Rundle v Motor Vehicles Insurance (PNG) Trust [1989] PGNC 93; [1988-89] PNGLR 618; N691 (31 March 1989)

N691

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

RUNDLE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani
Bredmeyer J

19-21 October 1988
31 March 1989

NEGLIGENCE - Road accident cases - Disabled vehicle under tow - Towing driver requested to wait for steering lock to be freed - Request not heeded - Passenger in towed vehicle injured - Driver of towing vehicle negligent.

DAMAGES - Measure of - Personal injuries - Loss of earning capacity - Receipt of unemployment benefits - Benefits to be deducted.

DAMAGES - Personal injuries - Particular awards of general damages - Fractures of hip and pelvis - Pneumonia with lung collapse - Deterioration of pre-accident diabetic condition - Some permanent disability for bending etc - Welder - Male aged 27 (34 at trial) - Award of K30,000 general damages.

The plaintiff, a male aged 27 (34 at trial) and employed as a welder, claimed damages for personal injuries arising out of a motor vehicle accident. The plaintiffs vehicle had broken down and was being towed by a fellow employee who had been told not to start towing until the plaintiff had released the steering lock and who ignored that request, driving off too fast without looking back, as a result of which the plaintiff who had boarded the vehicle was injured when the vehicle ran down an embankment and overturned. The plaintiff suffered fractures of the pelvis and hip and whilst hospitalised developed pneumonia with a lung collapse. A pre-existing diabetic condition was exacerbated and continued to deteriorate. The plaintiff was left with permanent disabilities restricting his movement and causing continuing pain in the hips and lower back and legs with prolonged activity. The plaintiff had returned to work doing some welding work and undertaking sales and management activities and associated businesses.

Held

(1) In the circumstances the driver of the towing truck was fully liable for the accident.

(2) In assessing damages for economic loss, unemployment benefits received by the plaintiff are to be deducted.

Redding v Lee; Evans v Muller [1983] HCA 16; (1983) 151 CLR 117; 57 ALJR 393; 47 ALR 241, followed.

(3) Damages for pain and suffering and loss of amenities should be assessed at K30,000.

Cases Cited

Caswell v National Parks Board [1987] PNGLR 458.
Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611.
Kama Pupti v Kudjip [1986] PNGLR 283.
Make Kewe v Kudjip [1986] PNGLR 279.
Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294.
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436.
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.
Redding v Lee; Evans v Muller [1983] HCA 16; (1983) 151 CLR 117; 57 ALJR 393; 47 ALR 241.
Rundle v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 181.
Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44.
Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20.

Statement of Claim

This was an action in which the plaintiff sought damages for personal injuries suffered in a motor vehicle accident. Liability and quantum were in dispute.

Counsel

I Molloy, for the plaintiff.
D Ryan, for the defendant.
Cur adv vult

31 March 1989

BREDMEYER J: This is an action brought in negligence for personal injuries sustained in a motor vehicle accident which occurred in Goroka on 14 September 1981. Liability and quantum of damages are in dispute. Previous litigation has occurred between these parties. In an earlier action between the same parties, the defendant took a preliminary objection that the plaintiff had failed to give notice of intention to make a claim within the prescribed time limits as required by s 54(6) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295). In a ruling dated 21 August 1986 and now published in [1986] PNGLR 181, Kapi Dep CJ gave an interpretation of that sub-section, and in a later ruling given on 29 April 1987 (Rundle v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 44), he applied that interpretation to the facts of the case and ruled that the plaintiff had failed to give notice of intention to claim within the time limit. The plaintiff appealed against both those rulings and they were heard together and in a decision handed down on 4 March 1988 (Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [988] PNGLR 20) the Supreme Court upheld the plaintiffs contention and allowed him a further 14 days to give notice of intention to claim to the Trust under s 54(6) of the Act. The terms of the orders made by the Supreme Court in that case were later varied, after hearing argument, on 5 April 1988.

At the outset of trial before me, Mr Ryan, for the defendant, sought leave to amend the defence. After hearing arguments, I granted leave to amend the defence by the addition of pars 7-15 but refused leave in respect of pars 16-22. The ruling I gave at that time is not recorded here. Following the amendment, Mr Ryan argued, pursuant to the amended clauses which I had allowed, that by virtue of the earlier proceeding the plaintiff was estopped and precluded from maintaining his claim in this action. After hearing arguments, I then gave a ruling on this submission and rejected it for reasons which are not recorded in this judgment. In the course of the argument relating to those two preliminary rulings, Mr Ryan conceded that at the material time Collins & Leahy Pty Ltd was the owner of the Toyota utility referred to in the statement of claim and that at that time a third party insurance policy with the defendant was in force in relation to that vehicle.

The plaintiff gave evidence that on 14 September 1981 he was driving his old Mazda vehicle from Goroka Quarry where he worked towards Goroka and just outside Goroka his vehicle stopped. He thought it was an electrical fault. At that time a Toyota utility came along and he recognised the driver of it as a Papuan man who was a mechanic with Asaro Motors which is a company in the Collins & Leahy group. He knew this man as he had some dealings with him before but did not know his name at that time. He asked for a tow. The plaintiff said this Papuan man spoke broken English but he was able to communicate to him in Pidgin. The plaintiff said he had been working in Goroka for nine months at that time and that he was fluent in Pidgin. He asked for a tow and he said that he told the Papuan man to wait until he was ready to go as he had a hard or tricky steering lock. He said the man said "OK" and then much to his surprise he had no sooner sat down in the seat with the key in the ignition when the utility moved off. The plaintiff said he hardly got the door closed and, although he had the key in the lock, he did not have a chance to turn the key. He then struggled desperately to turn the key to unlock the steering but the towing utility moved off, accelerated steadily and had gone about 25 yards and had reached the speed of about 25 to 30 miles an hour. He said that the driver of the utility did not look back and he was frantically trying to signal him with his arms. His horn did not work and at no time did the towing driver look back. Although the road was straight after about 25 yards the camber of the road caused his Mazda to veer off the road to the left and there the vehicle overturned and rolled down a gully. As a result of that accident, the plaintiff suffered two broken hips.

The plaintiff alleges that the driver of the utility, who was Hane Badu, was negligent in that he failed to heed the plaintiffs advice that he had a hard steering lock and to wait until he had freed the lock before beginning the towing, that he drove off at too fast a speed, and he failed to look around to check that the plaintiff was managing his vehicle alright. I was impressed by the plaintiff and I thought him a truthful witness. The plaintiff was, and is, a practising Seventh Day Adventist and although I am aware that practising Christians of whatever denomination can tell lies, nevertheless in my experience many practising Christians of the Seventh Day Adventist Church do tell the truth. I have observed the plaintiff in the witness box over several days. I observed his way of giving evidence and I found nothing in that which would cause me to disbelieve his truthfulness. When I weigh up the probabilities of his evidence and the detailed arguments given to me against it by the defendant’s counsel, I remain convinced that the plaintiffs version of events is probable and that supports my view that his evidence is truthful. In this case the defendant failed to call Hane Badu and/or the passenger whom the plaintiff said was in the utility, although his evidence may have been of lesser significance. In many motor vehicle accident cases where the trial comes seven, eight or nine years after the accident, the defendant is disadvantaged with witnesses. Unless the matter had been investigated carefully and thoroughly at the time, eyewitnesses to the accident have disappeared. National people move around the country a lot; they may change their jobs or, in some cases their names, and often the defendant is at a disadvantage. In this case, the defendant was unable to call his key witness for a different reason. Mr Badu was a mechanic working for the Collins & Leahy group of companies in Goroka and he is still employed by that group. However, shortly prior to the date of this trial he took off on his annual holidays and went with a church group to Los Angeles. His employer and his insurer were unable to find a contact address for him and were unable to bring him back in time for the trial. No application for adjournment was made to call him. I have some idea of what Mr Badu was expected to say from defence counsel’s cross-examination of the plaintiff, but without any evidence from him I find no good reason to disbelieve the plaintiff.

I am therefore satisfied on the balance of probabilities that Mr Badu was negligent in the towing of the vehicle. His vehicle was insured with the Trust and under s 54(1) of the Motor Vehicles (Third Party Insurance) Act (Ch No 295), the plaintiff is required to sue the Trust and the Trust is liable for that negligence. I consider that there is no contributory negligence on the part of the plaintiff. He said that the horn did not work and, in some contexts, the failure to have a working horn would amount to contributory negligence, but in this case his vehicle had broken down on the road and he said he thought it was due to an electrical fault. I therefore infer from that evidence that something was amiss with the electrical system. Evidence was given that the horn operates on a different circuit to the starter motor and that, although a car may not start through an electrical fault, the horn will work. On the other hand, the electrical fault can be so major that it can destroy both or all electrical circuits. In this case, I infer from the evidence that the electrical fault which stopped the vehicle also stopped the horn working. I consider that the plaintiff was not guilty of contributory negligence in failing to have a working horn or in any other way.

PAIN AND SUFFERING AND LOSS OF AMENITIES

The plaintiff was born on 27 May 1954 and was aged 27 at the time of the accident and is now aged 34. The accident occurred on Monday, 14 September 1981 at about 3 pm. He was unconscious and woke up about three hours later and found himself in the Goroka Base Hospital. He was in that hospital for seven days. He suffered fractures of the pelvis and hip, in particular a fracture of the left acetabulum and a fracture of the right pubic rami. He also developed pneumonia in the right lower lobe of the lung and suffered a lung collapse. He says when he woke up in hospital he was sore all over and felt pain in both the hips and pelvis. His shoulder was also very stiff. He had a cut across his back, his face was sore and he had grazes all over his face. He had difficulty breathing, yet was not turned over by the nursing staff. On the Saturday, he said he felt a lot worse. The pain in his hips and pelvis was still there. He had great difficulty in breathing and also had a temperature. On the Saturday night, tubes were put down his throat and nose and an attempt was made to clear his lungs by suction. He said it was not successful. At that time he was on oxygen. On the Sunday, Dr Smith, who was the doctor in charge of him, took him into surgery and cleared the lungs by a bronchoscopy under local anaesthetic which eased his breathing. He felt better. Whilst in hospital, he said his diabetes was out of control. Prior to the accident, he had been a diabetic for some years and he says his condition was stable. However, in the hospital he was left to eat what he thought he should eat. There was no dietitian there and, although at one stage Dr Smith did call in another doctor to take his blood sugar levels, they did not tell him the result or regulate his insulin intake. On Sunday, 20 September, he flew to Cairns as a medical emergency on a charter arranged by Collins & Leahy Pty Ltd and was admitted to the Cairns Base Hospital on 21 September 1981.

At Cairns he was put in traction and given four-hourly injections of Pethedine, neither of which occurred in Goroka. His pneumonia was treated by bronchoscopy and suction as well as antibiotics and physiotherapy. At Cairns his blood sugar levels were monitored and the nurses gave him insulin injections. He was also put on a strict diet. Despite this treatment, he said his blood sugar levels were very erratic. After about three weeks in Cairns Base Hospital, he was discharged on crutches and travelled to Auckland where he underwent treatment as an outpatient at Auckland Hospital. He was to remain on crutches until mid-January 1982.

The plaintiff attended the Diabetes Clinic at Auckland Hospital on a regular basis and was under the care of Dr John Baker. He regulated his diet and his insulin doses and also referred him to physiotherapy for his back and hips. The plaintiff says that, prior to the accident, his diabetes was very stable and he used to control it by three-monthly visits to the Diabetes Clinic and by giving himself two injections a day of not more than 50 units of insulin as a total. He used to check his own blood sugar level by pricking his finger and taking a sample of the blood. In a report dated 11 March 1982, Dr Baker said that his recovery from the accident had been delayed somewhat by the deterioration of his diabetic control but that he was now fit and well and ready for work. According to the plaintiff, that was an over-optimistic and an incorrect assessment of his condition. He said he felt pain in his lower back and left hip and was unable to do the bending, lifting, and carrying required in his work as a welder. He attempted to play some sports in 1982. He attempted to play basketball but was unsuccessful because his left hip could not take the turns and the jumping caused problems in the joints. He tried to play soccer, which he had played before the accident, but his back and hip created problems. He had little power in his left leg. He tried to take up running, which again he had done pre-accident, but the effort was not worth the discomfort in his back. He said that since 1982 he had not been well enough to play any sports.

He said that, in 1982, he found it impossible to stabilise his diabetes to its pre-accident level. He said after the accident he treated himself with insulin and took his own blood sample two or three times a week but the dosage increased dramatically. He said that he was getting massive swings of high and low sugars and that was the position when he returned to Australia in 1982 and indeed since then. In 1982, he switched to three injections a day instead of two and the total was more than 50 units of insulin per day. He now takes 86 units per day over two injections. In late 1982, he went to St Vincent’s Hospital, Sydney, for treatment about his diabetes and was seen by a registrar there and later by a specialist, Dr Donald Chisholm, who reported as follows:

"After an intensive education programme and considerable efforts to make appropriate adjustments to the insulin dosage Mr Rundle’s diabetic control was substantially improved. However it seemed that the effort required to produce good metabolic control was greater than it had been prior to the accident in 1981.

It is difficult to know to what extent the motor vehicle accident contributed to the difficulties in diabetic control. However stress and infection (which apparently resulted from the chest injuries in the accident) are well known to cause difficulties in metabolic control from someone with diabetes. When such an event occurs relatively early in the course of diabetes (as it did in this case) there may be a long term change in the diabetic state so that good metabolic control is more difficult to achieve. It is difficult to judge how much the motor vehicle accident contributed to the difficulties in Mr Rundle’s diabetes management but considering the history we obtained I do think it made a substantial contribution."

The plaintiff said that he still continues to suffer from the effects of these diabetic highs and lows. They make him feel extremely tired, they give him mood swings between feeling "high" and then low and pessimistic. If he gets them badly he feels nauseated. Although he still suffers from those highs and lows now, and was hospitalised for his diabetes in October 1985, they are not as severe as in 1982, the year after the accident. The highs and lows are aggravated by stress and by infection such as the flu.

In January 1983, the plaintiff consulted a Dr Geoffrey Heise of Thornleigh complaining of back pain which was aggravated by driving a vehicle during the course of his work. The doctor examined him and prescribed anti-inflammatory drugs and advised him to undertake a course of back exercises. The plaintiff was examined by a Sydney surgeon, Dr Taylor, in June 1985, March 1986 and June 1988. In June 1985, the doctor found, inter alia, an 8 per cent disability in the left leg due to the condition of the hip joint and thought that while it was possible he might develop degenerative changes in his hip joint due to the fracture, on the other hand in the next 12 to 18 months his back symptoms should subside. In March 1986, the doctor reported that the plaintiff was still having trouble with his left hip and it was difficult for him to stand for a long period or to walk for long distances. The doctor said he had a 12 per cent disability in his left leg due to the condition of the hip joint, and a 12 per cent disability in his right leg due to the condition of the ankle joint. The doctor said that he was unfit for work which imposed a lot of strain on his hip and ankle and which involved prolonged standing, bending and stooping. In June 1988, Dr Taylor reported as follows:

"I feel that Mr Rundle apart from pain in his right hip has recovered from his injuries. His right hip pain has only developed over the last 12 months. When I saw him in 1986 I felt that he had some residual disability in his left hip but he seems to have recovered from the condition in his left hip. He has quite acute pain in his right hip giving him a 15% disability in his right leg due to the condition of the hip joint. I feel he should consult an orthopaedic surgeon who will be able to treat him and I would be able to arrange such a consultation if he does not do it himself through his family doctor. He needs some fairly urgent treatment to his right hip. Possibly deep hydrocortisone injections into the capsule of the hip joint might help him if the condition is only due to capsulitis but it is possible that he may be developing early degenerative changes in the right hip joint. The prognosis for his right hip joint must be guarded."

The plaintiff did go to see an orthopaedic surgeon, a Dr Anderson in Brisbane, but his report has not been tendered to me. At the defendant’s request, he was examined by another orthopaedic surgeon, Dr Lahz, who examined him on 11 August 1986 and reported as follows:

"2. Mr Rundle’s history up till now is already known to you. His main complaint now is of lumbar pain which is made worse by lifting and similar activity. He is also complaining of some weakness in the left hip. Mr Rundle’s neck symptoms are now of a comparatively minor nature and are not causing him any significant disability. Mr Rundle told me that over the last few months he had been getting a lot of pain in the fore part of his right foot.

3. Examination of the cervical spine revealed no significant abnormality, x-rays also being normal. It is therefore clear that whatever injury was sustained in this area is clearing up well and is now causing only minor, if any, residual disability which will persist for only another six months. There will be no permanent disability from this injury.

4. Examination of the right hip revealed no significant disability. The fracture of the floor of the acetabulum has healed well without any significant aftermath. No complications will develop from this injury in the future.

5. Examination of Mr Rundle’s lumbar spine revealed no significant abnormality. Movements were not associated with any definite pain and both straight leg raising tests were normal. The origin of Mr Rundle’s back ache is not clear but it is not arising from any significant aftermath from any past injury to the lumbar spine.

6. Examination of the right ankle was normal and any injury to this area is recovered.

7. Examination of the forefoot revealed very definite signs of arthritis in the joints between the second and third toes and the forefoot. X-rays show cystic formation of the bones comprising these joints. The origin of this change is somewhat uncertain. The most likely cause is rheumatoid arthritis. This condition is causing Mr Rundle significant disability. However, I would be unable to relate it to the accident in question."

The plaintiff was seen by Sr Joseph, a surgeon at the Port Moresby General Hospital in August 1986, and just before the trial in October 1988. She presented a detailed written report of her first examination and a detailed oral report of her second examination. She is an eminently qualified and experienced surgeon who saw the plaintiff for longer periods than did Dr Lahz. I have also had the benefit of hearing her views tested by cross-examination and I can say that she impressed me very much and where the reports of the two doctors differ, I prefer the evidence of Sr Joseph. In her evidence to me, referring to her examination of October 1988, she said:

"He was currently complaining of pain in the mid back, both hips, right shoulder and right foot. Since the previous examination he has been put on rheumatic tablets Faldiene and Naprosin for bone and joint pains. The pain in his right hip he said was new and had come on gradually over the previous year. The right foot pain was reasonably controlled by Naprosin unless he had been walking a long distance.

On examination.

Back

Flexion was slightly improved compared to last time, but extension and lateral rotation were much reduced and painful. Rotation was still painless.

Left hip

Flexion was now reduced to 85%. Rotation was reduced to ... (word missed). Other movements were as they were last time.

Right hip

On moving the hip there was crepitus. Flexion was reduced to 80% and was painful. All other movements were uniformly reduced, moderately not severely.

Right shoulder

There was now crepitus which had not been there before and external rotation was reduced.

Right foot

Tender to touch but the movements were improved moderately on 1986.

Neck

Virtually unchanged and pain free.

In summary, there had been some deterioration in back right hip and right shoulder. The neck was the same. The right foot was somewhat improved as expected because he was taking the tablets but was still tender to touch."

The doctor said in 1986 that his back problem is "a nagging, painful nuisance for which there is really no effective treatment, so that although it will not prevent him working it will cause him life-long discomfort, which will vary in severity from time to time". She said to me that his back will eventually become more stiff than it is now and that no surgery is possible to remedy it. He would just have to learn to live with it. She said that in the future his neck will be alright but the shoulder will probably give him pain from time to time but will not be a major disability. She said that the prognosis for his foot will depend on the progress of the cystic disease and she could not tell what that would do. She thought it possible that one or both hips would eventually need to be replaced by surgery. She said it was quite likely in 20 years time. Recent x-rays had shown some arthritis in the right hip, so it was possible that he would need two hip replacements. She felt all complaints were related to the accident except the cystic disease in the feet.

I do not accept Sr Joseph’s evidence about possible future hip replacements. Her evidence on that was not positive enough to satisfy me; also there is no evidence on that from Dr Anderson, the Brisbane orthopaedic surgeon whose report was not tendered, nor from Dr Lahz whose report I have quoted.

Sr Joseph’s report is a medical report of the plaintiffs own woes. In his own terms, prolonged sitting at his office desk causes discomfort. He needs to get up and walk around a bit. Prolonged sitting in a car produces an ache in the lower back. He mows the lawn but suffers back ache thereafter. If he holds the baby for any length of time, he gets back ache and, if he carries the baby up a set of steps, he gets a pain in the right hip. His pain is reasonably controlled by the two drugs mentioned. He is not able to play sports which he played pre-accident, and the accident has made his diabetic condition worse in a way which I have already described.

On the range of damages, I have been referred to two cases by the plaintiff. Kama Pupti v Kudjip [1986] PNGLR 283 and Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294, and two cases by the defendant: Make Kewe v Kudjip [1986] PNGLR 279 and Caswell v National Parks Board [1987] PNGLR 458. I have also referred myself to the award of K24,000 given for pain and suffering and loss of amenities in Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, which was not upset on appeal, and to a very recent case Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611 of Hinchliffe J. I consider that Mr Rundle’s pain and suffering and loss of amenities are not as great as those of Pinzger — although that award of K24,000, granted in 1983, would be more now in 1989, nor as bad as Pangis Toea or Jones. I consider that Mr Rundle’s pain and suffering and disabilities are not as serious as those of Andrew Caswell although that award seems on the low side. I consider that Mr Rundle’s pain and suffering and loss of amenities may be comparable to that of Make Kewe but the judgment in that case is very brief so I hesitate to rely strongly on that comparison. Unlike the plaintiffs I have mentioned, there is a special factor in this case which is that, in addition to the pain and suffering and physical disabilities, the plaintiff has experienced a deterioration in his diabetic condition. I accept that that deterioration is related to the trauma of the accident and I propose to include in the award a fair sum for that extra factor. Weighing up all relevant factors, I consider that a fair award for pain and suffering and loss of amenities past and present is K30,000.

ECONOMIC LOSS

The plaintiff came to Papua New Guinea in January 1981 and said he intended to stay three to five years as a minimum. He was on a written contract contained in a letter which is now lost and it is not clear from the evidence what was the length of term in that contract. However, as has been related, he was terminated from that contract in June 1981 and then was offered another job by the same employer and at the time of the accident was working as a temporary with the intention that he be given the contract when a work permit for the position was approved. I consider that it was likely that the plaintiff would have stayed three years in Papua New Guinea, that is, to 31 December 1983. I do not accept the plaintiffs evidence that he may have stayed five years or longer. It is true that the plaintiff said that he liked living in Papua New Guinea; nevertheless, as I have said, his work at the time of the accident was as a temporary and a number of eventualities could have occurred which could have terminated his intended stay. For example, the work permit may not have been granted, or he or his wife may have got sick, or he may have suffered a particularly bad break and enter or robbery, or his wife may have been raped, or a close relative in New Zealand may have fallen ill and he felt the need to return to be of assistance. All of these events would have terminated his employment. Had he been in Papua New Guinea for a longer period than nine months at the time of the accident, and/or had he had a written contract, I might have been able to find that his stay would extend to five years or longer, but on the evidence before me I think it is fair to say that his contract would have terminated on 31 December 1983. I further find that he would have remained a temporary on K1,300 a month until say 31 December 1981 when his work permit would have been approved and his contract signed. In other words, I think he would have been on contract from 1 January 1982 until 31 December 1983.

Working as a temporary, the plaintiff was on K1,300 per month gross with no deduction made for taxation and he had to find his own accommodation. He said that when given a contract the salary was to be somewhere between K20,000 and K25,000 per year and that he was to be given a two-bedroom furnished flat in West Goroka owned by the company rent free and with free electricity and free gas for cooking. Daniel Leahy, the Managing Director of the employer company, said that that estimate was a bit on the high side and that K20,000 per annum would have been the appropriate contract salary. He confirmed that the terms of employment would have included a fully furnished flat. I consider that K20,000 per annum is an appropriate salary for the contract which he would have got. I note from a wages book that when he was working for the employer from 5 February to June 1981 as the supervisor of a welding workshop, his monthly salary was K1,091, giving an annual salary of K13,092. He was averaging about K450 per month extra as overtime which on an annual basis comes to K5,400. I consider therefore that a contract salary of K20,000 per annum was an attractive salary to him representing a substantial increase on his salary for the first half of 1981.

The plaintiff has called evidence from a valuer of the value of a fully furnished two-bedroomed flat in Goroka in 1981, 1982, 1983 and later years. The plaintiffs counsel has also estimated the value of free electricity and gas at K1,000 per annum. The value of accommodation has been allowed before, an example being Pinzger v Bougainville Copper Ltd [1983] PNGLR 436 at 441, in a part of the judgment which was not taken on appeal. For the appellate decision, see [1985] PNGLR 160. It is an item which needs to be looked at carefully because I accept the reasoning of the defendant’s counsel that a rent-free house in Papua New Guinea is not exactly like wages because it is not cash in the hand. If an Australian working in Papua New Guinea is given a rent-free house valued at K350 per week and is injured, becomes unemployed as a result of those injuries, and has to go to Australia to live, the true value of his loss is not K350 per week. If, for example, he owns a house in Australia and rents it out at say $150 per week whilst he enjoys the K350 per week rent-free house in Papua New Guinea, he is really making $150 per week less expenses from the rent-free house provided by his employer. If, for example, the expenses of renting out his Australian house such as, rates and taxes payable by the landlord, commission on rent collection and repairs, come to say $50 per week, his gain through being provided the rent-free house in Papua New Guinea is only $100 per week, and hence, if through injury, he loses that gain his loss is $100 per week only. Alternatively, if the Australian provided with the same rent-free house in Papua New Guinea is injured here and returns to live in Australia and is incapacitated from work but does not own a house in Australia, the loss of the housing benefit for him in Papua New Guinea is the cost of renting a house in Australia; and as rents in Australia are usually much lower than in Papua New Guinea the loss is likely to be much less than the rental value of the house provided in Papua New Guinea. Mr Rundle owned a house in New Zealand which he was renting out and after his accident he returned to Australia to live and to work. I do not know if he rented or purchased a house in Australia but the correct way to analyse his house loss is to assume that he rented an equivalent house on his return to Australia. Doing the best I can, I estimate that he could rent an equivalent two-bedroomed flat in Australia including free electricity and gas from 1 January 1982 to 30 June 1982 at the dollar equivalent of K90 per week. I assume that from 30 June 1982 to 31 December 1983 he could have rented the equivalent flat, again with the free electricity and gas, at the dollar equivalent of K95 a week.

The plaintiff said that part of the new contract which he was promised included a rent-free, two-bedroomed, fully furnished flat. He also said that when he worked for the first six months of the year with Ace Welding, he enjoyed a fully furnished flat rent free. It was put to him in cross-examination that this was not so, that a nominal rent was deducted from his wages for that flat. The plaintiff said that he was unaware of that. I consider that this cross-examination succeeded. The defendant’s counsel produced to Mr Rundle, and has tendered to me, the wages book for 1980 and 1981 of all the expatriate employees in the Collins & Leahy Group and it is clear from this that all of them had a sum for rent deducted from their wages. In the case of the most senior staff, it was K65 per month and in Mr Rundle’s case it was K60 per month. I therefore propose to deduct from the rental value of the accommodation which I have mention above the sum of K15 per week.

The plaintiffs employment history after the injury is as follows. From the date of the accident until March 1982, he was seeking treatment and unemployed. From March to 30 June 1982, he worked as a welder for a company called Lochtech in Sydney and was paid $10,000 gross for that work. No tax was deducted and he submitted no tax returns whereby he would have had to pay tax on some of that income. From 5 July 1982 until 11 August 1983, he worked as a travelling sales representative for Bohler Steels Pty Ltd in New South Wales selling steel and welding equipment. He received income from that work of $14,595 to 30 June 1983, and from 1 July to 11 August 1983, when he resigned, $2,358.45 gross or $1,446 net. Thereafter he was unemployed for a time but from 24 October 1983 until 31 December 1983 and beyond he received unemployment benefits of $150 per week. In January 1984, he commenced his own business called Age Engineering in Ballina, a coastal town in northern New South Wales. He was in partnership there with his brother-in-law who was a fitter. The plaintiff worked in that business from January 1984 until November 1985 when the business closed. He was then unemployed until he moved to Brisbane in January 1986. There he commenced work of an administrative type with a plastic manufacturer called Vacuform Pty Ltd. He now owns a 25 per cent interest in that business. When he commenced with that company on 14 January 1986, his salary was $350 net per week (that is, after tax). In 1987 his salary was increased to $450 gross per week plus, for part of that year, a share of the profits. In May 1987, his salary increased to $660 gross per week plus a share of the profits. His total income for the Australian financial year to 30 June 1988 from his business was about $42,000 gross. He also has the benefit of a company vehicle.

Counsel for the plaintiff has argued that I should not deduct from damages amounts received as unemployment benefits but I think it is proper to do so. That is the Australian position: see Evans v Muller [1983] HCA 16; (1983) 151 CLR 117 and it is also the position favoured by Luntz, Assessment of Damages (2nd ed), par 8.5.05. As I see it, why should the plaintiff receive a windfall of damages for loss of wages from the defendant as well as unemployment benefits from the government which are meant to be a partial substitute for wages? If both were recovered, I doubt if many plaintiffs would repay the unemployment benefits to the government.

There was a dispute between the parties as to whether the plaintiff worked for Cass Engineering between 1 July 1982 and 30 November 1983 and thereby earned $5,944.80 net. Note that during most of that period the plaintiff was working for Bohler Steels. The defendant contends that whilst working for Bohler Steels the plaintiff was moonlighting, earning extra money, by working for Cass Engineering. The defendant’s contention is based on a letter written by the plaintiffs lawyer, Kirkes, to Young & Williams on 9 December 1985 giving the particulars of the plaintiffs claim for economic loss. This letter was put to the plaintiff in cross-examination and he denied that he had given those instructions to Kirkes and that he had ever worked for Cass Engineering. He said that he had no direct contact with Mr Diacos, the writer of that letter, or with anyone from Kirkes, as he was directly instructing Sydney lawyers who were in turn instructing Kirkes. He said that his wife worked for Cass Engineering during that period as a short-hand typist. I have decided to believe the plaintiff on this matter: it may be that a group certificate from the plaintiffs wife got mixed up with the plaintiffs certificates.

The plaintiffs duty is to mitigate his loss, he must always do what is reasonable to mitigate his loss. I accept the plaintiffs evidence that in March 1982, although not feeling fully fit, he decided to try and work at his old trade. His evidence is that he worked for Lochtech for three or four months working eight hours a day and sometimes one or two hours overtime. He said that he was suffering some pain and discomfort on doing the bending, lifting and stooping associated with welding. I also accept the medical evidence that he is unfit for that kind of work. The plaintiff thereupon decided to try lighter work and that is when he got the job as a travelling sales representative for Bohler Steels, a job where I consider that his knowledge of steels and his expertise as a welder would have made him a better salesman. Being medical unfit for welding work, which is a heavy trade, I consider it was reasonable for the plaintiff to seek employment in some related field which did not require heavy physical work, for example in the sales job which he did get or as a supervisor welder. I note that although the plaintiff was only a young man when he went to Papua New Guinea, the job for which he was recruited was that of a supervisor of a welding workshop. In the first six months in 1981, he did not do any actual welding himself. I note, too, that his next job as manager of Goroka Quarries also was a supervisor’s job not really requiring his welding skills and I further note that it was better paid than his previous job as a welding foreman.

I consider that it was unreasonable for the plaintiff to have undertaken his own welding business, Age Engineering, in Ballina in 1984 and 1985. The plaintiff has a duty to mitigate his loss. If he is partially incapacitated, as this plaintiff was, he has the duty to get the best paid job available for a man of his skills and his admittedly reduced abilities. Mr Rundle should therefore have continued on in the sales job with Bohler, or another sales representative job where his knowledge of metals and welding was an advantage or sought a welding foreman’s job as he had in Papua New Guinea, which did not require any welding, or some manager’s job as he had before at Goroka Quarries and as he has had since approximately 1986 with Vacuform. I know the plaintiff experienced pain and discomfort in the driving around involved in his sales representative job, but he was not incapacitated for that work. Likewise he was not then, and is not now, incapacitated from office work.

On his own evidence, the plaintiff was not fit for welding work, yet he chose a job of that type. Moreover, instead of mitigating the loss by working as a salaried welder, he chose to be self employed, to start a new business with all the risks that that entailed. As it was, his business failed and I do not think its failure was entirely or largely due to his physical disabilities. I do not believe the plaintiffs evidence that the business had great potential. If it had, why the small returns shown on the tax returns, the drawing of unemployment benefits for part of the time, and why not employ a fit welder to do the work, such as crawling into the confined space of an engine room of a fishing trawler, that he was unable to do?

There is no evidence before me that in 1984 he tried to get a light-duty job of the kind I have mentioned and failed. To get a sum for economic loss after January 1984, the plaintiff would have had to lead evidence that as a skilled welder he could have earned say $25,000 per annum but as a sales representative, manager, or foreman he could only earn say $20,000 per annum thereby showing a loss of $5,000 per annum. This plaintiff, I consider, had the technical skills and the personality to get a job as a sales representative, foreman or manager in this period and, in order to reduce the loss payable by the defendant, should have done so.

I propose to award the plaintiff loss of salary and other benefits to 31 December 1983 but, for the reasons given, no further sum for economic loss in 1984 and 1985. I propose to award no sum for economic loss for 1986 to the date of judgment as since 1986 the plaintiff has found his feet and is making a good living with Vacuform. It is true that the plaintiff is not fit enough to do welding work but there is no evidence before me that he could have earned more as a welder in Australia where he chose to live in 1986 to the present, than he did earn in the non-welding jobs he has had. Likewise I propose to award no sum for loss of earning capacity in the future for the same reason that there is no evidence that he is earning less now, or is likely to earn less in the future, as a factory manager than he could earn as a fit welder.

The details of the plaintiffs loss to 31 December 1983, when I consider his contract would have expired, are as follows. From the date of the accident, 14 September 1981 to 31 December 1981, is three-and-a-half months at K1,300 per month, which equals a loss of K4,550. At that time, there were no accommodation benefits.

From 1 January 1982 to 30 June 1982 is six months at K20,000 per annum gross, which equals about K7,000 net after tax. In addition, he enjoyed the benefit of six months accommodation, electricity etc which I have previously assessed at K75 per week which equals K1,950, which gives a total figure of what he would have earned as K8,950. In fact, he earned K7,140 so his loss for that period is K1,810.

From 30 June 1982 to 31 December 1983 is 18 months at K14,000 per annum net, which equals K21,000. In addition, there is the value of accommodation, electricity, etc: 78 weeks at K80 per week, which equals K6,240 and a total of K27,240. During that 18 months he earned K10,400 from Bohler Steels to 30 June 1983 plus K1,090 net from the same company from 1 July 1983 to 11 August 1983. He also received nine weeks unemployment benefit of $150 per week from 24 October 1983 to 31 December 1983, which equals $1,350 or K1,018. The total of those sums earned is K12,508 and the total loss for that period is K14,742.

The total losses for the three periods mentioned are K21,092.

OUT-OF-POCKET EXPENSES

A list of out-of-pocket expenses has been tendered to me. I delete from it the following items: Cairns Hospital $2,350, Goroka Hospital K116 and charter airfares Port Moresby to Cairns, K5,055 which were paid for by Collins & Leahy. To this list of expenses the plaintiff claims a further sum of approximately $1,000 for physiotherapy services to his back and hip incurred in Brisbane in 1987. No receipts were produced for this sum and no good reason given why the receipts were not available. I will allow $500 only under this heading. The out-of-pocket expenses total $2,490.

The plaintiff is at present taking two drugs, Faldeine and Naprosin, at a cost of $11 per fortnight and K11 per month respectively. He commenced taking these drugs in 1988 and was prescribed them by a general practitioner, Dr Johnson. It is hard to estimate how long he will need to keep taking these or some equivalent drugs as his condition caused by the accident may improve and he seems not to have taken drugs in the first six years after the accident. Also, the continued taking of the drugs may produce undesirable side effects or he may decide to fight the pain by other means such as exercises and the like. I propose to allow $4,000 for future medical expenses. The allowed out-of-pocket expenses and the future medical expenses total $6,490. It is possible to grant a judgment in a foreign currency, nevertheless as the sum is small and to prevent unnecessary arguments, I propose to convert it at an exchange rate shown in the newspaper this week to K4,492.

INTEREST

The general principle as set out in the headnote of Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 at 161 is that interest on damages for pain and suffering and loss of amenities should be awarded at the appropriate rate from the date of service of the writ to the date of trial. But as was pointed out at 174 of that judgment, there may be special circumstances why the interest should run from an earlier date. In this case, I think that there are special circumstances. In an earlier action between the same parties, the plaintiff issued and served a writ on 3 November 1983 claiming damages arising out of this accident. That writ would have been the writ before me except that the plaintiff failed to give prior notice to the Trust as required by s 54 of the Motor Vehicles (Third Party Insurance) Act (Ch No 295). As a result of the decision in Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20, the plaintiff was allowed a further 14 days in which to give notice of intention to claim to the Trust. He did this but as the notice had to precede issue of the writ, the writ was not issued until after the notice. I consider that the justice of this issue favours the plaintiff in that he gave notice of his claim to the Trust in November 1983 and from then on the case was being litigated, initially on legal objections being raised by the defendant, and now on the merits. I consider that in those special circumstances the plaintiff should be allowed interest from the date of issue of that former writ which was 3 November 1983. Interest will thus run on the awarded damages for pain and suffering and loss of amenities of K30,000 from 3 November 1983 to 31 March 1989 at 8 per cent, which equals K13,000.

The Supreme Court in Pinzger (in [1985] PNGLR 160 at 161) also decided that interest on special damages (including loss of wages) should be awarded from the date of the accident to the date of the trial at half of the appropriate rate. I thus award interest on K21,092 from 14 September 1981 to 31 March 1989 at 4 per cent, which equals K6,361.

The total award is as follows:

Pain and suffering and loss of amenities K30,000

Economic loss K21,092

Out-of-pocket expenses and future medical expenses K4,492

Interest K19,361

Total K74,945

I award this sum to the plaintiff and also grant him his costs. I certify the case as a suitable one to engage overseas counsel not because of the complexities of the issues of liability and damages but because the plaintiff lives in Australia, most of his medical reports are from Australia, and he has engaged Australian as well as local lawyers. In those circumstances, it was not unreasonable to engage a Brisbane barrister.

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Lawyers for the plaintiff. Kirkes.
Lawyers for the defendant: Young & Williams.