Reading (as Next Friend of Tania Averil Reading) v Motor Vehicles Insurance (PNG) Trust [1988] PGLawRp 42; [1988] PNGLR 266 (25 March 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 266 - John Francis Reading as Next Friend of Tania Averil Reading v MVIT 

[1988] PNGLR 266

N656

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

READING AS NEXT FRIEND OF READING

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Woods J

15-16 February 1988

25 March 1988

DAMAGES - Personal injuries - Particular awards of general damages - Head injury - Permanent brain damage - Shunt dependent - Unemployable - Female aged five months (10 years at trial) - Award of K75,000 general damages - Award of K116,325 for future economic loss - Interest and costs payable by Trust.

DAMAGES - Measure of - Personal injuries - Motor vehicle accident - Interest on award - Award exceeding limit of liability - Liability of Motor Vehicles Insurance (PNG) Trust for interest on whole award and costs - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 49(2)(a).

INTEREST - Award of interest as damages - Damages for personal injuries - Motor vehicle accident - Limited liability of Motor Vehicles Insurance (PNG) Trust for damages - No limit on liability for interest and costs - Motor Vehicles (Third Party Insurance) Act (Ch No 295), s 49(2)(a).

The plaintiff, a female infant aged five months (10 years at the date of trial) claimed damages for personal injuries suffered when she was thrown from a motor vehicle. The principal injury suffered was a head injury causing hydrocephalus, necessitating the insertion of a shunt mechanism for the permanent removal of fluid and rendering the child permanently brain damaged, unemployable and dependent on others.

Held:

N1>(1)      Damages for pain and suffering and loss of amenities should be assessed at K75,000.

N1>(2)      Damages for future loss of earning capacity should be awarded on the basis that the plaintiff would have been employable in a semi-skilled position as a clerk or secretary, and assessed at K116,325.

N1>(3)      Although under s 49(2)(a) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295), the defendant Trust was liable to an amount not exceeding K100,000 for liability in respect of bodily injury arising out of the use of a motor vehicle, the Trust was nevertheless liable for interest on the full amount of the damages assessed and for costs of the action.

Costello v Talair Pty Ltd [1985] PNGLR 61; Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 at 173 and Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251, applied.

Cases Cited

The following cases are cited in the judgment:

Costello v Talair Pty Ltd [1985] PNGLR 61.

Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 251.

Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491; 36 ALJR 362; [1963] ALR 417.

Trial

This was an action in which the plaintiff infant by her next friend sought damages for personal injuries suffered as a result of a motor vehicle accident.

Counsel:

D Ryan, for the defendant.

Cur adv vult

25 March 1988

WOODS J.: This is an action for damages for personal injuries in which John Reading, the father of the infant Tania Reading sues the Motor Vehicles Insurance Trust as defendant for injuries suffered by Tania as a result of a motor vehicle accident which occurred on 10 September 1978 at Taurama Road in Port Moresby.

Liability has been admitted and this matter comes before me as an assessment of damages.

At the time of the accident the infant Tania was five months old. In the accident the vehicle apparently overturned and Tania was thrown completely out of the car. She was not unconscious but had apparently suffered some head injuries. She was admitted to Port Moresby General Hospital in the Intensive Care Unit and it was noted there that there was bruising over the left temporal area of the head. According to the Doctor who saw her at that time namely Dr John Vince, she did develop some fits two days after the admission and there was evidence of intercranial haemorrhage. She was discharged six days after the admission on some anticonvulsant medication. Six weeks later it was found that Tania had developed hydrocephalus, being enlarged head due to blockage of fluid circulation, and there was some suggestion of temporary blindness at that time. She was therefore referred to Royal Brisbane Hospital in October 1978 and an operation was performed there to provide a permanent drainage for the cerebrospinal fluid. This operation resulted in a shunt mechanism being inserted in Tania’s head which provides the permanent drainage for the cerebral fluid. After that operation in Brisbane she returned home and was on anticonvulsant medication. By 1979 Dr John Vince was of the impression that her general development was already being retarded.

Some time after that the family apparently moved to Townsville and in 1981 Tania came under the care of a Mr Rossato a neurosurgeon in Townsville. Mr Rossato notes that Tania first came under his care in 1981 as a result of a shunt malfunction namely a blockage of the mechanism which had been inserted in Tania’s head to drain the fluid. Around this time in 1981 and 1982 Mr Rossato performed the necessary operations to clear the shunt mechanism and this involved operations to maintain a cerebrospinal fluid pathway and to relive any pressure. There were various shunt revisions at that time. After the operations in 1982 Tania had a period of a year without any problems with the shunt mechanism. Again in 1983 Mr Rossato had to examine the shunt mechanism because of an apparent problem and a mechanical repair was made to the shunt mechanism.

As a result of all these operations Mr Rossato notes, and there appears to be no doubt about this, that Tania is a shunt dependent child who for a while suffered many complications from the insertion of this system which is necessary to control her intercranial fluid components and whilst these complications have now been solved she will always be shunt dependent and as Mr Rossato notes even incomplete obstructions to the shunt unit can create significant problems regarding her health and wellbeing. And whilst every avenue has been explored in an attempt to minimise the possibility of obstructions or problems, clearly an obstruction or other problems will always be theoretically possible as the shunt mechanism being a mechanical mechanism will always theoretically be prone to breakdown. And as the shunt mechanism or shunt provision is a surgical procedure which must be carried out by highly qualified surgeons it is apparent Tania will always need to be within fairly easy access of neurosurgical services.

Tania is now almost 10 years of age and has had numerous hospital attendances and operations as a result of this accident. She is dependent on a mechanical apparatus in her head for the rest of her life and must always be within access of a hospital or medical facilities which have neurosurgical services. Dr John Vince who has known Tania since she was born has noted a quite clear retardation in Tania’s development and it was apparent to me just seeing her in Court that there are some problems with Tania’s general, physical and intellectual development. Dr Vince has clearly stated that it is unlikely that Tania will attain her pre-accident intellectual capacity and that she will require special schooling and it will be unlikely that she will be able to take care of herself in the future when she becomes an adult or go into the workforce at a normal level.

As Dr Vince stated in Court, in conclusion, Tania suffers from major developmental delay both mental and physical, has major difficulties in balance and co-ordination and with visual perception and because it appears that her brain may have stopped growing she will always be mentally retarded and have physical disabilities and such condition will never improve. There is further evidence from an occupational therapist namely Frances Buchanan who, in summary, notes that Tania has general low tone difficulties with visual motor skills and fine motor dexterity. She saw Tania in 1986 and again this month and has not seen any improvement.

Evidence from Ms B Yominao the eye specialist at Port Moresby General Hospital is that Tania has reduced vision and squint as the result of optic nerve damage due to the raised intercranial pressure and as a result Tania has quite a substantial visual incapacity. Dr Yominao states that whilst glasses will be able to help in certain close-up situations with stereo vision, they will not bring the sight together and whilst Tania will learn to compensate in daily routines she will always have to learn new situations.

Dr Burton Bradley, a Professor of Psychiatry in Papua New Guinea, confirms that Tania’s underlying intellectual state is poor and grossly retarded and assesses that she will be unable to engage in any remunerative employment. He adds that it is unlikely that Tania will have a full appreciation of what her real situation is.

It is noted that Tania, when she was born on 17 April 1978, was some weeks premature; however, on the evidence of Dr John Vince I am satisfied that Tania’s state of development cannot be attributed to her premature birth and that the development of hydrocephalus and the complications that have resulted can be related directly to the motor vehicle accident. There is no evidence that there was any pre-existing brain damage or any other condition which could account for these subsequent symptoms prior to the accident.

This means that I am left to assess an award of damages for a 10 year old girl who was five months old at the time of the accident and who quite clearly will never be able to enter the workforce at any normal level and most probably will be unable to take care of herself for the rest of her life. There is nothing to suggest that Tania’s injuries will cause any earlier death than a normal full life span.

It is necessary for me to consider an assessment of damages under the various heads of damage, and these heads of damage are first of all, pain and suffering and loss of amenities, and then loss of earning capacity, and finally expenditure on needs created by the injury such as the cost of hospital and medical and such treatment to date and any ancillary costs involved in these injuries to date and then the possibility of future cost for future treatment and/or any other assistance that may be necessary for Tania.

Under the heading of pain and suffering we will never know exactly how much Tania suffered. We do know that she was thrown out of the car and she hurt her head and was somewhat traumatised by the experience but we can never be sure exactly how much pain was suffered. There is reference by Tania’s father to her crying and there is general evidence that she was restless at various times and obviously uncomfortable. We cannot be sure how those things are felt by a baby. There were also periods of blindness which apparently resulted from the fluid in the head affecting the optic nerves. It is quite clear that there were no, what is termed, horrifying aspects to the injuries, namely, no horrible unsightly injuries which obviously cause pain but this does not mean to say that there was not some pain felt by Tania. Further there was later distress when the shunt mechanism failed. It is easy for us to be sure that there were short periods of pain and distress at various times but we do not know whether there has been prolonged pain and distress. Any figure therefore by which pain and suffering can be quantified is very much a matter of conjecture. I do not see why a figure in the area of K25,000 would not be excessive for Tania for pain and suffering.

With respect to loss of amenities again I am in the realm of conjecture. I am conscious of the words used by Windeyer J in the case Teubner v Humble [1963] HCA 11; (1963) 108 CLR 491 when he said (at 506) that loss of amenities is the name commonly conveniently given to the non-economic consequences of the destruction or diminution, permanent or temporary, of a faculty, which deprives the injured person of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer. Thus damage of this sort is also sometimes called loss of enjoyment of life. There is no doubt that Tania will not enjoy a normal life; however, the question is “Will she know that she is not living a normal life?”. There is a suggestion by one of the witnesses that she approaches pain and distress in a philosophical way. Tania is quite clearly a person who will never attain full normal intellectual comprehension of all the possibilities of life. So perhaps while she is entitled to some compensation that will not necessarily be at the level of a person who has attained a level of full understanding and knows what they are about and knows what they will not be able to do. The authorities are quite clear that I have to look at Tania in a subjective way, with minimal weight to be given to the objective element. However, we will never know how she will approach life in the future and it is all too easy for us at the moment to say that because of her mental retardation she will never really understand what she is not able to do. But there is no doubt that Tania does see what other people do, it may be that in the story of the life with her family up till now she tries to do what the other members of the family do and then quickly gives up whether through frustration or can’t be bothered and goes off and does something else. But this does not mean to say that she does not understand all these things that other members of the family are able to do, so far be it for me to say that she will never understand these things. I think it is quite within the ambit of my discretion to find that there is a very strong possibility that she will be aware of how other people live normal lives and how she will not be able to. This leaves me placing some sort of value judgment on what it appears that Tania is going to lose in the future namely the loss of leading a normal happy life. The probability is that she won’t be able to marry because of her condition and her retardation and will always have to be supported by or looked after by other people. All I can do is take a round figure which is not excessive in the circumstances but on the other hand must not be too minimal. I see no reason why a figure of K50,000 should not be a suitable figure for this heading.

Under the heading of future loss of earning capacity it is quite clear that Tania will never be able to join the workforce, and at the very most she may be able to have some sort of occupational employment in a sheltered workshop but even there is no real income earned, merely a possibility of a very minimal pocket money. Again it is a matter of speculation as to what Tania could have done, because at her age now it could never have been forseen what level of intelligence Tania would have attained at school and therefore what level in the workforce Tania would have finally entered. I must therefore accept an average situation that she may have had a job in a semi-skilled capacity perhaps as a clerk or a secretary. I have been given various figures for the employment of secretaries. However, I feel that I cannot really go any higher than a figure of about $240.00 per week as being a reasonable figure being at a junior secretary level. I have already considered that there is no suggestion of any premature termination of her life as it appears that physically she will be quite able to go through her full life span. So this suggests that I am looking at the future loss of employment from the age of 17 to the age of about 60. In the circumstances therefore I am looking at a figure of $240.00 per week commencing in seven years time and lasting for about 40 years and using the 3 per cent tables with the allowance for not starting for another seven years I arrive at a figure of $238,856.00. It is necessary for me to then allow for a discount for contingencies and a discount figure of 25 per cent is a reasonable discount to apply and that gives a figure of $179,142.00 which converted into kina at an exchange rate of 1.54 gives me a figure of K116,325.00.

Under the heading of hospital and medical expenses there are expenses which have been incurred to date namely accounts for doctors, hospitals, chemist and for a swimming pool all totalling $11,559.99 and K633.30. With reference to the swimming pool evidence has been given that this was recommended as a means of therapy for Tania because of problems with her co-ordination and I therefore approve that cost as part of the expenses caused by the accident. With respect to future expenses there is clear evidence that Tania may have to attend to the hospital for further modifications to the shunt mechanism and on that basis I will allow an amount of K2,000 for future medical expenses.

I am satisfied that Tania will be dependent on someone and whilst such attention is currently being given by her mother, at some time in the future when her mother is no longer able to provide this attention she will have to arrange for some alternative form of care and this will incur some cost. Again we are in the realm of speculation even though there are figures for private nursing charges available. In the circumstances the amount awarded for loss of amenities should be increased by a figure of K12,000.

It is quite clear that Tania is not going to be able to manage the moneys herself and it will be necessary to place them in the hands of a Public Trustee or a Trustee company at the very least when she reaches the age of majority if not before. This inability of her to so manage moneys is a result of the accident so the problems and costs of managing this fund are part of the damages suffered by Tania. I am therefore satisfied that an appropriate management fee should be included as part of the damages. However, I feel it is unnecessary to calculate the amount that should be added in the particular circumstances of this case against this particular defendant.

I would allow interest on part of the damages suffered because the plaintiff has suffered some loss to date for which she has been out of damages and has also incurred expenses to date on which interest is or has been levied.

I would allow interest at 4 per cent on the prejudgment apportionment for pain and suffering, which I assess at K15,000. Interest at 4 per cent on K15,000, from date of filing of the writ namely 28 March 1980 to today is K4,800.00.

I allow interest on the medical and hospital expenses which have incurred interest and figures have been totalled at K337.59 and $1,074.66.

In summary the damages are:

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> td>

Pain and Suffering	K  25,000.00
future care	K  62,000.00
Loss of earning capacity	K116,325.00
Hospital, Medical and other expe expenses	K       633.30	$11,559.99
Interest	K    4,800.00
337.59	$  1,074.66
>	K209,095.89	$12,634.65

Section 49(2)(a) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295) limits the liability of the Trust in the following terms ... “insures the owner against all liability in respect of the death of or bodily injury caused by or arising out of the use of the motor vehicle to an amount not exceeding K100,000”.

I therefore order judgment against the Trust for K100,000.

It is also submitted that the Trust is liable for any interest assessed on the damages and that the Trust is liable for any interest over and above the limit. It is submitted that interest is not part of “all liability in respect of or bodily injury caused by or arising out of the use of the motor vehicle” but is compensation for being kept out of money for some time. Reference is made here to the words of Bredmeyer J in the case Costello v Talair Pty Ltd [1985] PNGLR 61 at 65 where his Honour says that interest is not an incident of the plaintiffs cause of action, it is something given to him under the statute because his damages which are limited are paid late.

I refer also to the case of Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 where the Court (at 173) states “interest is not designed to compensate the plaintiff for loss arising out of the cause of action but to provide compensation where a sum of money has been outstanding for a period of time”.

The plaintiff is entitled to the damages as soon as the damage is suffered or at the very least when a claim is made. In the case before me now if the Trust had paid over the amount ordered at the time the claim was made the plaintiff would not have incurred any interest liability. It is only because the amount assessed has not yet been paid that interest has accrued.

I am therefore satisfied that on the wording of s 49(2)(a) of the Act the limit of the liability does not cover interest assessed by the Court on the liability assessed. Therefore, I find that the Trust is liable for interest assessed from the date of the writ or later if incurred later over and above the limit referred to in the Act. I find no need to apportion the interest according to the limit of the Trust’s liability and the total assessment as the interest would not have accrued if the Trust’s liability had been paid at the date of the claim.

With respect to costs, I refer to the cases Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 and Costello v Talair Pty Ltd and agree that costs are not a loss or injury or liability sustained by reason of the plaintiff’s accident but rather are incurred in pursuing her claim in the court. I therefore find that the Trust is liable for the costs of this action over and above its limit as set out in s 49.

I order judgment for the plaintiff against the Trust in the sum of K100,000 for damages plus K5,137.59 and $1,074.66 for interest.

I further order that the Trust pay the plaintiff’s costs of these proceedings.

Judgment for K100,000 interest and costs

Lawyer for plaintiff: Dawson Waldron.

Lawyer for defendant: Young & Williams.