Nim (as Next Friend of Albert Kanai) v The State [1984] PGLawRp 447; [1984] PNGLR 232 (24 September 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 232 - Koni Nim as Next Friend of Albert Kanai v The State 

[1984] PNGLR 232

N481

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KONI NIM AS NEXT FRIEND OF ALBERT KANAI

V

PAPUA NEW GUINEA

Waigani

Bredmeyer J

16 March 1984

24 September 1984

INFANTS AND CHILDREN - Sanctioning of settlements - Practice and procedure on - Common law matters.

PRACTICE AND PROCEDURE - National Court of Justice - Infants and children - Sanctioning of settlements - Matters to be put before the court - National Court Rules, O. 5, rr. 28, 29, 30.

Held

In proceedings to sanction settlements involving compromises on behalf of infant plaintiffs in common law actions pursuant to the National Court Rules, O. 5, rr. 28, 29 and 30, the following practice should apply:

N2>(a)      an opinion on liability (if in issue) and quantum should be submitted to the court: this opinion must be from a lawyer of standing and experience in the relevant area of law and the lawyer need not be independent;

N2>(b)      if counsel’s opinion on liability or quantum has been obtained it should be submitted to the court;

N2>(c)      although a second opinion should not normally be necessary, the judge may, in an appropriate case, request that a second opinion be obtained or that further information be placed before him;

N2>(d)      where a second opinion is requested it should be from an independent lawyer of higher standing and experience in the relevant area of law than the lawyer from whom the first opinion is obtained;

N2>(e)      where a second opinion is requested it should be an independent discussion of the evidence and the issues, and, in personal injury cases, of appropriate awards of damages under the different heads of damage.

Cases Cited

Birchall; Wilson v. Birchall; Re [1880] UKLawRpCh 252; (1880) 16 Ch. D. 41.

Gibb v. Conboy and Kumbak Plantations Pty Ltd [1977] P.N.G.L.R. 311.

Monomb Yamba v. Maits Geru [1975] P.N.G.L.R. 322.

Notice of Motion

This was a motion for approval of a settlement on behalf of an infant plaintiff in an action claiming damages for injuries arising out of a motor vehicle accident.

Counsel

J. Shepherd, for the plaintiff.

Cur. adv. vult.

14 September 1984

BREDMEYER J: The plaintiff in this case is the next friend of Albert Kanai who, in March 1979 when he was aged five-and-a-half, was injured in a motor vehicle accident and suffered a compound fracture of the skull. The plaintiff has applied to the court for approval of a compromise of the action of K2,749.10 made up of K2,500 general damages and K249.10 special damages. The notice of motion seeks an order that the K2,500 be invested by the Registrar of this Court until Albert attains twenty-one years and that K249.10 be paid out forthwith to Angau Memorial Hospital. Filed in support of the application is a two-page opinion from Mr Peter Kopunye, the officer-in-charge of the Public Solicitor’s Office in Lae, three medical reports, an affidavit of the next friend and an affidavit of the Public Solicitor. The relevant part of the Public Solicitor’s affidavit reads:

“On a full consideration of the facts of the case and the written opinion of Mr Peter Kopunye I am of the opinion that the settlement offer of K2,500 general damages plus K249.10 special proven damages be accepted as being in the best interest of the plaintiff/applicant. I therefore recommend that the settlement offer be approved and endorsed by the court.”

The motion for approval of the settlement came on before Kaputin J. on 16 March 1984, who refused it on the following grounds:

“I refused to entertain this application on the ground that the legal opinion approving the compromise of settlement was prepared within Public Solicitor’s Office. I was not questioning the independence of the solicitors within the Public Solicitor’s Office. I consider that outside opinion should be sought not only to assure the public of independence as seen from outside but that as a matter of professional practice and ethics that should be done. Further it is of fundamental importance that the court has a duty to see that the client gets the legal opinion through strict professionalism, and not as a matter of convenience because the Public Solicitor’s Office has no funds to pay for an outside opinion. I am sure costs for this can be paid from the settlement moneys — and it would be less if National law firms are briefed to do it.”

A week later the same motion was argued before me. No new evidence was put before me but I was referred to the decision of Kearney J. in Gibb v. Conboy and Kumbak Plantations Pty Ltd [1977] P.N.G.L.R. 311.

In Monomb Yamba v. Maits Geru [1975] P.N.G.L.R. 322 Frost C.J. considered that the National Court’s powers to approve an infant settlement came from the Constitution, s. 158(1), which says that the judicial authority of the People is vested in the National Judicial System, and s. 166(1) which states that, subject to the Constitution, the National Court is a court of unlimited jurisdiction. To these I would add s. 155(4). These sections may be the ultimate foundation of the court’s power but the more immediate source is O. 5, rr. 28, 29 and 30 of the National Court Rules 1983. If a settlement is not approved it is not binding on the disabled person.

This case raises an important question. Before approving a settlement involving an infant, or, for that matter, any disabled person, should the court require a second legal opinion, that is, in addition to the opinion of the lawyer who has the carriage of the matter? If the answer is “yes”, should the second opinion come from a lawyer in another firm, or an independent barrister, or a lawyer employed in the same firm, or a partner of the same firm? Before attempting to answer those questions I propose to refer to some relevant authorities.

On 1 April 1958, Mann C.J. issued a direction on the practice to be followed for the approval of infant settlements. He said that he issued it after consultation with the other judges. I am indebted to Mr G. Lay of Young & Williams for having drawn this direction to my attention and for giving me a copy. The Chief Justice said as follows:

“The requirements of the law are readily ascertainable. It must be borne in mind that the infant has a legal right to a cause of action and to have that cause of action determined in due course. He has neither a legal right to a compromise nor the legal capacity to make one, and his lack of capacity involves the consequence that no settlement can displace the cause of action without the sanction of the court. The court must have before it proper material to enable it to arrive at an affirmative conclusion of fact that the proposed compromise is for the benefit of the infant. If this conclusion is reached and the compromise sanctioned it becomes binding upon all parties. There is no presumption that a settlement, even for a substantial figure, is for the infant’s benefit.

In order to reach a conclusion that the compromise is in fact for the benefit of the infant, the court or judge will consider all circumstances which in the particular case appear to be material. Usually those will include the probable chances of success or failure in the action and the financial consequences: the amount which may reasonably be expected to be awarded and recovered if the action is successful: and any circumstances which may be likely to prevent the action from being properly or adequately presented at trial (not being due to the resources or inclination of the next friend unless all other possible resources open to the infant are exhausted).

The court may rely on the opinion of counsel of standing and experience in arriving at a conclusion that a compromise is for the benefit of an infant, but in many cases in the Territory a judge will have to be in a position to form his own independent judgment on the settlement.

The court, even if of opinion that the settlement is for the infant’s benefit, will not sanction it without the express consent of the next friend or guardian and the approval of the infant’s legal advisers: see In re Birchall; Wilson v. Birchall [1880] UKLawRpCh 252; (1880) 16 Ch. D. 41. If there is any disagreement on the question, the next friend or guardian may be removed and replaced if upon investigation the refusal to consent appears improper, but the court will insist that all parties responsible at the time of the application approve of the compromise before sanction will be given.

The age of the infant is another important consideration and if able to understand the matters involved the infant should make a separate affidavit giving his own views and reasons. In some cases in England the infant is required to be separately represented by counsel and in cases where the infant is not considered of sufficient age to hold a firm independent opinion, the assistance which can be rendered by independent counsel representing the infant’s point of view becomes increasingly important.

The conditions prevailing in the territory may give rise to special considerations but too much stress should not be laid upon geographical considerations, since this Court is prepared to consider applications for evidence to be heard in any of the large number of centres visited by the court, and since there are no civil juries there is little if any disadvantage in having evidence taken at different times and places, or in having the evidence of witnesses in Australia or elsewhere taken on commission. There is no reason why litigation in the Territory should be conducted less expeditiously or less efficiently than elsewhere, and questions of expense alone afford poor reason for compromise. Where this may amount to a motive, special scrutiny is called for to ensure that the infant’s own interest is not being sacrificed, and separate and independent advice from counsel under no obligation to the persons providing the money for litigation is called for.

I have consulted my brother judges who agree that the practice which ought to be followed, subject to any special direction which may be given in particular cases, is as follows:

(1)      If the action is ready for trial or already before the court the fact of settlement should be announced in open court, and the terms of it, set out on paper, handed to the judge. No oral reference to the sums of money involved or other conditions or settlement should be made without the judge’s permission until the settlement is sanctioned. All necessary consents may be given in court if the persons concerned are present, and affidavits may be used in relation to those who cannot be conveniently called. Counsel may express their opinions in court. The judge may call for any oral or other evidence, or direct that any independent opinion should be obtained and either deal with the matter or leave it for subsequent application as may appear appropriate.

(2)      In any case a separate application may be made in court or in chambers. The solicitors representing the infant’s interest in the action have the carriage of the matter and a notice of motion or chamber summons should be served on the other parties to the action.

(3)      The application must be supported by affidavits by the solicitor representing the infant’s interest in the action, and by the next friend or guardian. A separate affidavit by the infant if of appropriate age and understanding should also be filed. These affidavits should not follow a single pattern but must give facts and conclusions from the several points of view of the deponents. The solicitor should disclose the extent to which he has investigated the case, the main facts and issues as he sees them, and show that he has fully considered the extent to which the case is supportable by independent or reliable evidence, and formed his own opinion as to the likely outcome both as to liability and damages. Where any difficulty is involved the solicitor should refer to any advice he has received or sought. Any opinion of counsel on material questions, together with the case upon which the opinion was given, should be exhibited but not served on any other party.

(4)      The affidavit of the next friend or guardian should set out the facts known to him, the age and circumstances of the infant, the advice he has received and his own conclusions showing what beneficial results for the infant would follow from the settlement of the action and what might result if the settlement were not carried out. The affidavit (if any) of the infant should deal with similar matters, and both should contain sufficient material to indicate whether the deponent sufficiently understands the issues involved to form a reasonable impression of what is involved in the action.

(5)      Medical evidence must be given by oral evidence or affidavit where it is desired to establish a fact relevant to the application, but where it is desired only to indicate what medical evidence (including opinions) is available to support the action in the event of trial, this may be treated as any other material evidence available in the action and either exhibited or referred to in the appropriate affidavit as may be appropriate. Medical evidence is of the utmost importance in cases of severe or permanent physical injury. No fair estimate of damage can be arrived at without full details of future earning power, capacity for normal activities and general prospects for the future, and a clear picture of all this must be available to the judge should he require it, and it must appear that all these matters have been fully taken into account by the practitioner who advises the settlement.

(6)      In all cases any material which might prejudice or embarrass the trial of the action should not be set out on the face of any affidavit but if it is necessary to refer to any such material, all reference to it should be set out in a separate memorandum signed and exhibited to the appropriate affidavit and not be served on any other party but handed to the judge hearing the application. Disclosure of material of this kind can best be avoided by exhibiting the opinion of independent counsel of suitable standing and experience in the class of action in question. It may not be practicable to obtain a suitable opinion in the Territory in all cases, and it may often be found more suitable to obtain the opinion of counsel practising in Australia based on experience gained there. If it is not practicable to obtain a suitable opinion at all the judge may find it necessary either to appoint an officer (such as the Registrar) to investigate the case or conduct a full investigation himself. This last course may result in a judge directing that the action, if it proceeds to trial, be adjourned and heard before another judge.

(7)      Reference to verdicts given in other cases here or elsewhere ought not to be used as an indication of a probable verdict, but may be used as a test of the reasonableness or otherwise of a compromise, depending on the chances of success.

(8)      Where the compromise includes sums to be paid to the next friend or guardian and sums to be paid for costs, special care is called for to ensure that the apportionment is fair to the infant and based on proper considerations and independent advice. The basis adopted should be fully disclosed and justified and the material should be adequate to enable the court to form its own view of a proper apportionment.”

In 1977 an application to approve an infant settlement came before Kearney J. in Gibb v. Conboy and Kumbak Plantations Pty Ltd [1977] P.N.G.L.R. 311. The application was to approve a settlement of damages for personal injuries sustained in a motor vehicle accident. The only affidavit in support of the application was that of Mr G. Evans, a salaried solicitor employed by the firm of Gadens which acted for the plaintiff. There was no affidavit by the next friend. The judge said the following at 312:

“On 22 September 1977, the parties appeared before me, the plaintiff seeking approval of a proposed compromise of the action. In support thereof, the plaintiff relied solely upon an affidavit by Mr. Evans, the solicitor for the plaintiff.

I should say at the outset that it is clear that Mr. Evans has examined the law and the facts carefully, in reaching his conclusion that the proposed compromise is for the benefit of his client.

However, I adjourned the matter until today because it appeared to me that, in considering whether to approve a compromise of an infant’s claim, something more than an affidavit by her solicitor might be necessary. In Ping Lokawa v. Tokowa Kore and Anor (Unreported judgment of Kearney J. of 30 July 1976), I dealt generally with the question of obtaining the approval of the court to a proposed compromise of an infant’s claim. As far as I am aware, it is the common practice of this Court to require for its assistance when considering this question, the impartial opinion of independent counsel that the terms of the proposed compromise are for the benefit of the infant. Because of the small numbers in the profession here I consider that the opinion of another member of the firm acting for the infant is sufficient to satisfy this requirement, though this be contrary to the practice in some other places, for example, in South Australia: see Pfitzner v. Sergeant [1941] SAStRp 52; [1941] S.A.S.R. 286. This requirement of an independent opinion is in addition to the affidavits to be sworn respectively by the solicitor for the infant and the next friend, who is himself no mere cypher, expressing their personal opinions that, having gone carefully into the matter, the compromise proposed is for the benefit of the infant.

These requirements appear to accord with those of long standing, in other similar jurisdictions: see In re Birchall; Wilson v. Birchall [1880] UKLawRpCh 252; (1880) 16 Ch. D. 41 per Jessel M.R. at 43.

Accordingly, I adjourn the present application sine die in order that the opinion of independent counsel and an affidavit by the next friend may be obtained.”

Kearney J. in that case required the “impartial opinion of an independent counsel” that the compromise was for the infant’s benefit, and said that because of the small numbers, an opinion from “another member of the same firm acting for the plaintiff” was sufficient to satisfy that requirement. The first phrase “impartial opinion of an independent counsel” suggests an opinion from an independent barrister, and the second phrase “member of the same firm” suggests a partner of the firm. Mr G. Evans was a salaried lawyer employed by a firm; he practised before the court in the common law field. I have searched the file (W.S. 103 of 1972 (N.G.)) and I can say that the second opinion which was produced and accepted by Kearney J. after the reported ruling was of a Mr D. McNair who was a salaried solicitor employed by the same firm. A search of the admission roll shows that he was then in his second year of practice after his initial admission in New Zealand. I mean no ill-will or discourtesy towards him but his one-and-a-half page opinion cited no new facts, authorities or comparable verdicts and appears to be a pr‚cis of Mr Evans’s five-page opinion. I am unaware if Mr McNair practised in the common law field of law. I recall him as a conveyancer but am unaware whether he also did common law work. Be that as it may, I fail to see how an opinion from a salaried lawyer employed in the same firm is independent. Obviously a partner in the firm could direct the salaried lawyers to accept the defendant’s offer and to prepare opinions justifying the offer as in the best interests of the infant.

I quote extensively from the English practice as it was prior to our Independence. I quote from Supreme Court Practice 1976 the notes to O. 80, rr. 10 and 11, pars 80/10 to 11/4 and 80/10 to 11/5:

“Practice on Compromise or Settlement

N2>(a)      Infants. — In the Ch. D., applications under Rule 11 for the approval of the Court are made in Chambers, and are heard by the Judge; the Master should not sanction any compromise arrangement or transaction (see para. 3 of Memorandum as to Powers of Chancery Masters, Practice Note (Chancery Division), [1960] 3 All E.R. 497). The practice is to require, not only that the compromise should be assented to by the next friend or guardian of the infant, but that his solicitor should make an affidavit that he believes the compromise to be beneficial to the infant, and that his counsel should give an opinion that he considers it to be so (see per Jessel, M.R., in Re Birchall, Wilson v. Birchall [1880] UKLawRpCh 252; (1880), 16 Ch. D. 41 at p. 43). The Court, however, will consider for itself whether or not the compromise proposed will be for the benefit of the infant; but it cannot force a compromise upon an infant against the opinion of his advisers or the disapproval of the next friend or guardian (ibid.. pp. 42, 43; see also Re Ley’s Trusts, Somerset v. Ley, [1964] 1 W.L.R. 640; [1964] 2 All E.R. 326). The jurisdiction to approve a compromise or settlement in the Ch. D. is exercisable whether or not the Court is in the course of executing a trust but only in relation to real disputes as to rights (see Chapman v. Chapman, [1954] UKHL 1; (1954) A.C. 429 per Lord Simonds at p. 445.

In the Probate Division, the practice laid down in Re Birchall supra, is followed: see Tristram & Coote’s Probate Practice, 20th ed. p. 547.

In the Q.B.D., applications under Rule 10 are made to a Master in Chambers and an appointment is taken before him in his private room. As the Master may prefer to hear the facts of the case, and the evidence (if any) before he is informed of the terms of the proposed compromise, the amount must not be stated in the summons (see M.P.D. 33(1), Vol. 2, Part 4, A, infra).

It is a matter of very great responsibility for all concerned, including counsel, solicitors, next friends and guardians ad litem to express a view on whether the terms of a proposed compromise are in the interests of a minor, and the Court relies heavily on all those advising a minor for assistance in deciding whether the compromise is for his benefit (see per Megarry J. in Re Barbour’s Settlement; National Westminister Bank Ltd. v. Barbour [1974] 1 All E.R. 1188 at p. 1191).

On the return day, the solicitors (and, in exceptional cases, counsel) for the parties attend.

The first question to be considered is that of liability; the Master should be told whether the defendant admits or does not dispute liability, and if he does dispute liability, whether and to what extent such liability can be established. For this purpose, in accident cases, the circumstances of the accident should be briefly described. Each party should put his version before the Master, who should be told the age (and occupation) of the infant, the date and place of the accident, what evidence can be adduced and what witnesses can be called on behalf of the plaintiff and the defendant, if there are any police reports or notes of evidence or depositions in any criminal proceedings or in an inquest they should be produced or referred to, and, if there has been any prosecution, against whom and with what results. If counsel has advised on liability, his opinion should be placed before the Master. In all, the Master should be put in possession of all the available material in the case, so as to enable him to form his own opinion as to the plaintiff’s chances of success in the action, as to the probable extent of such success, and as to the degree or percentage of contributory negligence on the part of the plaintiff or the deceased.

The second question to be considered is that of the quantum of damages. For this purpose, in accident cases, there should be placed before the Master medical reports of both sides describing the nature and extent of the plaintiff’s inquiries, and their probable effect on the general health, enjoyment of amenities and earning power of the infant. The medical reports should be brought up to date. A list of the items making up the claim (if any) for special damage should also be produced. In actions under the Fatal Accidents Acts, it is essential to inform the Master of the age, occupation and earnings of the deceased, the ages of the widow and the dependent children, the amount (if any) of the deceased’s estate, and the extent to which his widow and children were ‘dependent’ upon him for their support, and any other facts which go to show what is the pecuniary loss.

In considering whether to approve a settlement, the question before the Court is, not what amount of damages should be or would have been awarded to the plaintiff on the trial of the action, but whether the settlement itself is a reasonable one, and is for the benefit of the infant, having regard to all the circumstances of the case, including the risks of litigation, the desire of the parties to settle, and the disinclination of the plaintiff to go to trial. If counsel has advised on the reasonableness or otherwise of the settlement, his opinion should be placed before the Master, who must, however, form his judgment whether to sanction the settlement or not. In a case where it appears that the plaintiff may be wholly unable to prove that the accident was due to the negligence of the defendant, acceptance of a comparatively small sum paid ex gratia may be properly sanctioned; and where the plaintiff may be in difficulties either in establishing liability on the part of the defendant or in resisting a finding of contributory negligence on his own part or on the part of the deceased, the Court may be ready to sanction the payment of a much smaller sum in settlement than would have been awarded as damages on full liability.

If the Master does not feel entirely satisfied with the proposed settlement, he may (and often does) adjourn the summons to give the parties a further opportunity to negotiate and possibly agree upon an increased sum by way of settlement. A fresh appointment is made before the Master for the adjourned hearing.

The general practice is that the Master does not require an affidavit, but if the case is an exceptionally difficult one either as to liability or as to amount, the Master may admit or may require an affidavit by the plaintiff’s solicitor on the lines of the practice in the Ch. D. (see Re Birchall [1880] UKLawRpCh 252; (1880), 16 Ch. D. 41).

The approval to the settlement of the next friend should in all cases be produced to the Master.

The Master does not generally require the attendance of the plaintiff or the next friend, though they may of course attend, but in the more difficult type of case, e.g., where the infant has sustained facial injuries or other cosmetic blemishes, the Master may wish to see the plaintiff before approving the settlement.”

Although I have quoted from the Supreme Court Practice 1976 the notes remain unaltered in the 1982 edition. There are two important differences between the English practice on approving an infant settlement in the Chancery Division and in the Queen’s Bench Division both of which reflect the greater difficulty of equity cases. Chancery settlements must be approved by a judge and not a master and the court requires two opinions in support, one from the solicitor and one from a barrister, whereas only a solicitor’s opinion is normally required for a common law settlement.

The authority cited for the two-opinion rule in Chancery settlements is Re Birchall; Wilson v. Birchall [1880] UKLawRpCh 252; (1880) 16 Ch. D. 41. It seems that the practice commended in that case has remained unaltered since that date. That was a case in which the court was asked to approve the settlement of a dispute over a will on behalf of infant beneficiaries. Sir George Jessel M.R. gave a short judgment and the two other members of the court of appeal concurred. He said the practice was that the compromise should be assented to by the next friend or guardian of the infant, and his solicitor and his counsel should both swear affidavits that they consider the compromise to be beneficial to the infant. “If the opinion given is only that of the junior counsel and there is a leader, I ask the leader in court whether he agrees with the junior’s opinion and this was also Lord Romilly’s practice” (at 43).

The duties imposed on counsel, and on the solicitor to place before him all relevant matters, are onerous and must be discharged carefully as was stated by Megarry J. in Re Barbour’s Settlement; National Westminister Bank v. Barbour [1974] 1 All E.R. 1188 at 1191:

“When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned. The solicitors must see that all the relevant matters are put before counsel, that the right questions are asked, and that the guardian ad litem or next friend of the minor fully understands and weighs counsel’s advice when it is given. Counsel has to discharge what in my judgment is one of the most important and responsible functions of the Bar, that of helping those unable to help themselves; and the guardian ad litem or next friend must understand the advice given and carefully weigh the advantages of the proposed compromise to the minor against the disadvantages.”

That case illustrates the judge’s words. The trustee was a bank and the judge considered that the duties of counsel and solicitor were not fully discharged in that one of the proposed terms of settlement which was a substantial increase in the trustee’s remuneration was clearly not for the infant’s benefit and that counsel for the guardian ad litem should have clearly said so. The judge initially refused to approve the settlement.

The approval of an infant settlement in an equity matter arising out of a will or settlement must be very rare in Papua New Guinea. I have not been asked to approve one in four years on the Bench. Most nationals do not make wills and very little property is settled on trust. Only eighteen wills were probated in our court in 1983. But if one did come before me for settlement I would follow the English practice. Equity is a difficult and specialised area of law and I would require an opinion from an independent lawyer of standing and experience in equity justifying the settlement on behalf of the infant in addition to the opinion of the solicitor and of the infant’s next friend. Given the present state of the legal profession, counsel’s opinion would almost certainly have to come from a barrister specialising in this field of law overseas.

The most common form of infant settlement in Papua New Guinea is that of a common law action for damages arising out of injury or death caused by a motor vehicle accident. They are approved here by a judge and not a master. I believe that here we can learn from the English practice, that with some modifications to suit our special conditions, it is appropriate and applicable to the circumstances of this country and that we should follow it. I note from the English practice that it is only in exceptional cases that counsel (that is barristers from the independent bar) attend the hearing of the application to approve the settlement. I note also that where counsel has given an opinion on liability or quantum then it should be placed before the master. This clearly implies that a counsel’s opinion is not essential. The English practice is that the plaintiff’s solicitor always gives his opinion normally in an oral form in discussion with the master. The master reads all the material placed before him and asks questions about liability and quantum of the solicitor in the process of forming his own view whether to approve the proposed settlement or not. In difficult cases the solicitor’s opinion is required in written form as part of an affidavit. Our special conditions are that we have a fused profession in Papua New Guinea and thus do not have any lawyers practising as barristers in the English sense. Nevertheless there are a number of lawyers in Papua New Guinea who specialise in common law work and advocacy and are experts in the personal injury field. We also have a practice of requiring written opinions in all cases, rather than oral ones, and I think we should continue with that practice.

I set out the practice I propose to follow on common law infant settlements.

(1) ONE OPINION ALWAYS NECESSARY

I consider that the court should always receive an opinion on liability (if in issue) and quantum from the lawyer who acts for the infant. This opinion should be from a lawyer of standing and experience in this field of law. It should not be from a provisional admittee or from a junior lawyer working in that firm. If a Port Moresby firm acts for the plaintiff, the opinion should normally be from the most experienced common law lawyer in that firm whether he is a salaried man or a partner. If a junior inexperienced lawyer works on the case he should only prepare a draft opinion and the opinion submitted to the court should be from a more senior man — from a lawyer of standing and experience in this area of law. If the infant is represented by a firm of lawyers with a branch office in a provincial town, or by the Public Solicitor who has branches in the major provincial towns, I would accept an opinion by the lawyer-in-charge of the branch office provided that he is a person of standing and experience in this field of law.

I regard the standing and experience of the lawyer who submits the opinion as of vital importance, not his position. A salaried lawyer in a firm or a lawyer in the Public Solicitor’s Office may have experience and standing in this area. of law whereas a partner in the firm or the Public Solicitor himself may not He may never have argued a personal injury suit. The more experienced the lawyer is who gives the opinion, the more likely it is that the judge will accept it and less likely that he will request a second opinion.

(2) A SECOND OPINION NOT NORMALLY NECESSARY

Where the lawyer who has the conduct and carriage of the matter has obtained a counsel’s opinion on liability or quantum, it should be submitted to the court. The lawyer may wish to obtain such an opinion because of some special difficulty in the case or because of the grave injuries involved. But a second opinion should not normally be necessary because common law actions for damages are a less recondite field of law than equity matters. A judge may however request a second opinion. He may not be satisfied that the lawyer submitting the opinion is of sufficient standing and experience in this field of law, or, even if the judge is satisfied on that matter, he may not be satisfied on the material before him that the proposed settlement is for the infant’s benefit. If that occurs the judge may request the plaintiff to obtain a second opinion, or he may adjourn the application so that further information can be placed before him, or so that the infant can be brought before the court and the judge can see the injuries for himself, or so that the parties can renegotiate the settlement at a higher figure.

(3) WHERE A SECOND OPINION IS REQUIRED IT MUST COME FROM AN INDEPENDENT LAWYER

Where the judge requests a second opinion it should not come from a lawyer in the same firm. It should come from a lawyer from another firm in Papua New Guinea or from a barrister who practices in this field overseas. It should come from an independent and a “higher” source, rather like a doctor in general practice obtaining a second opinion from a specialist. If the first opinion has come, as I believe it should have come, from the most experienced common-law lawyer in that firm there is no one left in that firm who can give a more competent opinion. A Port Moresby firm or a firm with provincial branch offices may have several persons of experience and competence in this area of law, but I consider that the second opinion, if requested or obtained, should in any event come from an independent source. The court’s responsibility is a grave one, to protect the interests of an infant who is incapable of protecting himself. The infant has a lawyer to represent him and to protect his interest. At the same time the lawyer has his own interest to pursue. The lawyer may be overwilling to accept the defendant’s offer of settlement, although objectively assessed it is too low, because he wishes to conclude a long outstanding matter and to collect his fees. There is a great benefit in an outside, independent mind assessing the problem. I consider that if a second opinion is required it should come from an independent source. And it should not be a précis of the first opinion or in the form “I have read the opinion of Mr So and So and agree with it”. It should be an independent discussion of the evidence and the issues and of appropriate awards of damages under the different heads of damage.

(His Honour then went on to approve the proposed settlement.)

Ruled accordingly.

Lawyer for the plaintiff: Public Solicitor.

Lawyer for the defendant: State Solicitor.