Serive v Independent State of Papua New Guinea [1981] PNGLR 549 (30 July 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 549 - Meddie Serive v The Independent State of Papua New Guinea

[1981] PNGLR 549

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MEDDIE SERIVE

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Pratt J

14-15 April 1981

30 July 1981

DAMAGES - Personal injuries - Particular awards of general damages - Paraplegic - Dislocated fracture at T12 - Confined to wheelchair - Usual continuing problems - Correctional institutions officer - Male aged 20 - No possibility of re-employment without appropriate facilities - Award of K106,260 general damages including provision for housing and vehicle.

The plaintiff, a male aged 20 who had just completed his probation as an assistant correctional officer, suffered head and spinal injuries in a motor vehicle accident as a result of which he was rendered a paraplegic, confined to a wheelchair and unemployable.

Held

General damages should be assessed at K106,260 including K45,000 for pain and suffering and loss of enjoyment of life.

Trial

This was an action in which the plaintiff sued to recover damages for personal injuries as a result of a motor vehicle accident.

Counsel

W. Neill and J. Yagi, for the plaintiff.

A. Mullumby and J. Kanawi, for the defendant.

Cur. adv. vult.

30 July 1981

[His Honour’s reasons for judgment have been summarized in part.]

PRATT J:  [The plaintiff, a single man aged 20, suffered personal injuries in a motor vehicle accident in 1980. The principal injuries were an injury to the left parietal region of the head, and a fracture dislocation of the spine between the 12th thoracic and the 1st lumbar vertebrae resulting in paraplegia which will confine the plaintiff to a wheelchair for the rest of his life with the usual susceptibility to urinary tract problems and consequent shortening of life.]

The plaintiff was at the time of accident an assistant correctional officer Grade I in the Corrective Institutions Service, having recently completed his three years probation. He is still in receipt of a full Grade I salary from the Corrective Institutions although I understand this will cease when he obtains his award of damages. There is no indication that he will be expected to refund, either legally or morally, the amount which he has received to date. This factor must be taken into account when assessing his economic loss.

[His Honour then concluded that any possibility of the plaintiff being re-employed by the Corrective Institutions Service or any government department was remote in the extreme but did not rule out the possibility that the plaintiff might be re-employed provided suitable facilities could be found and added: “However this is not a strong possibility and I cannot proceed realistically on the basis that it will occur. As a result of the injury to the plaintiff therefore, he has lost not only his salary but pension rights following twenty years service.”

His Honour then found that because of his medical condition the plaintiff could not return to the ordinary village house and would require a house suitable to his condition and a motor vehicle suitably adapted for his use.

In relation to pain and suffering and loss of enjoyment of life his Honour said:]

This then brings me to the most difficult area of assessment. The plaintiff is a young man who has not yet married. His chances of so doing, at least happily, are quite remote. Even if he does marry, it is clear that he will never have the enjoyment of children. He has the sexual urge within him but he is incapable of doing anything about it. The physical satisfaction of that urge is now impossible. In addition he had played basketball and league football, went fairly regularly to the pictures and also to dances. My attention has been drawn to the sums awarded for example in Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[dccciv]¹ and by Saldanha J. in a case somewhat similar to the present, Charles Pupu v. Pelis Tomilate & Anor[dcccv]².

Plaintiff’s counsel points out that the vicissitudes of life will be less kind to the present plaintiff because of the comparative lack of facilities in this country for a paraplegic when compared with Australia. Raine D.C.J. had the same problem in mind in Kerr’s case (supra) at p. 257 of his judgment when he discusses such facilities and says:

“This man could be completely at risk were he to remain here indefinitely. This is not critical of this country ... But Mr. Kerr would have been a fool to remain for too long here. The quadriplegic and the paraplegic need the greatest care, and thus he has to be prepared to pay for it, and so has the tort-feasor.”

Assuming I am correct in my awards for a motor vehicle and housing, these matters reflect a figure for certain loss in the amenities of life which this plaintiff has suffered, and are capable of specific quantification. Thus, although the figure which I award is less than the sum given to a paraplegic under the assessment in Kerr (supra) the end result is very much the same. I would not wish it to be thought however that within the broad term “pain, suffering, and loss of amenities”, the furnishing of a vehicle and house are the only aspects which fall for consideration under “loss of amenities”. Obviously they are not. But they are two items which lend themselves in this particular case to specific quantification.

Although the present plaintiff is younger than Kerr by a few years, and has not the experience of married life, he has not undergone the painful operations and their sequelae which Kerr encountered. In assessing non-economic loss at K60,000 I do not think that the Supreme Court in Kerr (supra) was laying down a general figure for this aspect, though it certainly does afford a valuable guide and touchstone. Each case must be examined in the light of its own facts and circumstances. I do not pretend that the extraction of a ratio decidendi from Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[dcccvi]³ in respect of non-economic loss is an easy task other than to say that whether the plaintiff be expatriate or national, you must take him “as you find him” (per Andrew J., at p. 269) and that the courts will compensate the plaintiff “so far as money can” (per Raine D.C.J., at p. 257 of the judgment).

Nothing which I can award will of course replace the loss of the physical enjoyment of living in all its manifold areas which this young man on the threshold of life has now suffered. The plaintiff’s counsel puts the claim in this area at well above K60,000 whilst defendant’s counsel submits that a sum of K30,000 in the circumstances of this country would be adequate. In the light of the over-all figure which I must arrive at by the conclusion of this judgment, I feel that one figure is too high and the other too low. Not surprisingly therefore, a figure of about the middle in this range is one which after anxious thought has occurred to me as appropriate, adequate and fair. I would therefore award the sum of K45,000 under this head. I am bearing in mind of course the fact that the plaintiff seems to have come to terms with his new life and that he is willing to undergo whatever rehabilitation programmes may develop within the country in order to endeavour to return to the work force. His personality is such that I feel he will do the best he can and it may well be that with application and attention and effort he will be able to make a useful contribution to the development of the country. He is not of course completely paralyzed and he has at least the use of the upper part of his body plus full brain function. Nevertheless I consider that any lesser sum than that awarded would verge on the side of paltriness and would fail to take account of the real deprivations which he will suffer over the ensuing years.

I therefore order that the defendant is liable in damages to the plaintiff in the sum of K106,260.00 made up as follows:

Economic loss	(a) salary	24,774.00
<	(b) pension	7,346.00
Housing	(a) capital cost	13,450.00
	(b) conversion	2,600.00
Vehicle	(a) capital cost	4,490.00
	(b) conversion	600.00
Wheelchairs	<	3,500.00
Family Services		3,000.00
Loss of expectation of life	<	1,500.00
Pain and suffering and loss of enjoyment		45,000.00
	<	K106,260.00

I enter judgment for the plaintiff accordingly.

Judgment accordingly.

Solicitor for the plaintiff: A. Amet, Public Solicitor.

Solicitor for the defendant: B. Emos, Acting State Solicitor.

[dccciv]1 [1979] P.N.G.L.R. 251.

[dcccv]2 [1979] P.N.G.L.R. 108.

[dcccvi]3 [1979] P.N.G.L.R. 251.