N2056

PAPUA NEW GUINEA

[In the National Court of Justice]

W.S. NO. 1314 of 1999

BETWEEN:

Nelson Uro
-Plaintiff-

AND:

The Independent State of Papua New Guinea
-Defendant-

Lae : Injia, J.
2000: December 15
2001: March 9

Civil - Damages - Personal injuries - Fractured right femur - Male Carpenter - General damages - K20,000.00 - Global economic loss - Of wage earner as compared with subsistence farmer - Higher award of damages for global economic loss - K20,000.00.

Cases cited in the judgment:
Kaka Kopun v. The State [1980] PNGLR 567 
Anis Wambia v. State [1980] PNGLR 567
Caedmon Koieba v. MVIT [1984] PNGLR 365
George Kiak v. MVIT [1986] PNGLR 265
Kunjil On v. The State [1986] PNGLR 286
Korrolly & Ors v. MVIT [1991] PNGLR 415
Wie Kuntu v. MVIT [1991] PNGLR 440
John Etape v. MVIT [1992] PNGLR 191
Dami Walpe v. MVIT [1993] PNGLR 434
Rom Tinpul v. Mt. Hagen Golf Club N1648 (1996)

Counsel:
S. Tedor for the plaintiff
No appearance for the defendant

9 March 2001

INJIA, J.: This is an ex parte trial on assessment of damages for personal injuries suffered by the plaintiff following entry of default judgment against the defendant on 17 March, 2000.

On 15/10/98, the plaintiff sustained injuries to his right leg and right hip when the motor vehicle he was driving collided with another vehicle operated by the Department of Civil Aviation of the defendant. The accident occurred at Nadzab Airport, where the plaintiff was driving, in the course of his employment with the University of Technology, Lae (UNITECH).

The accident was caused by the negligent driving of the driver of the said motor vehicle operated by the said department.

Soon after the accident, the plaintiff was taken to the Angau Memorial Hospital where he was admitted. When first seen at the hospital, his injuries were noted to be:

1.	Abrasion on is head, abdomen and pelvis.
	
2.	Fracture of shaft of right femur.	

His abrasions were treated. A skeletal traction was applied on the fracture site followed by reduction and K-nailing of the fractured femur. He was discharged from the hospital on 11/2/98. Healing on the fracture site in the months following was slow. Some eight (8) months later, on 2/7/99, Dr. W.T. Kurapa reviewed the plaintiff’s injury and noted that the healing had not yet been complete. He also noted that there would have to be a further review. He noted that the right leg might have shortening by a few centimetres. More than 1 year later, on 1/8/2000, Dr. John Beaso of the Masolan Medical Service reviewed the plaintiff’s condition and noted:

"I have reviewed and examined Mr. Uro on the 1st August and note the following features:-

1.	He walks with a distinct limp on the right leg which is shorter than the left by four centimetres.
	
2.	A major surgical scar on the lateral aspect of the right thigh is noted. There is evidence of muscle atrophy due to disuse.
	
3.	He has pains in the right hip joint which is a complication arising from the fracture and postural adjustment to accommodate the shortening of the limb.
	
4.	He has a significant pain (Traumatic Arthritis) of the right knee joint resulting in the loss of full flexion of the Knee.
	
"Conclusion:

"Mr. Uro has not been able to return to his occupation as a driver. He has Four children ages ranging from 19 years to 5 years of age and as such has not been able to effectively support his family.

"To date the following conclusions are made:

"1.	The injuries sustained in relations to the head, abdomen and the pelvis have healed and are considered to be minor bearing no loss of body function.
	
2.	He has a permanent shortening of the right leg the right leg due to the fractured femur and therefore in my opinion has a 20% loss of efficient use of the leg.
	
3.	He has a 15% loss of function to the Right Knee joint due to a significant stiffness
.	
4.	He has a 5% loss of function to the Right Hip joint due to pains and stiffness in the joint."
	
The plaintiff was born in 1964 and he comes from Gavuone Village in the Central Province. He is educated up to Grade 8 and has had vocational training and served in various companies in different capacities between 1981 - 1995. In 1996 he joined Unitech as a driver as a temporary employee: see letter from Unitech dated 18/11/99 annexure No. 4 to Notice to Admit to Facts and Authenticity of Documents (Exhibit "D"). Before the accident, he actively played sports, Aussie Rules, Soccer and Rugby League and was involved in other daily activities. After the accident, his mobility and activities has been restricted. His pain and discomfort continues when walking or running long distances for extended time beyond 30 minutes. On 18/11/99, his employment with Unitech was terminated. He now spends most of his time in the house and only goes out to seek medical attention or to go to Church.

The plaintiff is entitled to receive reasonable damages for pain, suffering and loss of amenities of life. There is no fixed mathematical formula for determining general damages for pain, suffering and loss of amenities of life. The Court must do the best it can and assess an amount which will fairly compensate the plaintiff. Counsel for the plaintiff submits that a reasonable award for general damages is K20,000.00. His estimate is based on awards made in Caedmon Koieba v. MVIT [1984] PNGLR 365 and George Kiak v. MVIT [1986] PNGLR 265. In Caedmon Koieba, the plaintiff, a Catholic Priest, suffered a fractured right femur, pinning and bone grafting was done. His permanent disability was 50% disability of right leg. His leg was shortened by 4cm and there was real chance of ostherarthritis developing. He was awarded K19,000 in general damages. In George Kiak, a Magistrate Grade 1, sustained compound fracture of left leg. He required built up shoe and walking stick to help walk. His permanent disability was 50% loss of efficient use of left leg which was almost amputated. He was awarded K29,000.00 in general damages. Quite obviously, this plaintiff’s leg injury and permanent disabilities are not as serious as the plaintiffs Koieba and Kiak. Also see John Etape v. MVIT [1992] 191. The injury appears to have healed well.

His leg has been shortened by 4 cm but his permanent disability in relation to the leg is 20%. In cases where plaintiffs with right leg fracture with shortened legs having disability percentage around 20%, awards are between K5,000 - K10,000. See Anis Wambia v. State [1980] PNGLR 567; Korrolly & Ors v. MVIT [1991] PNGLR 415. But then this present plaintiff suffered multiple injuries as well. In these circumstances, I do not think the sum of K20,000.00 suggested by Mr. Tedor is excessive. I ward the sum of K20,000.00 for general damages. 

The plaintiff also claims economic loss for past and future loss of wage income. His evidence in this respect is found in para. 5 to 11 of his affidavit, which state:

"1.	I was born in 1964. I am married to a woman from Duke of York Islands in the East New Britain Province and we have four (4) children. The eldest of the children is nineteen (19) years old and the youngest in five (5) years old.
	
"2.	I attended Kupiano High School, in the Kupiano District of the Central Province. I left Kupiano High School after completing Grade Eight in 1979, and in 1990, I attended Badili Vocational Training Centre.
	
"3.	After obtaining my Vocational Training Certificate at the end of 1980, I worked in the Hotel Industry with various Hotels in Port Moresby and Rabaul from 1981, to 1983. At the end of 1983, I joined Bougainville Copper Limited where I was employed as a Barman at the Company Nafig Club at Arawa from 1984, to 1986.
	
"4.	At the end of 1986, I moved to Lae in the Morobe Province and worked with two (2) different companies between 1987, and 1995. At the beginning of 1996, I joined the University of Technology where I worked as a driver up to the time when I was terminated because of my injuries.
	
"5.	Since joining the work force after completing my Vocational Training, my change of employment has been due to personal choice on my part and not due to termination by my employers. My employment with the University of Technology was terminated not because for any disciplinary reason, but because of my poor health due to injuries which I suffered in the accident.
	
"6.	The University of Technology terminated my employment on November 18th, 1999. As a driver for the University of Technology, I was receiving a gross wage of K608.54 per fortnight and a nett wage of K435.86 per fortnight. The pay slip on my wages is now before the Court.
	
"7.	I do not think that I have any chance of getting a job in future. The reason for this, is that I am still feeling a lot of pain in my body. From time to time the pain gets worse that I have to get medical treatment."	

He is supported by the affidavit evidence of Waina Tukar and Tuarong Isimel. In documents annexed to the Notice to Admit Facts and Authenticity of documents (Exhibit "D") (payslips dated 7/10/98 document No. 3(a) confirms his fortnightly wage gross income of K608.54 and nett pay of K435.86. In the next payslip dated 22/9/99, document No. 3(b), his gross pay is shown as K200.48 and nett pay is K47.55. Document No. 4 is a letter of termination from Unitech dated 18/11/99, advising of "the cessation of your temporary employment as of 18 November 1999 due to financial constraint" (my emphasis).
 
The plaintiff’s counsel quantifies a sum of K27,118.62 for past loss of income and K249,783.02 for future loss of wages, a total of K276,901.64. He proceeds on the assumption that the plaintiff’s disabilities from the injuries caused his reduction in pay and his eventual termination of employment.

Based on the evidence before me, I find that the plaintiff was a temporary employee with Unitech commencing "at the beginning of 1996". There is no evidence as to his starting fortnightly salary but as at 7/10/98, he was earning K608.54 gross salary. Then there is evidence that after he sustained the injury, he continued to be employed by Unitech. As at 22/9/99, he was earning K200.58 gross per fortnight. The plaintiff says the reduction in pay was because he was not performing effectively because of the injuries. But there is no independent evidence from the defendant or any other source confirming why his salary was reduced from K608.54 to K200.58 because of reduced performance due to his disabilities. 

Then as to the reasons for his termination, there is a conflict between the plaintiff’s version and UNITECH’s version. The plaintiff says he was terminated because of his incapacity to perform whilst Unitech’s version, and the version which I accept, was because of financial constraints faced by UNITECH. 

For these reasons, I am unable to agree with the calculations of his past and future loss of income by his counsel. However, I do accept that the plaintiff had a history of being engaged in paid employment before the accident and his full income earning capacity both in wages and self-employed, has been impaired to some extent as a result of the injury. I accept that the impairment will last for the duration of his working life, which I assess at 24 years. Taking into account possible contingencies, such as finding alternative employment and early death, I am prepared to make a global award for economic loss, both past and present: see Kaka Kopun v. The State [1980] PNGLR 567 at p.564. Precedent shows awards for global economic loss for plaintiffs from a village subsistence economy varying between K3,000.00 - K18,000.00: see Korrolly & 2 Ors v. MVIT [1991] PNGLR	415 (K8,000.00 - K10,000.00); Kaka Kopun, supra (K7,000.00), Kunjil On v. The State [1986] PNGLR 286 (K6,184.00); Wie Kuntu v. MVIT [1991] PNGLR 440 (K8,000.00); Dami Walpe v. MVIT [1993] PNGLR 434 (K3,000.00); Rom Tinpul v. Mt. Hagen Golf Club N1648 (1996) (K18,000.00). 

Any global award for economic loss awarded to an educated person earning wage income will have to be higher than those awarded to village-based plaintiffs. I consider that K20,000.00 would be sufficient global award for past and future economic loss.

I also award K180.00 in special damages for out of pocket expenses.

I award 8% interest on the total damages of K40,180.00 for the date of commencement of proceedings (18/11/99) to the date of judgment (9/3/2001) at say K4,018.00. The Plaintiff shall have judgment for K40,1519.80 plus costs.
_____________________________________________________________________
Lawyer for the plaintiff	:	Sialis Tedor & Associates
Lawyer for the defendant	:	Solicitor General