N618

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

PETER AMINI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani
King AJ

16 September 1987
18 September 1987

DAMAGES - Personal injuries - Particular awards of general damages - Abdominal injuries - Removal of spleen - Chronic pain - Chance of future complications - Male police constable - Aged 27 (34 at trial) - Award of K18,000 general damages - K12,000 allocated for calculation of interest on past award.

The plaintiff, a police constable aged 27 (34 at trial) was injured in a motor vehicle accident and suffered abdominal and low back injuries; his spleen was surgically removed leaving a large scar; his continuing disabilities included chronic pain requiring pain killers and the risk of infections and other conditions associated with the loss of a spleen; he has had to restrict his sporting and domestic activities and accept a transfer to lighter duties in the police force.

Held:

(1) General damages for pain and suffering and loss of amenities should be assessed at K18,000.

(2) For the purpose of awarding interest the sum of K12,000 should be allocated to past general damages.

Cases Cited

The following cases are cited in the judgment:

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.
Pumbu v Tenken and the State of PNG (unreported, 5 September 1985, Los J).

Trial

This was an action in which the plaintiff sought to recover damages for personal injuries suffered as a result of a motor vehicle accident and in which liability was admitted.

Counsel:

D L O’Connor, for the plaintiff.
J Puringi, for the defendant.
Cur adv vult

18 September 1987

KING AJ.: This matter came before the Court in Mt Hagen on 16 September 1986 for assessment of damages only and all the evidence was taken on that day. At the conclusion of addresses I reserved my decision.

The matter arises out of a motor vehicle accident which occurred on 25 April 1980 on the Wau/Bulolo road near Gabensis village. Peter Amini (the plaintiff) who was then and still is a constable of the Royal Papua New Guinea Constabulary was travelling along that road as a passenger in a motor vehicle registered number ZGB-256 which was owned by the defendant and being driven by First Constable Yakela Loi. The driver lost control of the vehicle which overturned, according to the plaintiff some six or seven times.

The plaintiff gave evidence of being rendered unconscious in the accident and of becoming aware that he was lying on the bitumen roadway, presumably having been thrown out of the vehicle. He was taken to the Angau Hospital and admitted. He said he felt pain in his left leg and the left side of his lower back. He gave evidence that whilst in hospital an operation was performed on his abdomen, which he understood involved the removal of his spleen. Following that his abdomen was sore, he had difficulty eating and continued to experience pain in the left hip and left lower back which interfered with his sleep. When discharged from hospital he needed the assistance of his wife in walking.

He said that he has continued to have pain and discomfort in his left hip and lower back; that he took pain killers for some time and occasionally takes Aspros; that as a result of the loss of his spleen he was advised to take a weekly dose of chloroquine which he does every Monday; that he has had to restrict his sporting and domestic activities by reason of the pain he suffers and also that he was transferred to lighter duties in his employment, initially to the prosecution section but more recently to the public complaints section, by reason of his pain. None of this evidence was discredited or indeed seriously challenged and I accept it. However, it is not, in my view, to be overestimated. The plaintiff is now 34 and an active sporting life would not in the normal course have been expected to last much longer although he may well have enjoyed social sports. Moreover since his accident he and his wife have had two natural children and have adopted two, bringing the number of his children to six. That would have restricted him in any event and he did not complain of any difficulty in attending to his children, playing with them etc, by reason of his injuries. Finally, whilst his transfer to other duties on his return to work undoubtedly suited his post-accident condition, it constituted something of a promotion bringing with it more pay.

The medical evidence in the plaintiffs case comprised the reports, admitted by consent, of Dr Beavis dated 20 June 1985 and Dr Kulunga dated 2 October 1986 which were respectively exhibits A and B. They make it clear that the plaintiff was hospitalised following the accident; that his spleen was surgically removed leaving a large abdominal scar; that he suffers pain about the left pelvis (though x-rays show no abnormality); that such pain is to be regarded as chronic; and that by reason of the loss of his spleen and the necessary ingestion of chloroquine he is at added risk of infection, anaemia, malaria and eye problems.

I regard this medical evidence as completely supportive of the plaintiffs own evidence but again I do not think undue weight is to be given to the risks of complications in the future. The plaintiff knows of the risks. They are medically well recognised. If, therefore, the plaintiff acts with reasonable common sense he will consult his doctor from time to time and one would expect any of the complications which might arise to be detected in their early stages and dealt with. To my mind the case is one in which the plaintiffs general damages should be increased somewhat for the chance of these complications but no more.

No claim in respect of wage loss was made. The evidence disclosed that whilst off work the plaintiff was paid his ordinary wages. A claim for loss of earning capacity was made on the basis that if the plaintiff lost his job as a policeman he would be limited on the open labour market as regards other employment. That is no doubt true but the plaintiff is now of about 13 years seniority in the police force and the risk of his losing his job for reasons other than his own misconduct or perhaps further injury must be slight. I do not think it appropriate to make any significant allowance for diminished earning capacity. Again, this head of claim can be adequately reflected in a somewhat increased figure for general damages.

Out of pocket expenses were agreed in the sum of K863.20 relating to the Angau Hospital in Lae and proved in any case by the account which was admitted as exhibit C. The only other head of special damage raised was the cost of pain killing tablets in the past and Aspros from time to time. No expenditure figures were proved and no specific allowance is therefore justified but once more a loading to the award of general damages, in this instance very small, will in my opinion do justice to the plaintiff.

During counsels’ addresses I asked each of them what they thought the range for general damages was and for assistance on the question of interest on past general damages. Mr O’Connor, for the plaintiff, put the range as K15,000-20,000 and referred me to the unreported decision in Pumbu v Tenken and the State of PNG (unreported, 5 September 1985, Los J) for two purposes. First, he submitted that case, like the present, involved abdominal injuries and disabilities in respect of which K38,000 general damages were awarded. He conceded that case was worse than the present and said it was to be regarded as roughly twice as bad: hence his range for general damages in this case. Secondly, he relied on the case as authority for the proposition that interest on past general damages should be awarded at the rate of 4 per cent per annum from the date of injury to the date of judgment: see p 7 of the reasons of Los J where his Honour cites and follows the decision of the Supreme Court in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Mr Puringi, for the defendants, put the range for general damages as K12,000-18,000 and whilst reminding me that the question of interest was discretionary, did not dispute that it would be proper for me to follow the approach of Los J in Pumbu’s case.

In my opinion a proper figure for general damages taking into account the added questions of possible future complications, loss of earning capacity and minor periodical expense (past and future) for tablets is K18,000. As to interest, in my view it is not merely proper that I follow Los J but mandatory that I do so. I think most of the plaintiffs pain, distress and discomfort must lie in the past and be associated in particular with his periods of hospitalisation and post hospital convalescence. Therefore I allocate K12,000 of the general damages just awarded to the past. Interest on that figure at 4 per cent per annum to the present time (about 7.4 years) is K3,552 which in my discretion I shall round off at K3,500.

To the foregoing figures is to be added the sum of K863.20 by way of out of pocket expenses which remains unpaid and so does not attract interest. There will be a verdict and judgment for the plaintiff against the defendants in the sum of K22,363.20 including interest to date. I order the defendants to pay the plaintiffs costs.

Verdict and judgment accordingly

__________________________

Lawyer for the plaintiff: D L O’Connor.
Lawyer for the defendants: J Puringi.