Korrolly, Tovue and Kolita v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 415 (4 February 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 415 - Korrolly, Tovue and Kolita v MVIT 

[1991] PNGLR 415

N941

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KORROLLY, TOVUE AND KOLITA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Rabaul

Ellis J

10-12 October 1990

4 February 1991

DAMAGES - Personal injuries - Particular awards of general damages - Leg injury - Below knee amputation - Artificial leg - Sporting activities eliminated - Male villager aged twenty-three - Grade 10 education - Loss of income from cocoa and copra collecting - Award of K25,000 general damages and economic loss of K10,566.

The plaintiff, a male aged nineteen (twenty-three at trial) and a subsistence farmer claimed damages for personal injuries arising out of a motor vehicle accident. ne principal injuries suffered were multiple fractures of the right tibia and fibula which required a below-the-knee amputation with consequential continuing disabilities including the need to wear a prosthesis. The plaintiff was a village man with a grade 10 education and an active sportsman. His permanent disability was estimated at 70 per cent.

Held

Damages for pain and suffering and loss of amenities should be assessed at K25,000 and damages for future economic loss based on subsistence living at K10,566.

DAMAGES - Personal injuries - Particular awards of general damages - Leg injuries - Fracture of tibia and fibula - Permanent disability of 10 per cent - Male village farmer aged twenty (twenty-four at trial) - Award of K9,000, including economic loss.

The plaintiff, a male aged twenty (twenty-four at trial) and a village subsistence farmer claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered was a compound fracture of the left tibia and fibula which healed but left an unsightly scar. His continuing disabilities were assessed as not exceeding 10 per cent. There was no evidence of economic loss.

Held

Damages for pain and suffering and loss of amenities (including an allowance for economic loss) should be assessed at K9,000.

DAMAGES - Personal injuries - Particular awards of general damages - Leg injury - Fracture of tibia - Male village farmer aged twenty-three (twenty-seven at trial) - Award of K5,000 general damages including economic loss.

The plaintiff, a male aged twenty-three (twenty-seven at trial) and a village subsistence farmer claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered was a closed fracture of the tibia, mid-shaft. His continuing disabilities were assessed at 5 per cent.

Held

Damages for pain and suffering and loss of amenities (including an allowance for economic loss) should be assessed at K5,000.

Cases Cited

Alfred Moia v The Independent State of Papua New Guinea [1988] PNGLR 299.

Anis Wambia v The Independent State of Papua New Guinea [1980] PNGLR 567.

Caedmon Kioeba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365.

Caswell v National Parks Board [1987] PNGLR 458.

George Kiak v Tora Enterprises Pty Ltd [1986] PNGLR 265.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161.

Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557.

Kama Pupti v Thomas Kudjip [1986] PNGLR 283.

Kar Kirai v The Independent State of Papua New Guinea [1990] PNGLR 563.

Kawa Oroeala v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645.

Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573.

Kuli Gokam v The State (N826, 1990, unreported).

Kunjil On v The Independent State of Papua New Guinea [1986] PNGLR 286.

Lus Minjuk v The Independent State of Papua New Guinea [1988] PNGLR 302.

Maka Kewe v Thomas Kudjip [1986] PNGLR 279.

Nali Matabe v The Independent State of Papua New Guinea [1988] PNGLR 309.

Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 295.

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Quinn v Scott [1965] 1 WLR 1004; [1965] 2 All ER 588.

Trial

This was an action in which the plaintiffs claimed damages for personal injuries as a result of a motor vehicle accident in which they, as pedestrians, were struck by a motor vehicle early on Christmas Day, 1986.

Counsel

S Tedor, for the plaintiff.

R Thompson, for the defendant.

Cur adv vult

4 February 1991

ELLIS J: In this matter three pedestrians were injured in a motor vehicle accident early on Christmas Day, 1986. Their cases have been heard together due to the common issues and evidence on liability and since separate hearings would involve additional time and expense, require different judges and might lead to inconsistent findings.

Two starkly different versions emerged as to how the accident in question occurred. For the plaintiffs it was suggested that they were on the side of the road when they were struck by an out-of-control, speeding vehicle driven by a drunken driver. In contrast, the defendant suggested that this was a case where three inebriated plaintiffs were the authors of their own misfortune since they were standing on the road in the path of an oncoming vehicle which was proceeding in a proper fashion.

The task of fact-finding has been rendered difficult for a number of reasons. First, the plaintiffs’ evidence such as their substantial over-exaggeration of the duration of their hospitalisation, suggests that they were, at best, unreliable historians. Next, some of the witnesses were related: for example, two of the plaintiffs were brothers and the defendant’s first witness was the sister of the driver. Thirdly, recollections were being given some four years after the events in question. Last but not least, there were difficulties attending the assessment of evidence from witnesses who, at the time of the accident, were of varying degrees of intoxication.

[His Honour then considered the evidence as to liability in a manner not calling for report:].

QUANTUM — DAVID KORROLLY

This plaintiff gave evidence of having no work experience despite a grade 10 education. Aged twenty-three, he could not recall any serious health problems prior to the accident.

Medical reports dated 10 May 1987 and 10 June 1988 from St Mary’s Hospital, Vunapope, disclose that he sustained lacerations to his left foot which were sutured and which healed without any loss of function. He also sustained a laceration to his forehead on the right side which left a scar not markedly conspicuous. Thirdly, and most significantly, this plaintiff suffered severe injuries to his lower right leg, x-rays revealing multiple fractures of both tibia and fibula. Despite treatment, this leg was amputated about 7 centimetres below the knee joint on 13 February 1987 due to infection and repeated haemorrhaging which suggested arterial damage within the leg. Upon healing of the stump, after some post-operative infection had subsided, he was discharged on 27 March 1987 and referred to Angau Hospital in Lae for the purpose of obtaining an artificial limb, visits to which may be expected to be a periodic feature of his lifestyle henceforth.

Having first obtained an artificial leg in mid-1987, this plaintiff suggested that it was replaced this year thereby suggesting triennial renewals although in his evidence he suggested that he would require a new prosthesis every two years. His return air fare to Lae was K162, he claimed to have been hospitalised for two months on the first occasion and one month on the second occasion (although the duration of those visits is less significant since no claim for hospital expenses has been made by his lawyer) and he suggested that during these visits he incurred personal expenditure of K200 and K100 respectively. As to the price of artificial limbs, a 1985 price list was tendered coupled with the suggestion that this price list was still in use. Further, the covering letter suggested that, in compensation cases, only the first limb is charged for (K185) and that “stump socks, straps etc are provided free of charge”.

The continuing disabilities of this plaintiff are largely the normal sequelae associated with a below-the-knee amputation. He indicated that walking uphill or downhill causes pain as does walking any distance (which requires him to sit and rest) and that if he walks a long distance one day then he has problems the following day. He understandably cannot climb and claims to be unable to lift. Further, he suggests that he is no longer able to sit on the ground, requiring instead a chair. This plaintiff was right-legged, wears long trousers to cover his leg and is concerned at his marriage prospects. I accept that any active, pre-accident sporting activities have been eliminated from his lifestyle.

As to his economic loss, he claimed to have collected coconuts for copra, earning about K100 per month prior to the accident. He further suggested that he had been involved in gathering baskets of wet cocoa beans from which activity he derived K18 per month.

Dr Jeffrey Tuvi was called to prove his report which, in respect of this plaintiff, ventured an assessment of a 70-80 per cent permanent disability of his right leg and 10 per cent to his face. Having seen the facial scar I think the latter figure is an overestimate for this cosmetic injury. I accept his conclusion that, for this young man, “life will be doubly difficult to live in a village setting”. However, I am unable to accept the last sentence of Dr Tuvi’s report: “With only primary school education and no specialised skill or training, his chances of employment in the open market are almost nill (sic)” since the plaintiff himself gave evidence of having been educated to grade 10. As such, the plaintiff’s future earning capacity is not as low as the doctor suggested since a sedentary clerical position would be well within his educational attainments although his physical disability might well weigh against him vis-à-vis other applicants for such positions in this country where the labour supply is well in excess of demand for such employment.

No evidence was led to support any claim for out-of-pocket expenses.

So far as pre-trial wage loss is concerned this plaintiff has established some loss of income. I do not think his stated income from copra and cocoa may be regarded as cumulative nor do I think that either amount is maintainable within any year. I would expect his annual income to have been in the region of K500 and I allow K40 per month for the period from the accident to the date of judgment (24 December 1986 to 4 February 1991), a period of forty-nine months, which suggests a loss of K1,960. Pursuant to the decision in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, I allow interest at 4 per cent (being half of the appropriate rate of 8 per cent per annum) for the same forty-nine month period giving an amount K320 for interest.

The problems of quantifying claims for future economic loss by plaintiffs with a subsistence lifestyle in a rural or semi-rural environment have been considered in a number of earlier decisions: for example, see Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557 per Miles J which has been subsequently cited by many judges who have sought to build a compensatory “brick” with little or no evidentiary “straw”. I have considered the additional decisions cited by counsel under this heading, namely Anis Wambia v The Independent State of Papua New Guinea [1980] PNGLR 567; Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573; Kama Pupti v Thomas Kudjip [1986] PNGLR 283; Maka Kewe v Thomas Kudjip [1986] PNGLR 279 and Nali Matabe v The Independent State of Papua New Guinea [1988] PNGLR 309. Counsel for the defendant calculated that K10 per week for thirty-five years discounted at 3 per cent per annum gave K11,500 and, in view of contingencies, suggested that an appropriate range for future economic loss was K8,000 to K10,000. The plaintiff derived K12,918 using the 3 per cent tables. As I have earlier indicated, in respect of pre-trial wage loss, I consider this plaintiff’s loss to be in the region of K10 per week. I was initially tempted to make a global assessment of K10,000. Upon checking the reasonableness of that figure against a figure derived by the usual arithmetic process I obtained K10,566 calculated as K10 per week for thirty-seven years (that is, to age sixty) discounted at 3 per cent per annum with a deduction of 10 per cent for contingencies and I award that latter amount in respect of lost earning capacity.

I now come to medical expenses and hospitalisation costs to date. The covering letter to the price list for artificial limbs suggests that, in compensation cases, the first limb is paid for and accordingly I allow K184. This plaintiff has had two trips to Lae at a cost of K168 each, a total of K336. I also allow his claims for personal expenditure of K200 and K100 in respect of such trips. This gives a total under this heading of K820.

As for the future, such expenses, as airfare and personal expenditure costs totalling K268 may be expected to recur every two or three years. On the basis of two and half years that converts to K2 per week. The present value of K2 per week until death to a twenty-three old man, using the Australian Life Tables 1975/77 and a 3 per cent discount rate (see H Luntz Assessment of Damages in Personal Injury and Death, (2nd ed (1983) at 544) is K2618. I make no deduction for contingencies.

In arriving at a figure for general damages for pain and suffering and loss of enjoyment of life I have considered the evidence in this case, the amounts awarded in not dissimilar cases involving leg injuries and decisions to which I was referred by counsel, namely George Kiak v Tora Enterprises Pty Ltd [1986] PNGLR 265; Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294; Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365; Lus Minjuk v The Independent State of Papua New Guinea [1988] PNGLR 302; Kuli Gokam v The State (N826, 1990, unreported); Kunjil On v The Independent State of Papua New Guinea [1986] PNGLR 286; Kama Pupti v Thomas Kudjip [1986] PNGLR 283; Maka Kewe v Thomas Kudjip [1986] PNGLR 279 and Caswell v National Parks Board [1987] PNGLR 458. I consider a 70 per cent disability figure appropriate and I award K25,000 under this heading. Attributing K10,000 of this to the period since the accident suggests, on the authority of Pinzger’s case, an award of interest under this heading of K1,000 calculated at 8 per cent of K10,000 over the period from the date of the writ, 23 October 1989, to date — a period of fifteen months.

I reject the Griffiths v Kirkemeyer [1977] HCA 45; (1977) 139 CLR 161 claim. There is no evidence to suggest that this plaintiff’s parents were rendering any additional assistance to him after the accident and it cannot, on any view, be said that a “need” for such assistance was created by the accident: see H Luntz Assessment of Damages in Personal Injury and Death, 2nd ed (1983) at 221, par 4.6.08.

From the amounts awarded above I would deduct 30 per cent for contributory negligence. Accordingly, my award of damages may be summarised as follows:

Pre-trial economic loss	K 1,960
Interest thereon	320
Future economic loss	10,566
Pre-trial medical costs	820
Future medical costs	2,618
General damages	25,000
Interest thereon	1,000
	K42,284
Less 30 per cent	12,685
	K29,599

Hence, in this matter there will be a verdict and judgment for the plaintiff in the amount of K29,599. The defendant is to pay the plaintiff’s costs.

QUANTUM — GERSON TOVUE

This plaintiff is currently aged twenty-four. He obtained a grade 6 education and claimed to have worked prior to the accident as a plumber with Rabaul Metal Industries. His evidence must be viewed with suspicion: his evidence in chief suggesting hospitalisation for two months proved, upon cross-examination, to have been only one month; he claimed in evidence to have lost consciousness until the afternoon after the accident and he suggested a period of two days unconsciousness to his treating doctor yet the statement of claims suggested that he was semiconscious upon admission to hospital following the accident.

Reports from the hospital at Vunapope dated 11 May 1987 and 10 June 1988 suggested that this plaintiff suffered a compound fracture of the left mid-tibia and fibula with some displacement. I quote the concluding paragraphs of the latter report:

“Mr To Vue now walks well. The left thigh muscles are strong, the knee and ankle joints have a full range of movement and the fractures are soundly united without angulation or rotation. There is no pain. But there is an abvious (sic), unsightly deformity due to a large bony swelling on the antero-medial aspect of the middle 1/3 rd of the leg. There is a rather thin 2 cm scar running diagonally downwards and inwards at the site of the swelling. X-rays confirm the soundness of the union and also showed cross union between the tibia and fibula at the fracture site.

In conclusion I would say that the patient has sustained a very serious injury to his left leg from which he had made an excellent recovery over a period of about 12 months. He has however been left with an unsightly leg and with a scar that may in future break down as a result of a relatively slight injury.

On the strength of those two points I would assess the percentage of his permanent disability at 5.”

As to continuing disabilities, this plaintiff suggested that he finds it difficult to walk downhill or to walk for long periods and that he can only sit cross-legged for half an hour before experiencing pain. He claimed to be unable to play touch rugby after the accident although two witnesses (Lawrence Stanley and Steven Toirima) gave evidence that they had seen him doing so subsequent to the accident. He also claimed that he was now unable to climb yet this can carry little weight since he conceded that he had not even tried to so do since the accident. His pre-accident work involved cleaning up, burning bush and other tasks “around the house”.

Dr Tuvi assessed this plaintiff’s disability at 50-60 per cent. However, he conceded that this figure was based upon this plaintiff’s inability to undertake certain activities and, necessarily, his source for that information was the plaintiff. Such reliance upon the plaintiff’s veracity has, in my view, rendered his assessment unreliably high. Upon cross-examination Dr Tuvi conceded that physiotherapy and exercise would reduce muscle wasting and that if this plaintiff could, in fact, walk up hills and squat for half an hour then he would reduce his percentage assessment.

The only claimed out-of-pocket expense was K100 for the medical report which was clearly medico-legal in nature: the subject report was obtained for the purposes of presentation in this litigation and, as such, it should be included in any claim for costs; it should not have been claimed as out of pocket expense and I reject that claim. I also reject the Griffiths v Kerkemeyer claim for the reasons I have earlier indicated in respect of the first plaintiff.

There is even less evidence on the issue of economic loss in the case of this plaintiff than in the previous matter. Paragraph 9 of the pleadings alleged: “The plaintiff lived largely on subsistence farming at an annual income of K600.00 but decreased by over 60% after the accident”. That allegation has certainly not been substantiated. In closing submissions, the plaintiff’s lawyer plucked a figure of K520 per annum “out of the air”, assumed it appropriate for the next thirty-one years, discounted at 3 per cent per annum and submitted that this plaintiff was entitled to K11,418 under this heading. I think the clearly preferable view is that the plaintiff has demonstrated no economic loss and I would adopt the approach, as suggested by some of the cases to which I earlier referred when dealing with the claim under this heading in respect of the first plaintiff, of making an allowance for economic loss when arriving at a figure for general damages.

On the question of general damages, the plaintiff’s lawyer suggested that this plaintiff was entitled, on the basis of a 50-60 per cent permanent disability of the left leg, to general damages of between K30,000 and K35,000. He sought to support his submission by reference to the decision in Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294, where Los J awarded K35,000 in respect of an injury which rendered a plaintiff’s left arm “totally and permanently useless”. I find that decision of little assistance in the present case, being neither comparable nor appropriate.

For the defendant, reference was made to the decision in Alfred Moia v The Independent State of Papua New Guinea [1988] PNGLR 299; Kawa Oroeala v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645 and Kuli Gokam v The State (N826, 1990, unreported). The first of these decisions involved a plaintiff who experienced injuries, not dissimilar to the present plaintiff’s, to both legs which caused Bredmeyer J to award K20,000 general damages. Oroeala’s case gave rise to an assessment of K9,500 for general damages for a 25 per cent loss of function of a leg which was injured not unlike the plaintiff’s injury. Kuli Gokam’s case resulted in a K16,000 award for more serious injuries and includes helpful references to other cases. I do not think that percentages are a useful means of assessment in the present case. However, I would indicate that this plaintiff’s permanent disability to his left leg cannot, on any view, exceed 10 per cent. Having regard to the plaintiff’s evidence, the medical evidence and making an allowance for economic loss I would assess general damages at K9,000. In reaching that figure I would merely note the difficulties attending the assessment of compensation awards where the plaintiff’s evidence is unreliable by reason of exaggeration.

Attributing K6,000 of that amount to the period to date suggests interest of K600 calculated as K6,000 at 8 per cent per annum from the date of the writ (23 October 1989) to today, a period of fifteen months.

From the total amount of K9,600 a 30 per cent reduction for contributory negligence gives K6,720. Hence, I give judgment to the plaintiff in the amount of K6,720 plus costs.

QUANTUM — ENOS KOLITA

The third plaintiff, aged twenty-seven, was educated to grade 6 standard at a community school but had no subsequent work experience. His post-accident chest pain and fever subsided within a few days without after affects. His principal injury was a closed fracture of the right tibia, midshaft.

Reports from Vunapope Hospital dated 10 May 1987 and 30 June 1988 suggested hospitalisation of less than one month (in stark contrast to the six months which he claimed in his evidence-in-chief). Upon discharge he was periodically treated on an outpatient basis. It would appear that this plaintiff wore a plaster cast for some six months after the accident followed by a period of walking with the assistance of crutches. I quote the concluding passages of the latter report:

“Today he is walking well and has no complaints. There is a thin elliptical scar, 4 cm in its longest diameter, over the junction of the middle and lower thirds of the right leg, the site of the ulcer above-mentioned. The bones are soundly united in excellent position with minimal shortening and with little swelling at the fracture site. There is noticeable atrophy of the quadriceps thigh musculature.

Mr Kolita has not had regular employment either before or since the accident.

He has made an excellent recovery from a serious injury, but as the scar is liable to damage and as the relatively weak quadriceps muscle predisposes to some knee joint instability I would award him 5% permanent disability.”

In his evidence this plaintiff claimed that walking uphill and downhill caused him pain and that, after walking a long distance, he has to sit down and rest. He also suggested that he can no longer sit cross-legged but has to sit with his legs straight and that he can no longer climb. However, Lawrence Stanley and Steven Toirima gave evidence of seeing this plaintiff, after the accident, playing touch rugby and sitting cross-legged.

So far as his evidence on economic loss is concerned, this plaintiff claims that prior to the accident he carried wood and coconuts and worked on copra to get money which he assessed at K20 to K50 per month although he did indicate that the amount varied, saying “it depends” which answer was, unhelpfully, not pursued by his lawyer. In the course of cross-examination he conceded that he only worked on copra prior to the accident, claiming it was his father’s copra and that his mother and father had done the work after the accident whereas prior to the accident such work was carried by he and Gerson Tovue. Of course, those claims must be viewed against Gerson Tovue’s denial that their father had any copra or cocoa and the failure to call the father who was identified as being present in court.

The plaintiff’s lawyer goes to the 3 per cent tables and submits a present value for economic loss of K12,918 which is clearly divorced from both the reality of the plaintiff’s low level of continuing disabilities and the questionable nature of his evidence. On behalf of this plaintiff reference was made to the decisions in Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557, Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573, Kama Pupti v Thomas Kudjip [1986] PNGLR 283 and Maka Kewe v Thomas Kudjip [1986] PNGLR 279. I think the only sensible course in the present case, amply supported by earlier decisions, is to make some allowance for economic loss within an award of general damages which I do on a historical, closed-period basis since I am not satisfied that the plaintiff has any continuing loss of earning capacity.

Dr Tuvi’s report noted a thin scar at the fracture site which he considered “liable to break down easily if damaged”. He also noted atrophy of the quadriceps muscle and suggested this would give weakness in the leg and instability to the knee joint although he conceded in cross-examination that physiotherapy and exercise would remedy that muscle wasting. He assessed a 20 per cent permanent disability of the right leg which he explained in his evidence as not being based upon any tables but rather upon his clinical judgment to the effect that he considered this plaintiff was 20 per cent less able to do what he did before the accident. Such an assessment is necessarily dependent upon the correctness of what the plaintiff told him upon examination on 6 October 1988.

I consider the assessment of Dr Parnis in the report dated 30 June 1988 from Vunapope Hospital to be realistic and I consider a 5 per cent disability and an award of general damages of K5,000 reasonable in the circumstances. In reaching this figure I have considered the decisions in Anis Wambia v The Independent State of Papua New Guinea [1980] PNGLR 567 and Kar Kirai v The Independent State of Papua New Guinea [1990] PNGLR 563 to which counsel for the defendant referred me and to the judgments in Kama Pupti v Thomas Kudjip [1986] PNGLR 283, Maka Kewe v Thomas Kudjip [1986] PNGLR 279 and Lus Minjuk v The Independent State of Papua New Guinea [1988] PNGLR 302 to which counsel for the plaintiff referred. The latter group of decisions were disabilities significantly greater then those suggested by the present case and my award of general damages is proportionally lower due to the clearly lower level of permanent disability in the present case.

Of the amount of K5,000 for general damages, I think that K4,000 should be regarded as attributable to general damages to date and I award interest of K400 calculated as K4,000 at 8 per cent per annum for the fifteen month period from the date of the writ (23 October 1989) to date. There will, for reasons which I have earlier given, be no deduction for contributory negligence so that this plaintiff is entitled to judgment in the amount of K5,400 (being K5,000 general damages and K400 and interest thereon) plus costs.

Awards of damages so made

Lawyer for the plaintiff: Sialis Tedor & Associates.

Lawyer for the defendant: Young & Williams.