Endeken v The State and Motor Vehicles Insurance (PNG) Trust [1988] PGLawRp 53; [1988] PNGLR 286 (19 August 1988)

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND MOTOR VEHICLES INSURANCE (PNG) TRUST

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DAMAGES - Personal injuries - Particular awards of general damages - Head and arm injuries - Unconscious one week - Hospitalised seven months - Left and dominant arm totally and permanently useless - Deformity and scarring - Brain damage - Personality change - Regular migraines - Nightmares - Memory lapses - No longer able to play sport or do Scottish dancing - Forced to give up vocation - Loss of future income - Female enrolled nurse - Award of K36,000 for general damages - Award of K30,690 for future economic loss.

The plaintiff an enrolled nurse training for registration, was injured when the motor vehicle in which she was travelling as a passenger collided with another motor vehicle. She was unconscious for approximately one week and hospitalised for seven months. She now has a totally useless left arm which is deformed scarred and wasted. She suffered brain damage, severe scarring, personality change and loss of memory. She continues to experience regular migraine headaches, nightmares, memory loss and constant pain in the left arm. Her employment as an enrolled nurse has ceased as a result of the disabilities and there is little or no chance of future employment. The plaintiff is no longer able to play sport or enjoy Scottish dancing.

N1>(1) General damages for pain and suffering and loss of amenities of life should be assessed at K36,000.

N1>(2) Damages for future economic loss should be assessed, having regard to a stable domestic relationship on the basis of an interrupted career, at K30,690.

Pangis Toea v Motor Vehicles Insurance (PNG) Trust and the Independent State of Papua New Guinea [1986] PNGLR 294.

Pep v Bakri Yamba and the Independent State of Papua New Guinea [1987] PNGLR 485.

This was an action in which the plaintiff sought to recover damages for personal injuries suffered as a result of a collision between two motor vehicles.

HINCHLIFFE J: The plaintiff is claiming damages for injuries she received in a motor vehicle accident on 1 November 1983. She was a passenger seated in the tray of a Toyota Hilux utility owned and driven by one Clement Anowan.

The motor vehicle was travelling from Aitape in the direction of Raihu on the Raihu road, in the West Sepik Province.

Coming in the opposite direction was a Land Cruiser motor vehicle being driven by Joseph Waraningi. The two motor vehicles subsequently collided and the plaintiff received serious injuries.

Mr Payne, who appeared for the plaintiff, indicated at the commencement of the trial that because of an interlocutory judgment on 19 September 1986 the matter in relation to the State was for assessment only and that liability and quantum were in dispute as far as the second defendant was concerned. But my inspection of the court file revealed that on 14 November 1986, Kapi Dep CJ ordered that the default judgment be set aside and that the parties pay their own costs. On that occasion Miss R Thompson appeared for both the defendants and Mr P Wright appeared for the plaintiff. Therefore it seems to me that liability and quantum are in dispute in relation to both the defendants.

[His Honour then considered the question of liability in a manner not calling for report, concluding:]

Even though I am satisfied that the both drivers were negligent, I am of the view that the first defendant was more negligent than the second defendant. I therefore find that the first defendant must bear 80 per cent of the responsibility and the second defendant 20 per cent.

At the time of the accident on 1 November 1983, the plaintiff who was an enrolled nurse, was undergoing a course, at the Raihu Health Centre to become a registered nurse. I have no doubt that the plaintiff suffered serious injury in the accident. Amongst other things she has lost all use of her left arm. Prior to the accident not only did she have full use of the left arm but she was also left handed. Upon waking up after the collision she immediately felt pain and part of the examination-in-chief went as follows:

N2>A. A cut on the right ear and flesh off the right shoulder. Broken bones in left arm in two places.

N2>A. I was working in the sterilising department — sterilising equipment for operating and so on.

N2>A. In place of my left arm I had to use my teeth and two feet to tie or wash.

The plaintiff went on to say that she had difficulty with eating in that she could not cut meat or butter bread which caused embarrassment as she was living at the hospital at the time.

She similarly had difficulties in dressing herself as one could well imagine having only one useful arm. The plaintiff said that she left the job at the Goroka Hospital after six months. She was embarrassed and could not do the job properly. On 13 January 1985 she went to Port Moresby to live with Mr Tom Bartlett and she has not worked since then. She stated that she has not made an effort to find paid work because she is unable to use her hand.

In her evidence the plaintiff said that she was physically fit before the accident and that she had always wanted to be a nurse and had done no other work except that of a nurse.

At present she indicated that she still has the eating and dressing problems and that she is unable to cook. Mr Bartlett helps with the washing and ironing. She is able to write with her right hand but it is not very good.

The plaintiff suffers further embarrassment if she goes out socially. An example is when she goes to a restaurant. Mr Bartlett has to cut the meat for her. She now wears long sleeved dresses with a large pocket to cover her paralysed hand. Also she has obvious problems opening certain types of doors.

To this day the plaintiff not only has migraine headaches every second or third day but she still has constant pain in her left arm which is still of no use. The pain is a very sharp pain. Apart from that she has difficulty using some stairs and escalators.

She also stated that she has difficulty looking after her nine year old son in regard to preparing school lunches, breakfast and ironing his clothes. Mr Bartlett now helps with these duties.

As far as sport is concerned the plaintiff said that before the accident she played volleyball, baseball and table tennis. Since the accident she has not played any sport. One of her other activities prior to the accident was Scottish dancing which she learnt when attending school.

Anyone who knows anything about such dancing would know that holding the arms up above the head is a very important part of the dance and the plaintiff said that she no longer dances.

Finally, in examination-in-chief, she said that she experiences fear if she sees a car travelling at a high speed or being in a speeding car. She fears being in a second accident.

In cross-examination the plaintiff said that she was unconscious for about one week after the accident. She also said that she had not applied for a job in Port Moresby due to her disability and also because of embarrassment. She stated that she went to see Dr Apana in Port Moresby but even though he recommended physiotherapy, she went once and then did not proceed with it because her surgeon had told her that her arm was of no use. Needless to say she did do passive exercise which was a form of physiotherapy and she had commenced that exercise at Wewak.

I found the plaintiff to be a good witness who impressed me with her honesty. She has suffered a severe injury that will be with her for the rest of her life. She is clearly embarrassed about her disability and is unable to work in the only employment that she has ever been interested in, that is, nursing. I accept her evidence. Not only is she now prevented from working as a nurse but she also can no longer enjoy playing sport and dancing (Scottish). She is unable to care for her son properly and clearly is unable to work to the full in her home. Migraine headaches have become very much a part of her life and generally speaking she is unable to perform many functions that a two armed person can perform.

I accept that her situation at the Goroka Hospital was almost impossible and the fact that she was embarrassed and could not do the work properly does not surprise me at all. She was an enrolled nurse given a job far below her qualifications which she was unable to perform because of her disability.

All the same she was expected to try and do the job in the most humiliating circumstances. From what she has said and from what other witnesses have said I would have thought her chances of employment in the future are bordering on the impossible.

Witnesses that know the plaintiff said that she was a good nurse before the accident. They also said that two hands are needed in nursing. It clearly would be difficult to be employed in an hospital as an enrolled nurse with the use of only one hand. It is known almost to everyone that nurses have to, amongst other things, lift patients, prepare medicines, give injections, do bandaging, write reports and so on. Apart from all of that the sick need to be looked after by a physically and mentally fit person who has no disabilities.

It was suggested that the plaintiff could fill some supervisory role in hospital and therefore not need to use two hands. I am not so sure about that. I would have thought that such a role would require the writing of certain reports, demonstrating certain things and the like.

Anyway it became clear to me from the evidence that such a position would not be available because the plaintiff would need to be a registered nurse. Of course it was when she was endeavouring to become a registered nurse that she suffered the injury. It seems that even after the accident the plaintiff made inquiries as to the possibilities of completing her registered nurse training but she was not able to do so.

Several doctors gave evidence and a number of medical reports were tendered. Dr Benjamin Tahija stated that he had inspected the plaintiff on the day that he gave evidence and confirmed that she had 100 per cent loss of use of her left arm. He said that there would be no improvement as her condition was now static. He also said that there was no further treatment that she could undergo. The doctor also disagreed with Dr Apana who had recommended physiotherapy. He was of the view that physiotherapy would be of no use. Part of the examination-in-chief went as follows:

N2>Q. Is being left or right handed caused by the dominance of one side of the brain?

N2>Q. Is it correct that after an injury to a left limb a naturally left-handed person would still continue to be left handed even though the limb was useless?

In cross-examination the doctor said that nursing duties would be impossible and that any other duties at a hospital would be extremely difficult. In his words he said: “She would have to start again.”

Also in cross-examination he said that physiotherapy would not have been in order two and a half to three years ago because it was a permanent nerve injury.

“This is to certify that I have on this day, Thursday 1st October 1987, examined Anna Endeken, who alleged to have been involved in a motor vehicle accident in Aitape on 1/11/83. I am of the opinion therefore on the following (in addition to the fractured left upper arm with rush pin in situ, and numerous scars from injury, open reduction repair, diathermy burn and skin grafting on right thigh):

N2>1. She has 100% loss of function use of the whole of her left upper limb. It is completely paralysed, and she is left handed.

N2>2. She has gross wasting of the muscles of her left upper limbs (left arm), and shoulder muscles, and as a result has a dislocation at the shoulder joint.

N2>3. Post trauma she has been psychologically affected. I believe she is now more aggressive, easily angered, and suffers from frequent left frontal migraine type headaches. She even needs help to dress, and obviously this alarms her considerably, that she now has to depend so much on others.

N2>4. Although her visual acuity is good (eye sight), she complains of double vision which improves somewhat with spectacles. Prior to the incident, she did not wear spectacles.

N2>5. The nerve damage (Brachial Plexus) is permanent, and will not improve. Therefore physiotherapy to the muscles will not be beneficial to the patient. As a result, she suffers constantly from deep pains in her useless left arm (she is suffering from neuralgia). This will not improve.

N2>6. Obviously future muscle wasting will continue on the affected left arm, and finally,

N2>7. It is impossible, I repeat impossible, for her to continue in her normal duties as a nursing sister because of the complete loss of use of one upper limb. She will have to start anew in a completely different form appropriate engagement if she ever considers work again, and this may be difficult.” [sic]

I was impressed with the doctor’s evidence and he certainly supported the plaintiff’s evidence regarding her condition. Even though he admitted he was not a psychiatrist or orthopaedic surgeon he spoke with knowledge and experience in the field.

Dr Burton G Burton-Bradley, psychiatrist also gave evidence and his report of 5 October 1987 was tendered. In the said report the doctor said, inter alia:

2. A personality change in which she is unhappy, tense, irritable and aggressive. The features are at variance with her former good nature. Her friends say she was gentle and friendly but is now entirely different.

3. She attempted to resume work after the accident but soon abandoned this as she was completely incapable of performing her tasks and frustrated because of this.

4. She suffers continuous pain in her left arm and this is only partially relieved by analgesics.

6. She suffers defects of recent memory which she did not have before the accident. She forgets names of people she should remember (nominal aphasia) and forgets what she intended to do in the house.

7. Dreams and nightmares were frequent immediately following the accident, are less frequent now, but still occur. They are thematically similar in that their content is gruesome and related to injury.

8. She formerly played soft ball and volley ball and was especially interested in the Scottish dance. She does none of these things now.

9. She suffers insomnia and wakes up in fear. She bangs her hand in an attempt to control the pain and bends the fingers back for the same purpose.

In my opinion Ms Endeken suffers from BRAIN DAMAGE, POST TRAUMATIC PERSONALITY DISORDER, NOMINAL APHASIA, POST TRAUMATIC STRESS DISORDER and completely PARALYSED (and totally useless) LEFT ARM.

The evidence for the head injury lies in the history of accident in which she was pinned down, the continuous headaches, the marked personality change, the dreams and nightmares of a specific kind typical of brain damage and the confusion and unconsciousness at the time of the accident. All this is consistent with actual brain damage. There is a further factor stemming from all of the above and that is a psychosomatic one. Her attitude to her illness has been bitter and hostile, and at a pre-delusional level.

In other words she hates other people to notice or talk about her injuries and she tries to cover them up. In my opinion the prognosis for remunerative work in her profession is nil as it is for work generally. The prognosis for behaviour change is also doubtful in view of the permanent nature of her injuries.”

The witness was cross-examined very thoroughly by Miss Thompson but I am of the view that the doctor stood firmly by his report and did not change his views under cross-examination.

A report dated 2 April 1987 from Dr Danomira was also tendered and in part it reads:

N2>3. Complete loss of muscle power, muscle and tone and reflexes of the left arm and shoulder.

N2>4. Scars: l7cm surgical scar below the left collar bone and continuing to the left shoulder.

This scar has developed into keloids (abnormal and excessive scar tissue) which are unsightly.

X-ray of the left humerus shows a Rush pin in situ and a dislocated left shoulder lack of muscle tone.

I am of the opinion that Mrs Anna Endeken was rendered a permanent disability to the left arm as a result of the accident on 1/11/83.

The total paralysis of the left arm and the left shoulder muscle groups indicate complete avulsion of the cervical nerve rootless from the spinal cord. The rootless joints form the brachial plexus of the upper limb. The injury and permanent disability occurred at the time of accident and to have exposed her to a major exploratory surgery (resulting in diathermy electrical burns) of the brachial plexus in my opinion was an error of judgment by the surgeon. As a practising nurse dealing with life saving procedures, the loss of the dominant arm was catastrophic.

1. 100% total loss of the left arm from the shoulder down for any form of manual labour.

That report clearly shows the extent of the injury and also to its permanency. It certainly highlights the severe scarring on which the other medical practitioners did not seem to lay as much emphasis. I would have thought the scarring is of considerable importance as far as the plaintiff is concerned. Indeed the photographs in evidence show some of the scarring but more particularly they show the wasting and the deformity that has developed in the left arm. Probably this type of injury affects a woman more than a man although my final assessment does not include that opinion of mine because I am fully aware as to some Appeal Court decisions in other countries who have said that when assessing damages the court should not distinguish in such a way between men and women.

In evidence also was a medical report dated 21 March 1988, from F Y Attah Johnson, psychiatrist. She conducted a neuro-psychiatric examination on the plaintiff at the Port Moresby General Hospital. In part the report reads as follows:

2. Lower motor neurone (flaccid) paralysis of the left upper limb, which is wasted. When she sits down the left upper limb is placed loosely on her thighs but during standing and walking the left hand is placed in the left pocket of her dress with the help of the normal right hand.

4. Healed scar at the tip of her right elbow. This is not directly due to the motor vehicle accident.

Physical examination of the central nervous system, cardiovascular, respiratory, gastrointestinal and locomotor systems showed no other abnormality. Testing of the eye movements showed no evidence of diplopia (seeing double).

Confirmation of the paralysed and wasted left upper limb. Her mood was anxious and apprehensive in keeping with her life circumstance. She answered questions clearly and coherently. She writes well with her right hand. Detailed examination of the cognitive state showed some abnormalities as follows:

(b) Impaired concentration eg. serial (100 - 7) = 93, then 87, 83 ... (112 - 25) = 85 (correct answer is 87).

(c) Impairment of immediate and recent memory function, which is required for conversation and coping with daily activities. On the other hand her memory for remote (past) events was good.

Her intelligence level is average and compatible with her professional status as a nurse.

Impaired concentration and impaired memory for immediate and recent events but not for remote (past) events could be caused by head injury as a result of a motor vehicle accident. It is an extension of anterograde amnesia (loss of memory for events occurring after the accident) which is commonly observed in the post-accident period. Therefore, it means she has problem with short-term memory storage.

N2>(a) Language and speech function: generally not impaired, but she has problem with abstract concept formation on two out of three tests. This is a test for the dominant cerebral hemisphere.

N2>(c) Visuo-spatial and Constructional Dyspraxia Test was also normal. This is a test for the non-dominant cerebral hemisphere.

N2>(d) Number functions. She was able to do simple calculations such as addition, subtraction, multiplication and division correctly. She was able to identify correctly and add up coins of 1 toea, 2 toea, 10 toea and 20 toea denominations up to one kina.

N2>2. Lower motor Neurone (Flaccid) paralysis of left upper limb resulting in wasting of biceps, triceps, brachio-radialis muscles and the small muscles of the hand.

(d) Recurrent nightmares in the form of ‘flash-back’ experience of the motor vehicle accident.

The recurrent nightmares will gradually improve and subside. The diagnosis (2) and (3) above are obviously permanent. The neuropsychiatric disabilities listed in 4(a), (b) and (c) above form part of a post-concussional syndrome and are unlikely to improve more than four years after the motor vehicle accident on 01/11/1983.

In my opinion, improvement of focal brain damage or brain dysfunction can occur up to two years after the injury as a result of physiotherapy, rehabilitation and compensation of function by the patient for his neuropsychiatric deficit. Anna Endeken’s neuropsychiatric disabilities are due to brain dysfunction.”

The doctor is clearly saying that physiotherapy soon after the accident may well have assisted the plaintiff but that opinion does not seem to be supported by the other practitioners’ views.

In assessing all the evidence I am of the view that physiotherapy would not have assisted the plaintiff’s nerve damaged left arm. I am also satisfied that she was brain damaged.

The medical evidence has convinced me that the plaintiff is now a very different person to what she was prior to this most unfortunate accident. I am satisfied, apart from the obvious fact that she has a useless left arm, that she has undergone a personality change and that she has constant severe pain in her left arm and experiences regular migraine headaches. She also has memory lapses and unpleasant nightmares relating to injury.

Her sporting activities are finished as is her Scottish dancing. The plaintiff suffers from insomnia. She has been left with a large amount of scarring, deformity and wasting of the left arm. In all she has suffered considerably.

Gordon Thomas Bartlett, the de facto husband of the plaintiff confirmed most of what has now been said in this judgment. I found him to be an honest witness who no doubt has put up with a great deal and has helped the plaintiff over her last four or so troubled years.

He has supported her and her son financially and emotionally. He spoke of her difficulties with dressing, eating, cleaning, writing and sleeping. He also spoke of her headaches. Quite frankly it is hard to imagine how the plaintiff and her son would have coped without Mr Bartlett, he clearly has been of enormous assistance and has attempted to make the plaintiff’s life as normal as possible.

In Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557, the plaintiff suffered fractures of the left forearm and wrist resulting in a permanent deformity because of a misalignment in union. He already had a deformed right arm. General damages in the sum of K18,000 were awarded.

In Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573, the plaintiff suffered a compound fracture of the right humerus with damages to the ulna nerve causing claw hand deformity. There was initial non union of the fracture requiring treatment with bone plating and bone grafting.

As a result of the nerve injury the plaintiff suffered a 50 per cent loss of the effective use of his right hand having difficulties with tasks needing lifting and gripping. His marriage was adversely affected. General damages were awarded in the sum of K10,000.

In Pangis Toea v Motor Vehicles Insurance (PNG) Trust and the Independent State of Papua New Guinea [1986] PNGLR 294, the plaintiff suffered fractures of the left arm and left humerus, a compound fracture of the left femur and a fracture dislocation of the left hip. She was hospitalised for six months. Her permanent disabilities included a totally useless and wasted left arm with a claw hand and a 70 per cent loss of efficient use of the left leg. Her marriage broke up. General damages were assessed in the sum of K35,000.

In Pep v Bakri Yamba and the Independent State of Papua New Guinea [1987] PNGLR 485, the plaintiff suffered 50 per cent permanent disability to one arm. General damages were assessed in the sum of K15,000.

Past cases are always useful but it should always be remembered. that they can only be guidelines. Every case is different and therefore has to be treated differently. In this case the plaintiff has suffered the loss of her dominant arm as well as deformity and scarring.

She is very much reliant now on help from others and unlike the above mentioned cases this plaintiff has suffered a personality change because of head injuries. She suffered unconsciousness, although for what duration is not clear. It seems to be somewhere in the vicinity of one to two weeks. She has also lost many pleasures she enjoyed before the accident.

The plaintiff has not worked since 13 January 1985 and I am of the view that she is entitled to the loss of income. Even though she left her employment at her own free will, as I have already stated she was working under almost impossible conditions. She was unable to do the work because of her disability and that combined with the embarrassment of trying to carry out the work in an humiliating way forced her to leave. It seems to me that she got little consideration or sympathy from the hospital when she complained and she was left with no other alternative but to leave. Her employment prospects for the future are almost nil.

At the time of the accident she was a nursing officer grade 1 on a fortnightly single salary of K173.48. Up until now, less tax, I arrive at a figure of K15,098.

I cannot agree with Mr Payne that the plaintiff would have had 24 years working life ahead of her. In the event that she had continued living alone with her child then I might have agreed. But the truth is that arrangements were made, according to Mr Bartlett, to bring him and the plaintiff together. They have now been together since January 1985 and there is nothing to suggest that there is anything but a happy and stable relationship. Mr Bartlett was alone and he no doubt is now hoping to start a family. The plaintiff has one child from a previous relationship. Mr Bartlett is an electronics technician with PTC and quite able, as he has already shown, to support the plaintiff financially. It was submitted that as they are not yet married there is nothing binding Mr Bartlett to keep providing for the plaintiff. But time tells a story. Under such difficult circumstances these two people have stayed together for over three and a half years. Mr Bartlett has stood by the plaintiff and looked after her and cared for her. It is a strong relationship and one that I would have thought is permanent. The next step would be to have children and I am of the view that because of the duties of raising a family the plaintiff would have more than likely worked at various stages between raising children. I am of the view that future economic loss should be assessed over a period of 10 years. Therefore I assess future economic loss on table 2, H Luntz, Assessment of Damages for Personal Injury and Death (2nd ed, 1983), p 543 at 10 years on a multiple of 452. That is K36,160. I take into account what Mr Payne has submitted regarding contingencies but I am of the view that the figure should be discounted by 15 per cent which amounts to K30,690.

I order there be judgment for the plaintiff in the sum of K86,764 made up as follows:

I further order that the first defendant is to pay 80 per cent and the second defendant to pay 20 per cent of the plaintiff’s taxed costs.

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Pain and suffering and loss of amenities of life	K36,000
Interest on K18,000 at 8%	K 2,295
Past loss of income	K15,098
Interest at 4%	K 2,681
Future loss of income	K30,690
	K86,764
First defendant to pay 80%	69,411
Second defendant to pay 20%	17,353
	64

Papua New Guinea Law Reports

Endeken v The State and Motor Vehicles Insurance (PNG) Trust [1988] PGLawRp 53; [1988] PNGLR 286 (19 August 1988)

Papua New Guinea Law Reports - 1988-89