Duckham v Regan [1968] PGSC 3 (1 March 1968)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

BETWEEN

ROSS DUCKHAM
Plantifff

AND

DENNIS JAMES REGAN
Defendant

Coram: Frost, J.

1968: February 22, 23, March 1.

PORT MORESBY

JUDGMENT

This is an action brought by the plaintiff against the defendant for damages for personal injuries sustained by him when on the 22^nd November, 1964 at Boroko a motor car being driven by the defendant collided with the plaintiff who was driving a Honda motor vehicle.

When the collision occurred the motor car came from the right hand side, struck the plaintiff's right leg and thigh causing him to be thrown from the cycle. In fact the injuries sustained by him were confined to the right leg. Immediately after the accident he was unable to stand and was taken to hospital. There were cuts and abrasions upon his ankle and hip. The whole right thigh was bruised and his hip was punctured causing considerable loss of blood. At the hospital his ankle and hip were stitched and an X-Ray taken. Further treatment was delayed until the swelling of the leg went down and two or three days later when it was found that the malleolus of the right ankle was fractured the ankle was sat in plaster. The plaintiff was in hospital for a week and was then allowed to go home where he remained in bed for a further week. He was away from work for a fornight only. However it was necessary for him to attend every few days at the hospital for his ankle to be dressed which was done through a cut made in the plaster. Apparently union was not achieved, so that on the 15^th January, the plaintiff was again admitted to hospital when, in operation under general anaesthetics, Dr. Larkin inserted a pin through the bone. For this operation he was in hospital for two days only, then returning to work. For several days after the accident he was in considerable pain and the operation on the bone in January was also painful, giving him a throbbing sensation for five or six days and although after that as he said "you knew it was there" it was thereafter not really painful. His ankle was kept in plaster until about March 1965, when he went on leave. For a few days after the plaster was removed his ankle was painful, particularly when he was getting into shoes and putting weight upon it. As I later refer to, the plaintiff was a footballer and he was advised by his doctors not to play football that year. When he was on leave in Australia in March, he had noticed that when he got up in the morning his ankle was inclined to be stiff, but it had not given much trouble during the year whilst he had been following his normal activities. He did not really test his ankle until about Christmas of 1965. When he went for a run his right knee came up apparently for no reason, fluid started to build up and it took time to go down again. He attended Mr. Larking and X-Rays were taken which apparently revealed nothing. In January 1966 he was referred to Mr. Smyth a surgeon in Port Moresby who decided to drain the knee. This was done by inserting a needle into the knee under a local anaesthetic. The procedure was painful and caused his knee to become sore. The plaintiff had to give up any idea of playing football.

His right leg is affected both in the ankle and also the knee. If he walks any long distance or runs, the knee starts to swell and the back of the calf of the right leg aches. After about half an hour the knee comes up and the plaintiff is unable to persist with the exercise. The right lower leg is somewhat disfigured with various veins which the plaintiff said appeared after the accident.

In his employment at the Department of Posts and Telegraphs the plaintiff's work is mostly clerical, and the injury to his leg does not affect him in his work. In his daily activities he can walk about. But he cannot walk long distances, he cannot run and when, for example, he romps with his young children, this causes his knee to sell. He used to play squash, but he finds he cannot do this now. He tried to play golf, but after about three holes he gives up possibly because he finds it frustrating, but also because his knee comes up and then he gets tired in the back of the leg.

Because of the absence of Dr. Larking from the Territory, who managed his case, the only medial evidence the plaintiff was able to call was Dr. Mulherin who examined the plaintiff on the 21^st November, 1967.

Upon examination, he found in the right knee there was moderate effusion. The movements were normal, the ligaments and patells were normal. There was a certain amount of grating on movement suggestive of early arthritic changes. There were dilated varicose veins in the right leg. In the right ankle, movement was normal except for mild limitation of eversion. There was a significant widening of the tibula fibula joint of the upper portion of the ankle joint. There was a certain amount of anaesthesia over the inner malleolus or inside of the ankle joint. There was a scar typical of that left by internal screwing. The Dr. then expressed an opinion as to the future of these injuries. In his opinion, there was definite distortion of the anatomy of the right ankle. Apparently there had been failure to obtain union after the fracture; it is the worst bone in the body to knit, hence a screw was inserted to keep the bone in position. Whilst union had left a good relatives position of the inferior surfaces of the tibula and fibula the gap between these bones was widened. It is well recognised that his widening of the joint will cause arthritic changes to occur. In the right knee, Dr. Mulherin considered the plaintiff would have mild to moderate arthritis in the future. It was difficult to say, but it could occur when he was 45 years of age. He considered the effusion or fluid in the knee joint a problem. Provided the plaintiff does not engage in strenuous activities it would probably be limited to chronic effusion and puffiness around the joint, but if he did exercise or twist it, it certainly will flare up. The varicose veine have only a cosmetic significance. The facture of the ankle was, of course, caused in the collision, and so far as the knee is concerned, assuming there had been no injury before, then the plaintiff's present condition of the right knee would be attributable to the injury received in the collision. At the time of the injury there was marked bruising and swelling of the leg which caused effusion. In cross-examination, the Dr. considered that in attempting to train for football at the end of 1965, the plaintiff's knee came up; this was due both to the exercise or possibly a twist, but the knee would not have come up to such an extent unless there had been a pre-existing condition of effusion such as had occurred immediately after the accident.

Thus the Dr. considered that the arthritic changes in the knee and the tendence to swelling upon exercises thereafterwards was in the absence of any other injury due to the accident, As the plaintiff swore that he had formerly no such injury, it is a reasonable finding that the condition of the plaintiff's right knee is due to the accident.

So far as the future is concerned, the plaintiff will certainly get osteo-arthritis in the right ankle which will cause a nagging sort of pain and stiffness from time to time at a reasonably early age. So far as his knee is concerned, especially having regard to the fact that the plaintiff was a big man, osteo-arthritis will occur probably ten years before he might otherwise have got it. In any event, movement would aggravate this injury. The condition of both joints will never get so bad as to require an operation, but intermittent pain in both joints will require drugs such as aspirin from time to time, and the plaintiff will also be required to adjust his movements within the limit of pain. The Dr. considers that after walking for any considerable distance the knee will swell. Certainly the plaintiff will be unable to play football or otherwise vigorous sports because of the strain on the knee joint. He will probably be unable to play golf.

In assessing the plaintiff's damages, I am to take into account pain and suffering past and future, loss of amenities of lice and any economic loss. The plaintiff's position in the Department of Posts and Telegraphs is that of a Telecommunication Inspector, the duties being partly clerical and partly technical. No claim was made that the injuries he suffered in the accident would affect him in his work. However, the plaintiff claims economic loss because the accident meant the end of his professional football career, and at this stage, I propose to consider this heading of economic loss. The plaintiff was at the time of the accident nearly 26 years old, having been born in December 1930. He excelled at football and basketball. When he left school he played rugby at Canberra and then in Sydney, but after going to South Australia in 1958 he took up Australian Rules where he played reserve grade for Sturt. In 1960 he represented South Australia against Victoria in that grade. In 1961 when he had arrived in Port Moresby, he played Australian Rules football and won the Cleland Medal. He also played Rugby league with the D.C.A. team, representing the reserves for Papua seconds against New Guinea. He represented Papua in basketball against North Queensland. In 1962 he played Rugby league and represented Papua in the firsts against New Guinea and North Queensland, and he also played for the Territory against Cairns. In 1963 because of some injury in his eye he played very little football. His treatment for his eye continued through most of 1964 but he was able to resume rugby in the final round when he played for D.C.A both in that round and for the finale. At the time of the accident he was also playing basketball.

In 1964 for the first time in Port Moresby payments were commenced to be made to footballers in the Rugby League. For playing in the final and the last round the plaintiff received £50.0.0. Just prior to the accident, he had been approached and offered £200.0.0 to play for the D.C.A. team in 1965, which naturally the plaintiff accepted. However, the accident has brought his rugby career to an end. His claim is that he has lost earnings as a professional footballer. Evidence was given by Mr. J.B. Mowen who is the treasurer for the Papuan Rugby League as to the amounts of money which have been paid to rugby players over recent years. In 1965 and 1966, players of talent were receiving from £100.0.0 to £200.0.0 per season. In 1967, as at present, players were offered as registration fee from $200.00 to $400.00 together with a payment for each match of $30.00 for a win and $10.00 for a loss. Mr. Mowen has known the plaintiff since his arrival in the Territory, and considered him a top flight player who would have attracted the higher rates of pay as a player. However Mr. Mowen thought that he could not be expected to play after he was thirty years of age, nor could he expect coaching after he attained that age because the practice in Port Moresby is to engage playing coaches. Still, he might have made money as a referee - $10.00 a match in A Grade and $6.00 a match in B Grade. At this stage I should refer to some evidence by Mr. Mowen that the plaintiff had been unable to play football early in 1964 because of an injury to a blood vessel of his leg. However, Mr. White making no objection, after the evidence was concluded, the plaintiff was recalled and he gave evidence that the blood vessel injury was to his left leg and it occurred in 1963. Heat treatment was effective to cure the condition which was caused at football.

I accept Mr. Mowen's evidence that the plaintiff, as a natural and talented footballer, did lose some income as professional footballer. However, he had not played a full season since 1962. He has suffered the blood vessel injury to his left leg, and of courage Rugby League football is a vigorous sport in which there is a real risk of injury which might cut short a player's career. Although the plaintiff thought that he could play until he was 31 or 32, even if the escaped injury it seems to me that 1968 or 1969 would have been his least season. I consider that he has lost $400.00 which he would have received in 1965, but having regard to the risk of injury and the fact that the plaintiff was approaching the end of his football career, I consider that the total sum to be allowed under this head should be $1000.00.

Mr. Pratt did submit a further claim in that the plaintiff was now unfit to conduct a milk run business in a Sydney suburb which he had in mind conducting after he had saved sufficient capital. But as it is problematical whether the plaintiff will be able to save a sufficient sum to purchase any such milk run, and in the absence of any evidence whatever as to the profits to be obtained from such as business, this claim must fail. The plaintiff did say in giving evidence from his present position to some cut of doors pursuit which he could carry out, seems to me to be more a loss of amenity than any economic loss.

I propose now to consider the sum to be awarded as general damages for pain and suffering past and future loss of amenities as a result of the accident. The petitioner was a severe pain for a few days after the accident; there was the painful operation in January 1965 when Dr. Larkin inserted the pin in the ankle and again January 1966 when Dr. Smyth drained his knee. Whilst the ankle was in plaster and after it was removed from time to time the ankle was sore. In the future when osteo-arthritis develops in his right ankle as Dr. Mulherin considers it will, he will be subject to some pain, suffering and limitation of movement. This will occur also in his right knee earlier than it otherwise would occur. However the nagging pain and limitation of movements from time to time should not incur him in medical expenses otherwise than for the provision of common drugs.

The loss of amenity he suffered since the accident has been his inability to play football and basketball which left a gap in his life. Plainly he was very good at these ball games which gave him great pleasure. He was not interested in tennis or swimming. He was not sufficiently good at golf to want to continue with it and he is unable to play squash. For the future he will be unable to do any exercise which will involve walking any ling distance or train upon his right knee.

It might be said that the plaintiff might as so many footballers do at the end of a football career, have ceased to be interested in active sports. However I feel that the plaintiff is a man who would have taken up some game such as squash, tennis or gold. For the future, unless he takes up swimming which he is not fond of or some mild social tennis it is difficult to say what sports he could play. Moreover the inability to exercise, particularly for a man who is engaged mostly in clerical duties, is a handicap particularly for health reasons. For a young athletic man keenly interested in sport, to be practically prevented from taking further part in it, is a severe loss of amenity. It is also a disability that inn the one leg he should be liable to osteo-arthritis in two joints, the ankle joint and the knee joint which, whilst not incapacitating will affect his from time to time to some extent in his daily life end from time to time after he reaches early middle age.

In assessing general damages, I agree with Mr. White's submission that I should bear in mind, "The invariable direction to juries in fatal accident cases was that they must not attempt to give damages t the full amount of a perfect compensation for the pecuniary injury, but must take a reasonable view of the case, and give what they consider, under all the circumstances, a fair compensation" Rowley v. London and North Western Railway Company (^[1]). Likewise in personal injury cases a judge is to give what is in all the circumstances, a fair compensation. Watson v. Fowles (^[2]).

Taking all these factors into account, I consider that the sum of $4,300.00 is a proper head of general damages.

The special damages to which the plaintiff is entitled and which Dr. White conceded is the sum of $410.53 so I award the plaintiff $5710.53 damages with costs to be taxed.

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^[1] [1852] EngR 1037; L.R. 8 Exch. 221, per Brett J. at p.231.
^[2] (1967) 3. W.L.R. 1364, per Lord Denning at p.1368.