Sangasib v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 77; [1991] PNGLR 449; N1015 (10 October 1991)

N1015

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

SANGASIB

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Lae
Hinchliffe J

8 October 1991
10 October 1991

DAMAGES - Personal injuries - Particular awards of general damages - Foot injury - Toe fracture - Loss of 10 per cent efficient use of left foot - Community health worker - Enthusiastic sportsman - Award of K6,500 general damages.

The plaintiff, a male community health worker (aged about twenty-five years) and a keen sportsman, claimed damages for personal injuries arising out of a motor vehicle accident. The principal injuries suffered were fractures of the second, third and fourth proximal phalanges involving the joints. There was no permanent physical disability but the plaintiff was unable to play sport or walk normally as the fracture involved the joints as well.

Held

General damages for pain and suffering and loss of amenities should be assessed at K6,500.

Cases Cited

Anis Wambia v The State [1980] PNGLR 567.
Kokonas Kandapak v The State [1980] PNGLR 573.
Koko Kopele v Motor Vehicles Insurance (PNG) Trust [1983] PNGLR 223.
Kawa Oroeala v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645.
Kar v Kirai v The State [1990] PNGLR 563.
Pendagi Ban v The State (N827, 19 March 1990, unreported).
Kuli Gokam v The State (N826, 19 March 1990, unreported).

Statement of Claim

This was an action in which the plaintiff claimed damages for personal injuries suffered in a motor vehicle accident.

Counsel

J Yagi, for the plaintiff.
A Kandakasi, for the defendant.
Cur adv vult

10 October 1991

HINCHLIFFE J: This was an assessment of damages in relation to injuries received by the plaintiff in a motor vehicle accident on 10 July 1986. The incident occurred at a point approximately 30 kilometres from Lae on the Okuk Highway when the motor vehicle in which the plaintiff was travelling as a passenger overturned. The accident was caused as a result of negligent driving of the motor vehicle. Liability has been admitted by the defendant.

Two medical reports have been tendered. The first from the Angau Memorial Hospital dated 16 December 1988, reads as follows:

"Motor vehicle accident on 10/7/86 — he was admitted on the same day ....

He was found to have fractures of the 2nd, 3rd and 4th proximal phalanges. He also sustained a laceration of the scalp over the temporal region. He was treated accordingly and was discharged on 19/7/86.

On reviewing today the wounds have healed completely. There is no physical loss. However he is unable to play football or walk normally as the fracture involved the joints as well.

He has at this point of time lost ten per cent of the efficient use of the left foot.

For your information

L Warangi (Dr)

MBBS

Master of Medicine Surgery

Surgeon."

The second report was from Dr S Davis of the Morobe Medical Centre and dated 14 September 1990. It reads as follows:

"The abovenamed attended on the 11th September, 1990, and was examined with respect to the MVI of 10.7.86. The laceration to the left side scalp has healed well, but he complains of occasional pain in that area.

He was also tender over the sites of his fractures, the proximal phalanges. This causes him pain on walking. An X-ray shows a well healed fracture of the 4th proximal phalanx, and reasonably healed, but poorly alligned (sic) fractures of the proximal phalanges of the 2nd and 3rd toes.

I estimate at 15% functional loss.

Yours faithfully

Dr S Davis MBB, DGO, MRCGP."

Dr Davies also gave evidence in Court and it was unfortunate that he could not give any fresh evidence about the plaintiff as he had not seen him since 11 September last year. I am of the view in cases such as this, that medical examination should be conducted close to the trial date so that the court is informed of the plaintiffs very latest medical condition. Therefore, to a certain extent, in this case the medical information was thirteen months old.

I must be a little wary of Dr Davis’ evidence because he did say that he was not an expert in this area. However, I found him to be an impressive witness who was of considerable assistance to the Court. He stated that the "15% functional loss" referred to in his said report was related to overall loss. In cross-examination he assessed that the efficient loss of the left foot would be 7.5 per cent to 10 per cent. That is, much the same as the assessment of Dr Warangi. Dr Davies also stated in his evidence that it was possible that arthritis could set in at a later date and that the injury was permanent.

The plaintiff gave evidence and I have no doubt at all that he suffered severe pain on the day of the accident and for several weeks thereafter. Since then the pain has become less but even to this day he suffers some pain and it would appear that that will be the situation for the rest of his life.

He cannot remember the actual accident but he remembers waking up in hospital sometime later. There was no evidence as to how long he was unconscious but the accident occurred 30 kilometres from the hospital and he woke up on the same day as the accident. It seems that the time period could be anywhere between half an hour to two to three hours. I can take the matter no further than that.

The plaintiff said that when he woke up he felt pain in his leg and he had a big cut on the left side of his forehead. He said the cuts on his forehead and leg were stitched and three days after that plaster was applied. He stayed in hospital for one and a half weeks and spent most of the time in bed with his leg up. The leg was swollen and it caused pain. He needed pain killers to be able to sleep at night time.

Mr Sangasib went on to say that the pain continued up to and after his discharge from hospital. He used crutches to get about and three weeks after he was discharged the plaster was removed. In examination in chief the plaintiff indicated that the pain has decreased over the time since the accident but after the plaster was removed his leg was weak and it swelled up regularly in the first twelve months after the accident. That of course is not unusual for a fracture in the leg or foot.

Prior to the accident the plaintiff was an enthusiastic sportsman, playing volley ball, basketball and soccer almost everyday and in competition at the weekends. Because of the injury he now does not participate in sport at all.

He now feels pain in the foot if he walks a long distance — 5 to 7 kilometres but it is no problem at work when he is sitting. It seems that he now does more office type work than before the accident because of the injuries he sustained.

The plaintiff did not work for six months and three weeks after the accident. He then worked for five months on a part-time basis before going into full-time. He has been working full-time ever since.

I found the plaintiff to be an honest witness and I accept his account. He clearly suffered severe pain due to the fractures and is still suffering, to a lesser extent, today. As a community health worker it must be a hindrance. As a keen sportsman who is now no longer able to participate it must be utterly frustrating. Especially as he is only about twenty-five years old.

As a guide to assessing proper damages the lawyers presented a number of past cases. Notable ones being Anis Wambia v The State [1980] PNGLR 567; Kokonas Kandapak v The State [1980] PNGLR 573; Koko Kopele v Motor Vehicles Insurance (PNG) Trust [1983] PNGLR 223; Kawa Oroeala v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645; Kar Kirai v The State [1990] PNGLR 563; Pendagi Ban v The State (N827, 19 March 1990, unreported); Kuli Gokam v The State (N826, 19 March 1990, unreported).

I have now read all these cases and even though I have found them to be slightly helpful they certainly have not provided me with an answer. I say that because the said cases relate to leg injuries but not to actual foot and toe fractures. Also of course all cases are different and even if the said cases did refer to toe fractures and the like they would still only be useful guidelines.

I am satisfied that the plaintiff has permanently lost 10 per cent of the efficient use of his left foot. That in itself, to my mind, with the help of the above-mentioned cases, attracts damages in the region of K4,000. In addition to that of course is the pain and suffering experienced by the plaintiff and also the loss of future enjoyment in his sporting activities. I am of the view that a fair and reasonable figure for pain, suffering and loss of amenities is K6,500.

SPECIAL DAMAGES

I would allow special damages in the sum of K50 for the report, K3 for an X-ray and K20 for food and drinks whilst the plaintiff was in hospital.

I assess interest at 8 per cent from the issue of the writ to the date of trial.

Therefore I order that there be judgment for the plaintiff in the sum of K7,431 made up as follows:

Pain suffering and loss of amenities of life K6,500

Special damages 73

Interest 858

K7,431

I further order that the defendant is to pay the plaintiffs taxed costs on the National Court scale.

Judgment accordingly

________________

Lawyers for the plaintiff: Kirriwom & Co.
Lawyers for the defendant: Young & Williams.