Kulung v Motor Vehicles Insurance (PNG) Trust [1990] PGNC 69; N930 (7 December 1990)

Unreported National Court Decisions

N930

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 183 OF 1990
JOSEPH NUNTS KULUNG
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
AND
INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

Woods J
21 November 1990
7 December 1990

DAMAGES - Personal Injuries - Particular award of General Damages - Hip injury - Estimated 15% disability - Male aged 32 years Dental orderly - Award of K8,000 General Damages.

ECONOMIC LOSS - Public Servant - Retrenched.

Cases Cited:

Kunjil On V The State 1986 PNGLR 286

Counsel:

P. Kopunye for the Plaintiff

A. Kandakasi for the M.V.I.T.

B. Ninai for the State

7 December 1990

WOODS J: This is a claim for damages for injuries received in a Motor Vehicle Accident which occurred on the 17th of December 1987 on the Okuk Highway between Kudjip and Minj. The Plaintiff was a passenger in a Motor Vehicle Registration No. ZGJ 790 owned by the State and driven by a servant of the State. Because of the driving of another vehicle on the Highway namely an unidentified truck, the driver of the State vehicle swerved the State vehicle off the road and it overturned and the Plaintiff suffered injuries. The two Defendants have agreed on liability as to 50% each so this has come before me as an assessment of the damages.

The Plaintiff is aged about 32 years is married and has 4 children. He was employed by the State as a Dental Orderly with the Dental Division of the Department of Health in the Western Highlands. When the vehicle overturned he states he was struck by a piece of iron on his back and head and received a cut on his head. He was taken to Kudjip Hospital where his head wound was sutured. He went home the next day but because of pain in his back he was sent to Mount Hagen General Hospital. The report from that Hospital refers to multiple soft tissue contusions of the right hip area and abdominal wall and blood in the urine. The urine became clear after three days and he was discharged from the hospital on the 21st of December.

He was examined again at the Mount Hagen General Hospital on the 8th of January and the Doctor noted that he was still having pain in the right hip, but that the movements of the hip were full. Later in April 1988 he was examined again and it was noted that he was still having pain in the right hip joint due to Osteoarthritis. The Doctor noted a possible 10% loss of efficient function of the right hip joint.

After the accident therein a reference to him being out on his work and getting typhoid and being admitted to hospital for sometime because of that. Of course that has nothing to do with the accident but it appears he was not back at work for some periods of time and these periods in hospital have created some confusion in the documentary evidence as to his salary and wage entitlements following the injury.

When he did resume work he was apparently unable to properly fulfill the duties required as a Dental Orderly on Rural circuits and eventually was retained at Head Quarters doing light work.

He saw Dr Kulunga and Dr Gorringe and they noted the continuing problem with his back which limits the level of manual work he can perform. Whilst the report do not indicate excessive disability or injuries and are a bit ambivalent, reference is made to a permanent disability in the use of the back and hip in a range between 10% and 15%. It is quite clear that the Plaintiff is carrying himself carefully with a slight right sided limp.

At the time of the accident Plaintiff was earning a salary of a K127.28 per fortnight. He continued to get that salary after the accident although there is some correspondence about three fortnight’s pay not being paid. However, the year after the accident is a very confusing year with his talk of being in hospital for months with the typhoid. Presumably that shortage of pay is connected with that prolonged hospital stay as there is no evidence of any excessive hospitalisation caused by the accident. Although there are some letters referring to long periods in hospital in early 1988, there is no medical evidence to support that it was from the accident.

There is also reference to some workers compensation payment being made however there are no documents produced to show the basis for this. Presumably this was something to do with the accident.

It would appear that he continued to be paid his normal salary until he was retrenched in March 1990. His evidence is that his retrenchment was finally necessary because he was unfit to do the work he was employed to do. He had been doing light work but infact that Department did not really have a full time light duties job for him. Whilst there was a voluntary aspect in his retrenchment I am satisfied on the evidence that he was forced to accept retrenchment because of his physical disability following the accident.

With reference to past cases I feel that his disability is no where near as serious as the case of Kunjil On vs The State in 1986 PNGLR 286 where in that case disability was estimated at 80%. For general damages I would assess an amount of K8,000.00.

For Economic loss I find no loss up to the date of his retrenchment as I find no evidence that the three fortnights pay missing at some stage in 1988 had anything to do with any hospitalisation or otherwise following from the accident. However since his retrenchment his chances of earning a equivalent amount has been reduced. I am satisfied he would or could have worked till 55 years of age and he has lost part of that security. I must therefore allow for some loss of income from March this year until 55 years of age. I don’t think it is appropriate to estimate future economic loss on the basis of the total income he was receiving at the time of his retrenchment as he was not fully disabled. He is aged 32 years and therefore he would have about 23 years working life ahead of him. As I am not satisfied that the injury is enough to discount all the employment I will therefore allow a figure based on about half his salary at the time of his retrenchment namely about K31 a week. That figure capitalised at 871 gives K27,001. I would discount this by 15% for the contingencies of life and this would reduce it to K22,951.

I allow interest on half of the General Damages from the date of the accident at 4% being an amount of K480.00

The amount paid for Workers Compensation should be taken off the amount awarded and both defendants are entitled to the benefit of that payment.

To Summarise.

General Damages	K8,000
Interest	480
Economic Loss	22,951
Total	K31,431
Less Workers Compensation paid	1,350
Total	K30,081

That is to be apportioned 50% to each Defendant however the second Defendant is entitled to a credit of his portion for the ex Gratia payment aspect of the termination payment namely the figure of K3,369.53 as this figure is clearly a payment for his loss of employment from the State.

I order Judgment against the 1st Defendant the Motor Vehicles Insurance (PNG) Trust in the sum of K15,040.50

I order Judgment against the 2nd Defendant The State in the sum of K11,670.97.

Lawyer for the Plaintiff: P Kopunye

Lawyer for the 1st Defendant: Young & Williams

Lawyer for the State: State Solicitor