Costello v Talair Pty Ltd [1985] PGNC 10; [1985] PNGLR 61; N503 (22 March 1985)

N503

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

COSTELLO

V

TALAIR PTY LTD

Waigani
Bredmeyer J

19 September 1984
22 March 1985

DAMAGES - Personal injuries - Particular awards of general damages - Burns - Lacerations - Chest and shoulder injuries - Traumatic amputation of ear - Scarring - Fear of flying - Male aged fifty-seven - Award of K18,000 general damages.

DAMAGES - Personal injuries - Statutory limit on amount "for damage sustained" - Not including interest or costs - Civil Aviation (Aircraft Operators’ Liability) Act (Ch No 292), ss 24, 27 - Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52).

INTEREST - Award of on damages - Personal injuries - Statutory limit on amount "for damage sustained" - Not including interest or costs - Civil Aviation (Aircraft Operators’ Liability) Act (Ch No 292), ss 24, 27 - Judicial Proceedings (Interest on Debts and Damages) Act, (Ch No 52).

The plaintiff, a male company executive, aged fifty-seven years suffered personal injuries in a plane crash following which he was not rescued for twenty-four hours. The injuries suffered included burns to the face, scalp and right arm, a traumatic amputation of the right ear, subsequently reconstructed, lacerations and chest injuries including fractured ribs. Residual discomforts and disabilities include scarring, fear of flying, double vision and weakened right arm.

Under the Civil Aviation (Aircraft Operators’ Liability) Act (Ch No 292), s 24, the carrier "is liable for damage sustained by reason of ... any personal injury suffered by the passenger resulting from an accident", and by s 27, "the liability of the carrier ... in respect of each passenger, by reason of his injury ... is limited to the sum of K30,000".

Held

(1) General damages should be assessed at K18,000.

(2) The expression "is liable for damage sustained" in the Civil Aviation (Aircraft Liability) Act (Ch No 292), s 24, means "is liable in damages for injury or loss sustained by the passenger".

(3) An award of interest under the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), is not an injury or loss sustained by reason of any personal injury, but rather compensation for being kept out of money for some time, and such interest is not therefore limited by the provisions of the Act.
Saunders v Ansett Industries (1975) 10 SASR 579; 5 ALR 509, followed.

(4) Costs are not an injury or loss sustained by reason of any personal injury, but rather are incurred in persuing the claim therefor, and are not therefore limited by the provisions of the Act.

Cases Cited

Saunders v Ansett Industries (1975) 10 SASR 579; 5 ALR 509.

Trial

This was an action in which the plaintiff claimed damages for personal injuries as a result of a plane crash. Liability having been admitted the hearing was confined to the assessment of damages.

Counsel

R Wood, for the plaintiff.
I Molloy, for the defendant.
Cur adv vult

22 March 1985

BREDMEYER J: Mr Costello was born on 22 February 1923. He was injured in a plane crash on 20 March 1980. Liability is admitted but is limited by the Civil Aviation (Aircraft Operators’ Liability) Act (Ch No 292), s 27, to K30,000. I have to assess damages.

Mr Costello, and Mr Evans a plaintiff in another action, were the only passengers in a charter flight en route to Hoskins. Mr Costello was sitting in the co-pilot’s seat on the starboard side. Through a gap in the cloud he saw a mountain immediately ahead, the pilot pulled the controls back with all his might but the plane crashed into a tree on the starboard wing. The shock of the accident was thus increased for Mr Costello by having seen it coming. Part of his ear was severed, his right eye lid was deeply cut, his shoulder was injured, five ribs were broken as was the sternum and he had burns and other cuts over his face and body. To add to the shock and agony, he was exposed to the rain and cold overnight, the plane was not sighted for some time and rescue not effected until over twenty-four hours later. He was intermittently conscious and unconscious during this period. There was no medical equipment or food on the plane. The long period without medical treatment and rescue and the fear of not knowing that he would be rescued, that he would live or die, meant that the plaintiff in that period suffered much more than a man who suffers similar injuries in a road accident where rescue and medical treatment normally come quickly.

Mr Costello, and his injured employee and co-passenger, Mr Evans, were flown by a Defence Force plane to Lae on 21 March. He was given various intravenous fluids there and on 23 March flown by charter to Port Moresby and from there by Qantas to Sydney. On both flights he was a stretcher patient, on the charter flight accompanied by a nurse and on the Qantas flight by a doctor. On both flights he was accompanied by Mr Evans.

On arrival at Royal North Shore Hospital, Sydney, the plaintiffs injuries were noted as follows:

"(1) There were superficial and partial-thickness burns involving the whole of the patient’s face and the anterior half of his scalp and forehead.

(2) There were deep, partial-thickness burns of the right forearm and the dorsum of the right hand. There were further areas of partial-thickness burns on the upper part of the back and left shoulder region.

(3) There was a traumatic amputation of the lower right ear.

(4) Recently sutured lacerations of the scalp and forehead, each measuring between 3cm and 5cm in length.

(5) There was noted a full-thickness laceration of the right upper eyelid which was oedematous and superficially infected.

X-Rays taken on admission revealed a fracture involving the upper half of the sternum and of the right fifth and sixth ribs posteriorly, and the fourth and fifth ribs anteriorly. There was also a fracture of the neck of the first left rib."

The plaintiff was treated in Royal North Shore Hospital for nearly a month. His resuscitation was continued with various intravenous fluids and blood and his burns and cuts treated. After discharge he returned to work as soon as possible initially spending only an hour or two in the office per day.

In November 1980 the plaintiff was readmitted to the same hospital for reconstructive surgery on his right ear. A cartilage was taken from a rib and grafted onto his ear. The surgeon also revised scars on his forehead and right upper eyelid. The plaintiff was in hospital eleven days. In April 1981 the plaintiff returned to Royal North Shore hospital for a second stage operation for the reconstruction of his right ear. He was in hospital nine days.

The plaintiffs facial scars have all healed quite well although he gets an occasional weeping from the reconstructed ear especially if he lies on it. He also has discomfort when he lies on the ear. The reconstructed ear is a disfigurement more so than the facial scars but the plaintiff is not unduly concerned about it. As he said, he is a grandfather, and therefore not that self conscious about it.

I regarded the plaintiff as a truthful witness not given to exaggeration of his injuries and disabilities. He is a man surrounded by numerous children and grandchildren, supported by a wife of thirty-seven years standing, and holds a number of very important positions in Australia and overseas and from all these relationships he enjoys a confident, jolly, well-adjusted personality. He is not a person with little to do, with little love and support from others and one who continually dwells and thinks of the plane crash and his injuries in a psychologically unhealthy way.

Nevertheless the plaintiff does have some residual discomforts, disabilities and a fear of flying, related to the accident which are compensable. I detect no conflict between the numerous medical reports and the plaintiffs evidence of his discomforts etc, nor between the doctors themselves.

The plaintiff still suffers from a shoulder injury suffered in the accident. It is a partial dislocation of the acromio-clavicular joint. He finds his arm weak and he is restricted in his capacity to play golf and is now limited to nine holes. He complains of numbness and tingling in the right arm extending into the hand and to the ring and little fingers. He has a constant numbness in the right arm of a dull tooth-ache type. The doctors agree that this condition is stable, unlikely to go away, and that surgery is not recommended.

He also has double vision when he looks up to the right but he can drive a car and watch TV. He tires more easily than before and cannot work the long hours he formerly did. This is partly accident related and partly, I think, caused by old age. He flies regularly overseas and throughout Australia in his work and has a fear of flying. He no longer flies beyond Port Moresby in Papua New Guinea and he does not fly in small planes.

I award K18,000 general damages.

Most of the out-of-pocket medical expenses have been agreed. The agreed expenses total K8,833.82.

There are a number of disputed medical items. The first is the air charter Lae/Port Moresby. The charter was shared between the plaintiff and Mr Evans and half the cost of it, $590.66, is claimed for the plaintiff. I consider that expense to have been reasonably incurred. The plaintiff was seriously injured. He was suffering from burns, facial and scalp lacerations and trauma to his upper chest and shoulder. He had five broken ribs. He was not young, being fifty-seven years old. The shock he suffered was increased by being exposed to the cold and the rain and without medical treatment for twenty-four hours awaiting rescue. In Angau Memorial Hospital he was immediately placed on a drip and given a variety of intravenous fluids to resuscitate him. This was continued on arrival at Royal North Shore Hospital in Sydney. It is reasonable to say that his life was in danger in the days immediately after the accident. The plaintiff was a stretcher patient with a medical attendant on the flight Lae to Port Moresby. I regard that expense as reasonable.

Both the plaintiff and Mr Evans then went as stretcher passengers to Sydney on a Qantas flight. The plaintiff claims $880.50 being half the cost of the fare charged by Qantas for the two of them. I think it reasonable for him to have gone to Sydney for treatment. He needed plastic surgery which was not available in Papua New Guinea. His injuries were serious and painful. He was a bed patient in Lae immediately before the flight, a stretcher patient on the flight, and a bed patient in Sydney immediately on arrival. I think it unreasonable to expect him to have gone as an ordinary sit-up passenger. The defendant will have to pay the cost of the stretcher fare $880.50 less the cost of the plaintiffs normal first class fare which was not used. The plaintiff was on a business trip to Papua New Guinea at the time of the accident and had to return to Sydney anyway. That fare was $578 leaving a balance of $302.50.

A Dr Allison from Sydney flew Sydney/Port Moresby to accompany the plaintiff on the return flight Port Moresby/Sydney. A first class return fare $1156 is claimed for him. The plaintiff says he always travels first class on his numerous trips around the world and he would not expect any doctor to travel economy class on his behalf. The defendant argues that the doctor’s accompaniment was not necessary. It is true that the defendant only has to pay expenses reasonably incurred. I consider that the seriousness of the injuries justified the presence of a doctor. The plaintiff is therefore entitled to recover from the defendant sums reasonably incurred for the doctor’s air fares and fees. I consider a reasonable fare would have been economy class on the journey Sydney/Port Moresby. On the return flight to Sydney the doctor would need to have a seat close to the plaintiffs stretcher. This would be a first class seat or an economy seat depending on where the stretcher was located. I have no evidence on its location. I therefore allow only an economy seat for the doctor. No fees were charged by the doctor. I thus allow only economy return fares for the doctor which I fix at $700.

The plaintiff lost the pair of glasses he was wearing in the crash. I allow $99 for their replacement. Another pair was lost in his luggage and falls within his baggage claim.

I allow $242.66 for medical treatment given by Drs Parer and Woo in Lae.

The plaintiff needed some dental treatment after the accident. He lost about one fifth of his upper left central incisor and this was replaced with an "interim" filling, expected to last 15 years. The dentist recommended that this be replaced at "an early date" with a porcelain jacket crown known as a VMK crown for $600. The plaintiff has not accepted that advice today and I think it unlikely that he will ever have it done. I disallow that claim.

I accept the plaintiffs evidence that he was off work for some time. He was in hospital for one month and convalescing for a period thereafter. He went to work initially for an hour or two at a time. The plaintiff was not precise on the date he returned to work full time. I consider he was off work for about two months. Because he is the managing director of a company which he partly owns, he was paid full wages at all times after the accident. But $2,107.02 of his pay came from workers compensation, paid to his company and in turn, in effect, paid to the plaintiff as wages. I allow that sum as part of the damages. He is required to reimburse it to his workers compensation insurer under s 64 of the Workers’ Compensations Act 1926 (NSW).

The plaintiff lost a suitcase of expensive clothes in the accident but, as he was on a charter flight, the luggage was unregistered and his claim is limited by the Civil Aviation (Aircraft Operators’ Liabilities) Act (Ch No 292), s 27, to K30 which I award. I add that sum to the agreed out of pockets to total K8,863.82.

The disputed out of pockets which I have allowed total $4041.84.

The total damages general and special for personal injuries which I have awarded are just less than K30,000 but with interest thereon will exceed the limit K30,000 fixed by the statute. I propose to award interest as I consider that is permitted by the statute. I quote the relevant sections of the Civil Aviation (Aircraft Operators’ Liability) Act:

"s24 Liability of carrier for death or injury

Subject to this Part, where this Part applies to the carriage of a passenger the carrier is liable for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger resulting from an accident that took place on board the aircraft ...

s27 Limitation of liability

(1) Subject to the regulations relating to passenger tickets, the liability of the carrier under this Part in respect of each passenger, by reason of his injury or death, is limited to the sum of K30,000 or such higher sum as specified in the contract of carriage."

The liability of the carrier is limited by s 27 in respect of a passenger to K30,000. I ask, liability for what? The answer is found in s 24, "the carrier is liable for damage sustained by reason of ... any personal injury suffered". The word "damage" there does not mean "damages". I think it means loss or injury suffered by the plaintiff. An award of interest under the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52) is not a loss or injury suffered by reason of the plaintiffs personal injury but rather compensation for being kept out of his money for some time. Interest is not an incident of the plaintiffs cause of action. It is something given to him under the statute mentioned above because his damages, which are limited to K30,000, are paid late. I find myself in this view in the company of a very distinguished judge, Wells J, in Saunders v Ansett Industries (1975) 10 SASR 579. The same reasoning applies to costs. Costs can be added to an award of K30,000 damages. I consider the phrase "is liable for damage sustained" means, "is liable in damages for injury or loss sustained by the passenger". Costs are not a loss or injury sustained by reason of the plaintiffs accident but rather are incurred in pursuing his claim in the court.

I allow interest on the general damages, which I apportion K14,000 pre-judgment and K3,000 post-judgment. I allow interest at eight per cent on K14,000 for half the period between the date of issue of the writ (19 August 1981) and the date of judgment equals K2,006.66.

I allow interest on the special damages at eight per cent from the date of issue of the writ. I consider that all or nearly all of the medical bills were paid by that date and some probably a considerable time before. I realise that the plaintiff paid few of the medical bills himself. Most were paid by his employer but as the plaintiff is part owner of the company and its managing director I consider he will reimburse it with interest for the medical bills paid. I exclude from the special damages which will bear interest the sum awarded as loss of wages as I do not consider that the plaintiff is required to reimburse the workers’ compensation insurer with interest on that sum. Interest on the kina special damages comes to K2,540.96, and on the Australian dollar specials (less the workers’ compensation reimbursement) comes to $554.64.

There will be judgment for the plaintiff for the sums mentioned above and summarised below together with costs. I certify that the case was a suitable one to engage counsel from Sydney, primarily because the plaintiff lives in Sydney and he engaged Sydney solicitors who obtained the medical reports and otherwise prepared the case in Sydney. The plaintiff no doubt had conferences with his solicitors and counsel which would have been expensive and difficult to arrange if he had engaged a Port Moresby counsel. The certificate for overseas counsel is limited to one-half of counsel’s travel expenses in this case, as Mr Wood was also engaged as counsel in the related case of Evans v Talair (WS 877 of 1981) which was heard on the preceding day.

General damages (Kina) K18,000.00
Interest thereon 2,006.66
Special damages (Kina) 8,863.82
Interest thereon 2,540.96
Total Kina K31,411.44
Special damages (Aus dollars) $4,041.84
Interest thereon 554.64
Total Dollars $4,596.48
Liberty to apply.

Judgment accordingly

___________________

Lawyer for the plaintiff: Kirkes.
Lawyer for the defendant: Beresford Love & Co.

[1985] PNGLR 67 - SCR No 3 of 1984; Ex Parte Rowan Callick and Joe Koroma