not speak of any “tendency to fluster”.) He suggested that “the symptom of irritability associated with traumatic brain damage is of more ominous significance”.

On the other hand Dr. Atkinson, a neuro-surgeon, in August 1972 found no significant abnormalities in the plaintiff. He considered she had suffered a “mild head injury”, and he appeared to exclude the possibility of brain damage. Dr. Clezy, in June 1977, found no damage to her central nervous system. He also discarded the existence of brain damage. He explained that the girl was, unlike patients with brain damage, aware of her irritability, dissatisfied with it, and trying successfully to overcome it. He summed her up as “a pretty normal 17-year-old, and I would have said there was no evidence that she ever had serious brain damage”. He himself has four teenage daughters and found the plaintiff “unusually mature under the circumstances”. He did not think much of Dr. Hurley’s theory as to fat embolism. The plaintiff seemed “a very well adjusted girl”. He suggested full psychometrical testing as the way to assess intellectual function in elucidating whether brain damage has been suffered.

At the time of the trial, psychometrical testing of the plaintiff was carried out by Mr. Symons, the Government Psychologist, over a period of 3« hours. The tests, Mr. Symons said, were such as could well be expected to induce irritability. None such was induced. He was testing for the express purpose of examining the possibility of brain damage. He administered various tests and procedures which would allow assessment of brain damage. And he took a full history from her. He appears to have found no abnormality at all, and concluded there was no significant brain damage. Her reactions of “frustration tolerance” were apparently normal. Mr. Symons pointed out that petulance and irritability are quite characteristic of adolescent behaviour -- as we are all aware. He concluded that there was no specific or diffuse structural brain damage that has shown itself up in any of the tests employed, and that the “diffuse phenomenon concept is very woolly”. The accident he thought, “had become a focus which provided very reasonably from Suzy’s point of view for failures, upsets, illnesses, that are endemic to maturing in adolescents”.

I do not find myself satisfied on the balance of probabilities, that any significant brain damage has been suffered by the plaintiff, and I propose to make no award covering this ground.

THE HEAD

The plaintiff suffered a depressed fracture of the skull, some trace of which can apparently be still detected on the right temple. She had tremendous bruising and swelling of the head. She suffered three-quarters of an hour complete amnesia following the accident, and partial amnesia for the following two weeks. Transfusion was necessary, and in administering the same and an anaesthetic, a dangerous situation developed. She cried continually for her parents for 32 hours afterwards. She had quite severe headaches during the hospital period -- which gradually subsided. There was occasional headache in 1973. She suffered nightmares, dizzy turns on occasion, and some aggravation it seems of bedwetting and sleepwalking. Obviously her nervous system received a bad shaking. In 1974-75 the headaches became a migraine every three to four months. Those she suffers from now, are plainly tension-type headaches, and it seems they may continue to be experienced from time to time in the future. They are however relieved fairly readily, it seems, by aspirin. A blurring of vision occasionally troubles her; and I form the view as does Dr. Millar that this must be associated with the anxiety and tension which the accident and its sequelae, and the pendency of the court proceedings, produced. “Very anxious and tense”, Dr. Millar describes her. I form the impression from all the medical evidence -- in particular that of Dr. Clezy, and from that of Mr. Symons, that the headaches do not produce a “crippling” effect and have been somewhat overplayed in the general situation of anxiety. For example to Dr. Clezy, she recited a frequency of a week in a month -- for which she took no medication. He formed the conclusion there was no migraine. To Mr. Symons she mentioned having headaches about once a month. I think it is reasonable to conclude that with the termination of this litigation, tension and a good deal of the headache will subside.

THE LEG FRACTURE

This undoubtedly led to pain, inconvenience and distress. She was in hospital with it for months. She has been left with a knock knee effect of a slight degree, and a minimal shortening of the leg which produces a slight awkwardness at times and a change of gait. This has added to sensitivity and emotional upset, and in combination with medical advice she was given, has prevented her from indulging in sports that would ordinarily have been most beneficial to her. Dr. Clezy is of the opinion, and I accept his evidence, that most of the difficulty being found with the leg other than the cosmetic one of a rather minor order, can be remedied by a shoe adjustment. Something that would pass the more unnoticed, I should think, while thick or platform soles and heels remain current fashion. I am satisfied from all the medical evidence that the plaintiff will continue to experience some pain with the leg for some time, and will have some difficulty in holding a job that requires bending and lifting or standing for long periods. There are a number of activities, squatting, kneeling, crawling, that may be a little more difficult for her than for others. There appears to be a loss of function in the leg of some, 10-15%.

THE SCOLIOSIS

Dr. Clezy states that the scoliosis, which Dr. Millar finds to be issuing in a form of sciatica, is not the result of the accident. It is an ideopathic one -- he says, a slight generalized curve convex to the lift. It will not get worse -- it is a very gentle diffuse curve, of the gentlest type. A half-inch raise in shoes would attend to it. He did not believe the girl should suffer from sciatica; and the pain described by her is not apparently of the kind exhibited by sciatica. Despite Dr. Millar’s belief to the contrary, I prefer Dr. Clezy’s opinion on this matter. I form the view that the scoliosis is not attributable to the accident, and that any pain being suffered is not coming from the scoliosis or sciatica. This aspect does not, I consider, call for compensation, though the pain being felt in the leg, as I mentioned in the last paragraph, does.

GENERALIZED INJURIES

The plaintiff suffered many other disabilities from the accident, some of which doubtless have been added to by the injuries to head and leg. She incurred considerable pain and shock. Her participation in school sports has been ruled out. She feels a generalized weakness in the leg, sometimes pains in ankles and knees on waking (though no doctor has explained the manner these are attributable to the accident). The is sensitive to others watching her leg, and imitating her gait. She never runs because of that. Occasionally she finds herself unaccountably off balance. A dizziness sometimes troubles her. She has crying bouts and lacks concentration. These are matters for compensation.

ECONOMIC LOSS

It is submitted that some allowance should also be made for compensation in regard to loss of job opportunity. The plaintiff had, before the accident, entertained an ambition to be a teacher and had always come first in primary school in Lae. Now, her school work is falling off, and she faces failure this year in her Form VI. When one has regard to the age of the plaintiff at the accident (11), I think no reliance can be placed on her ideas then for the future as to a calling. During her schooling she has suffered a change from the security of boarding school at Charters Towers, Queensland, to a day school shared with boys at Maitland, N.S.W. She lives with a family some distance away in Cessnock. She was doing better at Charters Towers than she is now at Maitland. Having regard to the change in nature and location of the school (necessitated by her parents’ difficulties at the time -- two years’ ago) and the immaturity of the plaintiff at the time of the accident -- I find there is too much of the order of speculation, to allow me to come to a conclusion that her school performance on the probabilities, has been significantly affected by the accident. There are too many other possible factors. ... One for example, is that she considered herself disadvantaged by age and by the syllabus in the new setting (N.S.W.). I conclude that the evidence does not establish that any loss of a particular vocational or commercial opportunity has been caused by the accident, for which allowance should be made in the damages.

Out-of-pocket expenses were agreed at the amount of K1,989.45. To these I consider, should be added the amount of K119.60 relative to the plaintiff father’s expense of returning from Mt. Isa to assist in the treatment of the plaintiff -- which I consider reasonably incurred in the plaintiff’s behalf.

General damages I assess at K10,000. There will be a verdict for the plaintiff in the amount of K12,109.

Judgment accordingly.

Solicitors for the plaintiff: L. K. Young & Associates.

Solicitors for the defendants: Gadens.