Yosuwe v Behekona [1971-72] PNGLR 459 (21 January 1972)

[1971-72] PNGLR 459

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

LEEMBA YOSUWE

V.

KUMREN BEHEKONA AND ANOTHER

Goroka & Port Moresby
Kelly J

18 November 1971
21 January 1972

DAMAGES - Personal injury - Paraplegia - Urinary tract infection - Likelihood of chronic renal disease and renal failure - Loss of amenities and earning capacity - Lost capacity not fully exploited before injury - Provision for future needs - Method of calculation of damages - Assessment of $22,500 general damages.

Although there is no obligation on a trial judge to divide up the total amount of his award into separate items, a court is not justified in the ordinary case of a wage- or salary-earning man or woman in refraining from making the fullest analysis which it can make on the evidence before it of the various components of damage, from working out the likely wage loss as part of the working out of future employment prospects and loss of earning capacity and from detailed examination of any other factor in damages which is capable of any degree of precision in assessment.

Dicta of Jacobs J.A. in Kirkpatrick v. Oliviera, [1971] 1 N.S.W.L.R. 321, applied; Mitchell v. Mulholland (No. 2), [1972] 1 Q.B. 65; Steward v. Steward (1970), 92 W.N. (N.S.W.) 801, referred to.

In assessing damages for personal injuries the injured person is to be compensated for the loss of earning capacity rather than for the loss of wages which he might be expected to earn, but for his injury, and it does not matter that the injured person may not have fully exploited his lost capacity before injury.

Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1968] HCA 9; (1968), 41 A.L.J.R. 327; Faulkner v. Keffalinos (1970), 45 A.L.J.R. 80, and Dodd v. Weeks (1970), 16 F.L.R. 205, referred to.

Held:

accordingly:

(1) &##160; &#160t in t in the case of an injured person whor to his injury had the capacity to earn $7rn $7.50 per week despite the fact that for considerable periods he earned much less, a fair assessment of pre-accident earning capacity would be $7.50; and

(2) Thaa as baglobal sum $22,500 was fair compensation under all the circumstances.

Teubner v. Humble [1963] HCA 11; (1963), 108 C.L.R. 491; Watson v. Powles, [1968] 1 Q.B. 596; Ward v. James, [1966] 1 Q.B. 273; Rowley v. London & North Western Railway Co. [1852] EngR 1037; (1873), L.R. 8 Exch. 221; Steward v. Steward (1970), 92 W.N. (N.S.W.) 801; Kirkpatrick v. Oliviera, [1971] 1 N.S.W.L.R. 321; Mitchell v. Mulholland (No. 2), [1972] 1 Q.B. 65; Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1968] HCA 9; (1968), 41 A.L.J.R. 327; Faulkner v. Keffalinos (1970), 45 A.L.J.R. 80; Dodd v. Weeks (1970) 16 F.L.R. 205.

Assessment of Damages.

The plaintiff issued a writ seeking damages for personal injuries sustained in an accident on 3rd May, 1970. The defendants failed to deliver a defence, and judgment was given for the plaintiff for damages to be assessed.

Counsel:

Hoath, for the plaintiff.
Aoae, for the defendants.
Cur. adv. vult.

21 January 1972

KELLY J: The plaf ciff claims damages for personal injuries suffered on 3rd May, 1970, when he was a passenger iotor vehiclehicle owned by the second-named defendant and driven by the first-named defendant. The defendants having made default in delivering a defence, judgment was given for the plaintiff for damages to be assessed and it is that assessment which now falls for determination.

The injuries suffered by the plaintiff were a fracture of the skull, a laceration on the forehead, lacerations on the right leg and left wrist, a fracture of the mid-shaft of the right radius and ulna and a fracture of the second lumbar vertebra. As a result of the injuries received the plaintiff is a paraplegic and is likely to remain so. He has very limited movement around the left hip joint and very slight movement of the right hip. He has a complete lack of sensation below about waist level and no reflexes at all in his lower limbs. It is likely that he will be confined to a wheel-chair for the rest of his life. As a further consequence of his condition the plaintiff suffers from a urinary tract infection which is likely to persist; this may be kept under control by constant use of antibiotics although it is likely that a stage would be reached when these drugs would cease to be effective. The medical evidence was that it is to be expected that this condition will ultimately lead to chronic renal disease and renal failure which in the absence of some advance in medical knowledge might considerably shorten his life expectancy, although evidence on this point was rather inconclusive.

After the accident the plaintiff remained in hospital initially until about November 1970. For about the first three months of this period he suffered a great deal of pain in his back, arms, legs and head for the alleviation of which he was given medicines and injections. After July he had only a small amount of pain and at the present time he has a little pain in his knees and buttocks, mostly at nights, but sometimes by day. In about November 1970 he returned to his village for about two weeks. However, conditions in the village would appear to have made proper care a matter of some difficulty and in particular he was handicapped by the lack of a wheel-chair. He then returned to hospital where at the date of the hearing he was still a patient, the reason for this being that he has no wheel-chair.

The plaintiff requires assistance to do certain things such as getting into a bath, although he can get himself to the toilet and he is able to dress himself. In hospital he has learned to knit and has also acquired some knowledge of typing. The plaintiff claims that he has become fairly good at typing although he has had only one or two lessons; he appears to like it and he said that he would take a job as a typist if one were available.

The age of the plaintiff at the time of the accident was twenty-three or twenty-four years. His pre-accident life expectancy would have been to an age between sixty and sixty-five and on the evidence it is not really possible to make a finding as to the extent, if any, to which this expectancy is likely to be diminished as a result of the accident. Had it not been for the accident the plaintiff might reasonably have been expected to continue to work until the age of at least fifty-five years.

The plaintiff had a somewhat varied employment history since leaving school in September 1965. He completed standard 5 and commenced but did not finish a course at Mount Hagen Junior Technical School said to be approximately equivalent to form 1. On leaving school he entered the police force where he remained for a period of between eighteen months and two years; on a reconciliation of the total of his various periods of employment and village life between the date of his leaving school and the date of the accident as given by the plaintiff in evidence it would seem more likely that he served in the police force for about two years, being dismissed for sleeping on duty. His salary as a policeman was $15 per fortnight. Following his dismissal he obtained employment as a storeman at a wage of $19 per fortnight but after one month as a result of a death in his family he left and returned to his village in the Henganofi sub-district of the Eastern Highlands where he remained for almost a year. He then worked with the Department of Forests at Bulolo for four months at the very small wage of $4 per month with some keep. Because of the smallness of the pay he left this employment and went to Lae where he obtained work as a mechanic’s assistant at a bus depot at a wage of $18 per fortnight. He remained for four months after which he was dismissed at a time of reduction of staff and again returned to his village, this time remaining for about two months and during this time he married. On leaving the village he was employed selling petrol at Kainantu for about one month at a wage of $14 per fortnight but left because there was no house. After working on roadmaking for three days he went back to his village and remained there for about six months. After this he did some painting at Goroka Hotel for about one month at a wage of $4 per week. As he did not think this wage enough he decided to try to find other employment. He returned to his village a week before the accident and at the time of the accident he was on his way to Goroka for the purpose of seeking employment.

Mr. Batterham the acting district labour officer at Goroka gave evidence that if the plaintiff were not incapacitated he could find employment for him as a sales assistant at a commencing wage of $8.75 per week which would increase to $9.75 per week in the second year with the same employer and to $10.75 per week in the third year with that employer. Mr. Batterham said that the plaintiff would certainly have no difficulty in finding employment at the minimum urban cash wage in the Goroka area which is $6.50 per week. He said that there were no present employment possibilities in Goroka for the plaintiff with his disability. He also said that there were very few requests for typists and whilst there might be a possibility of the plaintiff obtaining employment with the Administration in that capacity an important consideration would be his ability to get to work on time in the absence of public transport. The rural cash wage in the Henganofi area is $4.41 per week which Mr. Clark, the Highlands regional economist, said had to be just above the income obtainable from subsistence farming in order to attract labour from the subsistence sector to the monetary sector.

Prior to the accident the plaintiff engaged in sport to a limited extent. He had played football and basketball when in the police force and he played football in 1969 and 1970. More recently he had played soccer in his village. In the village he also hunted and did some dancing. Obviously he can no longer take part in any of these activities.

The plaintiff said that he had not had intercourse with his wife since the accident and did not think he would be able to do so although he had not tried. The medical evidence did not indicate whether or not sexual activity by the plaintiff should be possible.

There was evidence that the plaintiff has a coffee garden with about one hundred trees, the average annual return from which would be $16.50. The evidence did not show whether this income would still continue despite the plaintiff’s disability and the amount is so small that it does not merit further consideration in the assessment of damages.

The only other material evidence with which it is necessary to deal is that relating to the cost of a wheel-chair. The cheapest wheel-chair would cost from $130 to $150. The life of such a chair in hospital would possibly not exceed four years but the life of a chair to be used by the plaintiff alone and under unknown conditions is necessarily a matter of surmise.

No special damages are claimed. The plaintiff is entitled to general damages for his loss of earning capacity, pain and suffering and loss of amenities of life and by way of provision for his future needs to the extent to which these arise from his condition brought about by the accident. On the evidence it would not be appropriate in arriving at the amount of damages to take into account loss of expectation of life.

The amount to be awarded for general damages is a single amount that is appropriate in the circumstances of the case and is not the sum of rigidly separate and independent items: Teubner v. Humble[diii]1. Lord Denning M.R. in Watson v. Powles[div]2 exed this chis concept in these words: “There is only one cause of action fosonal injuries, not severalveral causes of action for the several items. The award of damages is, therefore, an award of one figure only, a composite figure, made up of several parts. Some of the parts may be capable of being estimated in terms of money, such as loss of future earnings. Others cannot truly be estimated in money at all but must proceed on a conventional basis, such as compensation for pain and suffering and loss of amenities: see Ward v. James[dv]3. At the end all the parts must be brought together to give fair compensation for the injuries. If a man is awarded a very large sum for loss of future earnings, it may help to compensate him for his future pain and suffering. If he has no loss of earnings, he may be more generously compensated for pain and suffering. And so forth. Just as a jury in the old days would award an overall figure, so may a judge today. The invariable direction to juries in fatal accident cases was ‘that they must not attempt to give damages to 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’: see Rowley v. London & North Western Railway Co.[dvi]4 by Brettike Likewise in personal injury cases a judge is to give what is, in all the circumstances, a fair compensation. Every judge, when working out the sum, notes down the item and calculates so much for loss of future earnings, so much for pain and suffering, and the like. That gives him a starting point. But there are so many uncertainties and intangibles involved that in the end he has to gather all the items together and give a round sum. So I do not agree with Mr. Howe’s contention. It is not the judge’s duty to divide up the total award into separate items. He may do so if he thinks it proper and helpful, but it is not his duty to do so.”

There are several recent cases which may also be noted in this regard. In Steward v. Steward[dvii]5 Jacobs Jaid said at p. 802: “There is another matter in relation to the judgment to which I would refer, namely that we have not the benefit of an analysis by way of figures and by way of computation of the various elements which by law go into a total verdict, a verdict for a single sum. It is a great pity that recent stress that may have been laid on the necessity for regarding any verdict as what it undoubtedly is, namely a single sum, should have led to an impression that it is not desirable, not correct, not essential almost, for a judge to take account of each factor. If a judge does so, he should express it in his reasons in the usual way.” The other two members of the Court of Appeal agreed. In Kirkpatrick v. Oliviera[dviii]6, the New South Wales Court of Appeal pointed out that although there is no obligation on a trial judge to divide up the total amount of his award into separate items, a court is not justified in the ordinary case of a wage- or salary-earning man or woman in refraining from making the fullest analysis which it can make on the evidence before it of the various components of damage, from working out the likely wage loss as part of the working out of the future employment prospects and loss of earning capacity and from detailed examination of any other factor in damages which is capable of any degree of precision in assessment. In Mitchell v. Mulholland (No. 2)[dix]7where the trial judge had itemized damages under various heads, the Court of Appeal accepted this approach and varied the amount of damages by substituting different amounts under each of those heads.

Bearing these observations in mind I propose firstly to set out the basis on which I arrive at an assessment of the items of damage embraced in pecuniary loss, namely loss of earning capacity and provision for future needs, which are capable of being estimated in terms of money.

The plaintiff is to be compensated for the loss of earning capacity rather than for the loss of wages which he might be expected to earn but for his injury: Arthur Robinson (Grafton) Pty. Ltd. v. Carter[dx]8; Faulkner v. Keffalinos[dxi]9. In the application of this principle it does not matter that the plaintiff may not have fully exploited his lost capacity before injury (see, for example, Dodd v. Weeks[dxii]10) and this would certainly appear to be the case here.

Counsel for the plaintiff submits that the plaintiff’s earning capacity for the future had he not met with the accident should be assessed as in the vicinity of $8 per week and that no allowance should be made for the possibility of any future income with his present disability. On the whole of the evidence I am satisfied that the plaintiff prior to the accident had the capacity to earn an amount which I would assess at $7.50 per week despite the fact that for considerable periods he in fact earned much less than this. It would seem that his approach to obtaining suitable employment with appropriate remuneration for the level of his ability was somewhat haphazard and had he availed himself of the services of the district labour office he might have hoped for a better result than that obtained from his own efforts. The evidence of Mr. Batterham is that he could have found employment for him as a sales assistant at a commencing wage of $8.75 per week. In view of the plaintiff’s employment history I would think that the probabilities would have been against his remaining for any lengthy period with one employer so that he may never have obtained the increased wages payable for more than one year’s service with the same employer. At the same time such employment may not always have been available so that the plaintiff might have been compelled to take some other urban employment which was less well paid and the minimum urban cash wage in the Goroka area is somewhat less, being only $6.50 per week. These considerations lead me to the view that a fair assessment of the plaintiff’s pre-accident earning capacity would be $7.50 per week.

The plaintiff’s earning capacity with his existing disability presents rather more of a problem. His only possible future employment would appear to be as a typist but whether or not he might actually be so employed at some time in the future when he has attained sufficient skill appears very uncertain. Problems of accommodation and transport might well prove insuperable and on the evidence before me I do not feel that I could justifiably assess any sum as the amount of his post-accident earning capacity. On the whole I feel that as far as can be presently seen it is more likely than not that he would not be employable so that I must treat him as having no post-accident earning capacity. The result is that his loss earning capacity is $7.50 per week.

On the evidence as to the plaintiff’s age and the age up to which he might have been expected to continue to work I think it is reasonable to take a period of thirty years as the period for which had it not been for the accident the plaintiff might have continued in gainful employment. That of course is not to say that he would necessarily have suffered a loss of $7.50 per week throughout that period. Regard must be had to the vicissitudes of life such as unemployment, ill-health, injury or earlier death and also, since those vicissitudes cannot be assumed to be only those which are unfavourable to the plaintiff, to the possibility that over the years he might have been able to improve his economic position.

In arriving at a figure for loss of earning capacity based on the considerations set out above I am adopting what is referred to in Mitchell v. Mulholland (No. 2)[dxiii]11as the “conventional” approach of fixing the multiplicand (that is, the annual amount of loss) and the multiplier appropriate to the particular case. Whilst this does appear to be a method which so far as reported decisions go is not necessarily regarded as “conventional” in Australia in this type of action that is not to say that there is any objection to it in principle. Once the annual loss is determined on the evidence, the crux of the matter is the choice of a multiplier, as this is the means of arriving at a lump sum as a component of the damages which the plaintiff is now to receive to compensate him for the continuation of that loss for a period of time in the future. Obviously this is not an amount which allows of any precision—what is done is to select an appropriate multiplier having regard to the term of years involved and any other circumstances which appear relevant. As the assessment of general damages cannot be a precise mathematical calculation the resultant figure must then be looked at (and possibly rounded off one way or the other) to see if it produces a fair compensation under this head. Counsel for the plaintiff suggested that an appropriate multiplier would be about fifteen. This seems to me to be a little on the high side. In Mitchell v. Mulholland (No. 2) where the period from the date of trial for which loss of earnings would continue was approximately thirty years (financial loss up to trial there being a separate item in the total award) the trial judge adopted a multiplier of fourteen and the Court of Appeal was not prepared to differ from this. Whilst this of course can be no more than a guide, it assists in confirming my own view that in the present case the appropriate multiplier is fourteen. The multiplicand being $390 (based on a weekly loss of $7.50) the resultant figure is $5,460. When this is rounded off to $5,500 I would consider that this gives an amount which is fair compensation for the plaintiff’s loss of earning capacity.

Under the head of future needs the only specific need as to which on the evidence there is any definite figure is the provision of a wheel-chair. This is an obvious necessity for the plaintiff. The life of such a chair in private use by the plaintiff under unknown conditions is, as I have previously indicated, a matter of surmise, but I would think it likely that it might require replacement about every five years. The evidence did not suggest that there would be anything in the nature of a trade-in on such a chair so that if the cost of a chair remained constant the plaintiff would have to expend between $130 and $150 every five years, which would mean a total expenditure over the remaining years he might be expected to live (that is between thirty-five and forty) of something to the order of $1,000.

The other needs suggested by counsel for the plaintiff for which some provision should be made are the possibility of his having to pay medical expenses in the future, if he were required to return to hospital, or if he remained in the village, having to pay some person to look after him, such a person being someone other than his wife who would be working. I do not think that I am entitled to assume that the hospital system of this country will so change in the future that a person in the position of the plaintiff is likely to be required to pay more than the present nominal charge for admission to hospital and I would therefore not be justified in taking into account in awarding damages the likelihood of the plaintiff having to pay more than a nominal sum for future medical attention. If he is to remain in his village, which at this stage seems the most likely course once he is equipped with a wheel-chair, he will certainly need assistance which to some extent I should think would be given by his wife, although account must certainly be taken of the fact that she might not for the remaining years of the plaintiff’s life be either able or willing to give him the attention he will obviously require, and the plaintiff would then have to look to some other person in the village for this. It may well be that in the system of village life he would not be expected to pay for an attendant but the possibility cannot be ignored that if the plaintiff in fact has money and is known to have it he may not be able to get assistance gratuitously. There was little evidence to assist me on this aspect and whilst it is necessarily somewhat speculative I feel that some allowance should be made for such a contingency in view of the evidence as to the limited capacity of the plaintiff to look after himself. I would not agree with the suggestion that the basis for this should be the amount of the rural wage (that is, $4.41 per week) discounted, as the evidence does not suggest that the plaintiff would require a full-time attendant in the person of an able-bodied male who would otherwise be earning such a wage.

Allowing for both purchases of a wheel-chair for the remainder of the period of the plaintiff’s life expectancy and the contingency of some unspecified payment being necessary in order to secure attention and assistance in the village and bearing in mind that the amount is being received as a present lump sum, I consider that an appropriate component of the plaintiff’s general damages to take account of his future needs is the sum of $2,000.

The plaintiff’s non-pecuniary loss, that is, compensation for pain and suffering and loss of amenities is, as has been said, something which cannot truly be estimated in money at all, but of course the court must do the best it can to give a proper monetary compensation for these matters. Of these two items by far the most significant is the plaintiff’s loss of amenities, as without in any way attempting to minimize his pain and suffering as distinct from his loss of amenities, the evidence indicates that the period for which he seriously suffered pain was some three months and that was alleviated by drugs and that he now has only a little pain.

The major factor for which the plaintiff must be compensated under this head is the fact that he is a young man who at the time of the accident was twenty-three or twenty-four years of age and leading what would appear to have been the normal life of a man of that age, engaged in village activities when in his village, playing what may be termed social sport, having complete mobility and enjoying what was apparently a normal married life but who is now deprived of all this and faces the prospect of spending the remainder of his life, possibly up to forty years, confined to a wheel-chair. It is obviously a matter of the greatest difficulty to decide what is an appropriate amount of compensation for such a loss and it can only come down to a matter of impression based on such experience as one has in these matters as to what is a fair compensation. Doing the best I can I would consider that an amount to the order of $15,000 would be appropriate for pain and suffering and loss of amenities.

The total of all the amounts thus arrived at under pecuniary and non-pecuniary heads of damage is $22,500. In my opinion viewed as a global sum this is a fair compensation for the plaintiff under all the circumstances and I consider that this is the proper sum which should be awarded for general damages.

Damages are therefore assessed in the sum of $22,500.

Order accordingly.

Solicitor for the plaintiff: W. A. Lalor, Public Solicitor.
Solicitor for the defendants: P. J. Clay, Crown Solicitor.

[diii][1963] HCA 11; (1963) 108 CLR. 491, at p. 505, per Windeyer J.
[1968] 1 Q.B. 596, at p. 603.
[dv] [1966] 1 QB. 273, at p. 296.
[dvi](1873) [1852] EngR 1037; LR. 8 Exch. 221, at p. 231.
[dvii] (1970) 92 WN. (N.S.W.) 801.
[dviii] [1971] 1 NSWLR. 321.
[dix] [1972] 1 QB. 65.
[dx][1968] HCA 9; (1968) 41 ALJR. 327, at pp. 330-331, per Barwick C.J.
[dxi] (1970) 45 ALJR. 80, at p. 84, per Windeyer J.
[dxii] (1970) 16 FLR. 205.
[dxiii] [1972] 1 QB. 65.