Tambi v State [1989] PGNC 100; [1988-89] PNGLR 648; N780 (30 October 1989)

N780

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TAMBI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen
Woods J
12 July 1989
30 October 1989

DAMAGES - Personal injuries - Particular awards of general damages - Leg injury - Fractured femur requiring pinning - Muscle wasting - Osteoarthritis - Loss of 35 per cent efficient use of leg - Driver and village gardener - Male aged 32 (36 at trial).

The plaintiff, a male aged 32 (36 at trial) employed as a driver and also working on his village garden, claimed damages for personal injuries suffered in a motor vehicle accident. The plaintiff suffered a fractured femur which required pinning and was slow to heal, resulting in muscle wasting, osteoarthritic changes and a 35 per cent loss of the efficient use of the leg. The plaintiff was unable to continue his employment as a driver and was severely restricted in his gardening activities.

Held

General damages for pain and suffering and loss of amenities should be assessed at K15,000.

Cases Cited

Anis Wambia v The Independent State of Papua New Guinea [1980] PNGLR 567.
Kuriti v The Independent State of Papua New Guinea [1988-89] PNGLR 633.
Pep v Yamba [1987] PNGLR 485.

Statement of Claim

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

Counsel

D L O’Connor, for the plaintiff.
B V L Ninai, for the defendant.
Cur adv vult

30 October 1989

WOODS J: On 4 April 1985, the plaintiff was struck by a motor vehicle whilst walking beside the Highway between Laiagam and Wabag. The motor vehicle was owned by the defendant.

Liability is not in issue, so this case is for assessment of damages.

Following the accident, the plaintiff was admitted to the Immanuel Lutheran Health Centre at Wapenamanda where he was found to have a fracture of the right femur at its mid-shaft. He was transferred to Mt Hagen Hospital for open reduction with the insertion of a K-nail. He was returned to Wapenamanda Medical Centre for hospitalisation for three months. Following his discharge, examination showed some osteoarthritic change with some wasting. Functional loss was assessed then at 10 per cent. The nail was removed in May 1986 and Dr Jacobs at the Mt Hagen Hospital noted there was a stiffness of the knee and this may lead to a 25 per cent reduction in the efficient use of the right lower limb.

More recently the plaintiff has been examined by Dr Kulunga who states that the plaintiffs quadriceps are flabby and weak on his right leg and he will develop osteoarthritis of the right hip, mildly to moderately. His conclusion is that the fracture has not been healing as rapidly and as well as anticipated after the open reduction and he estimated a 35 per cent permanent disability in the effective use of the leg.

The plaintiff is aged 36 years. At the time of the accident, he was employed as a driver earning K70 per fortnight. He also had a garden in his village which was used to produce vegetables for sale. I have no doubt that in his village this was other work that he needed to do to participate fully in village life and to assume his full responsibilities. He lost his employment as a driver, he was hospitalised for some time and it is clear that he will be unable to resume employment as a driver and he would not be able to handle loads.

He lost his employment as a driver and I must assume that he could have kept that job for some years. Therefore he has initially lost K35 per week from the date of the accident until today. That is 237 weeks at K35 per week. I must allow then for the fact that he could have continued work as a driver for many years. I will allow for future loss of employment as a driver for 15 years until he would be aged just over 50 years.

With respect to any economic loss from gardening, I will allow for some loss — as it is an important part of a village man’s living standards under the heading of economic loss. I realise that gardening for own consumption and for sale is a joint effort of the men and the women, the women do most of the regular gardening work but the man does most of the heavier work of clearing new ground and digging the ditches for drainage, etc, and building fences. I therefore allow for past loss of K2 per week for 237 weeks, and 20 years for future economic loss. I allow for this as it will extend well past the age when he would cease regular modern employment.

For general damages for pain and suffering and loss of amenities, having regard to the fact that I have already allowed for participation in home gardening, I would allow K15,000.

In summary, therefore, the award is:

Loss of employment to date, 237 weeks at K35 per week	K8,295.00
Loss from gardening to date, 237 weeks at K2 per week	474.00
Future loss of employment, 15 years at K35 per week on the 3 per cent scale and less 20 per cent for contingencies	17,696.00
Future loss of gardening, 20 years at K2 per week on the 3 per cent scale and less 10 per cent for contingencies	1,419.00
General damages	15,000.00
Interest on past economic loss, K8,769 at 4 per cent for 237 weeks	1,598.65
Interest on past general damages, 8 per cent on K5,000 from the date of the writ to date	537.00
Total	K45,019.65

Judgment for K45,019.65

Judgment accordingly

__________________

Lawyer for the plaintiff: D L O’Connor.
Lawyer for the defendant: State Solicitor.