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Administration of Papua New Guinea v Carroll [1974] PGSC 1; [1974] PNGLR 265 (11 April 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 265 - The Administration of Papua New Guinea v Carroll

[1974] PNGLR 265

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ADMINISTRATION OF PAPUA NEW GUINEA

CARROLL

Port Moresby

Minogue CJ Frost SPJ Clarkson J

29-30 October 1973

11 April 1974

DAMAGES - Assessment of general damages - Pain and suffering - Economic loss - Expatriate Australian living in Papua New Guinea - Whether different level of material community standards in Papua New Guinea to be taken into account - General principles discussed.

The assessment of damages for pain and suffering in respect of an Australian expatriate resident in Papua New Guinea should be moderated by reason of the different level of material community standards in Papua New Guinea, and the figure awarded should accordingly be lower than the assessment which would be arrived at by an Australian court.

So held by Frost S.P.J. and Clarkson J., Minogue C.J. dissenting.

Principles relating to the assessment of damages for personal injuries considered. Circumstances in which award of $65,000 for general damages reduced to $50,000 considered.

Cases Referred To

Tzouvelis v. Victorian Railways Commissioners, [1968] VicRp 13; [1968] V.R. 112; Skelton v. Collins [1966] HCA 14; (1965-1966), 115 C.L.R. 94; Arthur Robinson (Grafton) Pty. Limited v. Carter [1968] HCA 9; (1967-1968), 41 A.L.J.R. 327; Planet Fisheries Pty. Ltd. v. La Rose & Anor. [1968] HCA 62; (1968), 119 C.L.R. 118; O’Brien v. Dunsdon (1965-1966), 39 A.L.J.R. 78; Singh v. Toong Fong Omnibus Co. Ltd., [1964] 1 W.L.R. 1382; H. West & Son Ltd. v. Shephard, [1963] UKHL 3; [1964] A.C. 326; Fletcher v. Autocar Transporters Ltd., [1968] 2 Q.B. 322; Wise v. Kaye [1961] EWCA Civ 2; [1962 1 Q.B. 638; Kohnke v. Karger, [1951] 2 K.B. 670; Warren v. King, [1964] 1 W.L.R. 1.

Appeal

The respondent (plaintiff) an expatriate Australian bank officer had been awarded the sum of $65,000 for damages for personal injuries suffered in a motor vehicle collision on 30th December, 1971. The appellant (defendant) appealed against the amount of the award.

Counsel

G. P. M. Dabb, for the appellant (defendant).

R. B. Wood, for the respondent (plaintiff).

Cur. adv. vult.

11 April 1974

MINOGUE CJ: The Administration appeals against a judgment given in favour of the respondent for $65,000 in his action for damages for negligence. Liability was admitted and the appeal is as to amount only.

The respondent a man aged 39 years and 4 months at the time of the trial of the action in June, 1973 received very severe injuries in a collision between a motor cycle ridden by him and a vehicle driven by a servant of the appellant on 30th December, 1971. The learned trial judge assessed his damages as follows:

For pain, suffering and loss of amenities	$20,000
For wages to date (including some general damages and out of pockets)	7,000
For loss of earning capacity to 30th September, 1975 (this date being that which his Honour estimated as being that on which the respondent would terminate his employment in New Guinea)	2,150
For time spent in seeking employment in Australia	1,350
For future loss of earning capacity on return to Australia	32,300
	$62,800

He then went on to award what he described as a “global” figure of $65,000. No cavil was made at or argument directed to the three smaller amounts in this award but the appellant’s counsel submitted that neither of the two larger amounts could stand and that there was no legal justification for adding $2,000 to the sum of the individual amounts at which he had arrived.

As different considerations apply to each of these amounts attacked I shall deal with them separately.

The first and most difficult matter is the $20,000 component of the overall award. At the outset the appellant’s concession is to be noted that if this were the award of a Court in Australia although it may be regarded as high and indeed very high, it would probably be sustainable in an appellate court. The gravamen of his argument was that in Papua New Guinea different economic considerations apply and it is the duty of this Court to pay regard to those considerations and consequently to set a standard for damages of this nature appropriate to the economy of the country. That standard should be substantially lower than any standard found applicable in Australia.

The question of damages for non-pecuniary loss has bedevilled courts for a long time and has led to considerable divergencies in judicial reasoning and to a wide cleavage of opinion between the High Court of Australia and the House of Lords in England. I share the criticism of the late Sir John Barry in Tzouvelis v. Victorian Railways Commissioners[cccxxxvii]¹ that in recent years there has been a vain desire to introduce rationality into what is really an intuitive process and I along with him share the hope of Windeyer J. “... that some day the law will provide some better way of meeting the consequences of day-to-day hazards than by actions for negligence and a measuring of damages by unprovable predictions, metaphysical assumptions and rationalised empiricism.” —Skelton v. Collins [cccxxxviii]². But that being said the task remains for this Court to consider whether the learned trial judge has erred.

In the light of the appellant’s concession it is unnecessary to do more than briefly refer to the extent of the respondent’s injuries and the sequelae of those injuries, to the circumstances in which he came to Papua New Guinea and to the future that he faces both in this country and in Australia to which he will eventually return. He was unconscious on admission to hospital and remained unconscious and then semi-conscious for several weeks. He had a large open wound extending from the root of his neck through the sternum and into the left thorax. He had a depressed fracture of the left malar and a fractured mandible. This resulted in his suffering a degree of double vision and affection of the infra-orbital nerve, and he has been left with a large insensitive area in his face. In addition he had a compound comminuted fracture of the left femur, compound fracture of the left tibia and fibula and fractures of the right tibial and femural condiles. The appellant was hospitalized first in Port Moresby and then in early January, 1972 in Brisbane from which he was discharged on 25th May, 1972. He had to be re-admitted on 15th July of that year for a further operation, a bone graft to the left tibia.

He came to Port Moresby in December, 1970 under a contract with the Papua New Guinea Development Bank after having worked for many years as a bank officer with the Bank of New South Wales in Queensland. He much preferred country to city life and this preference allied with a personal tragedy in the death of a child led to his coming here. He was a good bank officer, worked hard here and was in line for promotion. In addition he enjoyed life to the full both as a sportsman and a family man. His wage rate in Papua New Guinea was considerably higher than that which he had been receiving in Queensland and as far as I can see it was his intention to stay here at least until he had saved enough for the purchase of a home. His prospects of employment were good for some years to come. He has been left with a number of quite severe disabilities and is far from the man he was. I need say no more than I would not disagree with the monetary estimate arrived at by the learned trial judge were this case heard in Australia.

Two things are clear from the mass of authority cited to us. First, that in Australia the authorities show that there is no conventional sum or conventional range upon which or within which the award of damages for particular classes of injuries should be confined. As Barwick C.J. said in Arthur Robinson (Grafton) Pty. Limited v. Carter [cccxxxix]³: “Comparisons with amounts awarded in other cases in near comparable or even in comparable circumstances ought not, in my opinion, to be used to achieve so called uniformity but merely used as an assistance in judging what in the community at or about the time the matter has to be decided is or has been regarded as fair: though even for this purpose I doubt that such comparisons have any great utility.” See also Barry J. in Tzouvelis v. Victorian Railways Commissioners [cccxl]⁴. The second is that assessment should be made having regard to the general standards prevailing in the community. As was said by the Court in Planet Fisheries Pty. Ltd. v. La Rosa and Anor.[cccxli]⁵: “It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully; to allow for differences between the circumstances of those cases and the circumstances of the case in hand”. And for example see also O’Brien v. Dunsdon[cccxlii]⁶ and Singh v. Toong Fong Omnibus Co. Ltd. [cccxliii]⁷.

The question remains what can be said to be current general ideas of fairness and moderation in Papua New Guinea. The appellant is in effect saying—indeed my recollection is that its counsel said specifically in argument—that the court being able to regard the sum awarded as appropriate to Australia should discount that sum by up to 50 per cent to accord with community standards in Papua New Guinea. This country is well advanced towards what is known as full localization. The Government’s Eight Point Plan aims at a movement towards more equal distribution of economic benefits including equalization of incomes among people. But this is a road along which the first few tentative steps are only now being taken. It is true that in many areas different economic considerations apply than those applicable in Australia—particularly for example in the wage sector of the economy. But such a generalization seems to me to be too wide and too imprecise to formulate the major premise of the argument the appellant seeks to develop. What is to be considered is what is fair and reasonable to award this particular plaintiff in the light of current general ideas of fairness and moderation. What is fair and reasonable will of necessity vary according to the plaintiff’s circumstances—and that variation may be so wide as to prevent the imposition or formulation of anything that could be called a norm.

On the one hand were a plaintiff to be reduced to little more than a vegetable with little or no awareness of life around him a very moderate sum indeed would be a fair award, be he a Papua New Guinean, Australian or whatever. If on the other hand he were a subsistence farmer whose life style was set in that mould and who had lost his mobility yet another figure would be arrived at to compensate for his inability to enjoy his work, his hunting and the society of his friends and clansmen. Yet again were the plaintiff a doctor or a lawyer living his life as an indigenous doctor or lawyer in this country and he became a paraplegic, a different sum would be regarded as fair and reasonable to compensate him for the loss of the rather more sophisticated and perhaps more expensive ability to enjoy more of life’s pleasures—particularly if he had the mental capacity to substitute an even more expensive manner of satisfying his intellectual and emotional needs. And what of the doctor who comes to Papua New Guinea as a matter of public spirit and service to work for a year in a remote village or hamlet intending thereafter to further a career in which he might seek the highest material rewards and a wide range of sophisticated enjoyment which may then be open to him? Could it be said to be fair and according to community moral values that he by the accident of being in this country should be deprived of that amount as to which in his own country there could be no question, i.e. a fair compensation to accord with his own needs.

Until 1973 overseas personnel (mainly Australian) were employed in all spheres of activity both governmental and non-governmental. Wages and salaries were being paid at somewhat higher rates than in Australia. Expatriates, as these people were and are called, lived at a standard in many cases higher than they would have achieved in Australia to which Papua New Guinea was closely bound economically. Of course there have been enormous changes in the situation but even now and for possibly some time to come there will be expatriate personnel required here who are accustomed to and will be paid the wherewithal to achieve a higher standard of living than Papua New Guineans will be able to afford generally in the foreseeable future. Much was made in argument of the tourist being injured here and qua damages for injuries having to take the country as he finds it. This may be so but the respondent and others of his ilk are in a quite different situation. He came here, inter alia, to improve his financial situation and to enjoy what to him was a better quality of life and to save for a future in Australia. In short, he came and was encouraged to come into a partially transplanted Australian environment. It is that type of environment which he has lost the ability to enjoy to the extent of his former capacity for enjoyment. It is in an Australian environment that he must make do as best he can to solace himself for his lost faculties. Although the other members of the Court in Skelton v. Collins[cccxliv]⁸ did not approach the question of damages for non-pecuniary loss on the basis of solatium I find with respect considerable force in the analysis of Windeyer J. in that case. In the circumstances of this country I would regard it as open to this Court to decide that his approach to the award of this type of damage should be adopted. However, in this case I do not think it necessary to go that far.

With respect I agree with what was said by Windeyer J. in Skelton v. Collins[cccxlv]⁹—“This Court must consider the question for itself; and all the more so, it seems to me, if the decision in England was reached after reference only to English decisions, not to the state of the law elsewhere, and seemingly to meet only economic and social conditions prevailing in England. And too what is said is less persuasive when law is as it were fluid and when the conditions which it is being developed to meet are not the same in England and Australia. The law of damages, especially damages for personal injuries, is of that kind. It is a branch of the law in which further developments and fresh refinements in the application of principles are still going on: and the backgrounds against which it operates are not the same in England and in Australia. Various circumstances, locally known as existing in any community, such as welfare services, pensions, hospital aid, sick pay, rates of wages and so forth, are taken into account directly or indirectly, deliberately or unconsciously, by judges and juries when assessing damages for personal injuries.” I would regard the law of damages for personal injuries as being in a fluid state here in Papua New Guinea and whilst undoubtedly the background against which it operates is not the same as those in either England or Australia or for that matter Hong Kong or Africa or the West Indies, yet there still remain many circumstances which may necessitate from time to time a consideration and taking into account of Australian conditions. That is to say that when looking at the particular circumstances of a plaintiff whose future does not lie in this country there may be cases where it is relevant to look at the environment where he is to live with his disabilities and diminished capacity for enjoyment.

I am mindful of the appellant’s argument that the court should not fall into the error of operating or applying community standards from elsewhere but that in my opinion is not what is happening here. The learned trial judge has expressed community values which have been in existence for some time. True it is to adopt the words of Windeyer J. (supra) that this is a branch of the law in which further developments and fresh refinements in the application of principles are still going on. In a case such as the present I would concede that were the respondent’s future to lie in this country some reduction might be called for. This to me is a case in which in my view the community would regard it as fair that the respondent be compensated for loss of amenities in the way in which he has been. Accordingly I would not vary the component of $20,000 under this head which the learned trial judge included in his award.

I turn now to the finding of the learned trial judge that the diminution in the respondent’s capacity to earn should be valued at $65 per week and assessed as a lump sum of $32,300. The appellant says simply that there was no evidence upon which his Honour could have made such a finding and after a careful scrutiny of the evidence I must agree with this contention.

My difficulty has been to discover any evidence upon which a figure can be arrived at for economic loss after September 1975. One intuitively feels that there must of necessity be such loss but the court is left almost completely in the dark as to how to go about calculating that loss. I have read what my brother Frost has said on this part of the case and whilst I think the evidence upon which he bases his conclusion is of a most tenuous nature, I also think that there is just sufficient to support that conclusion. Accordingly I would reduce the amount awarded under this head from $32,300 to $21,000.

As I have the misfortune to differ from my brothers on the first branch of this appeal and consequently on the order to be pronounced by the court I propose to say little about the appellant’s argument directed to the addition by the learned trial judge of $2,200 to the sum of the several amounts at which he arrived. Insofar as this amount contained a component attributable to economic loss it could hardly stand whatever view be taken of damages for non-pecuniary loss. However I would not regard the award of a “global” figure as wrong in principle and such an award (even by a judge sitting alone) it seems to me is strongly supported by what was said by Barwick C.J. in Arthur Robinson (Grafton) Pty. Ltd. v. Carter [cccxlvi]¹⁰.

The order of the Court will be that this appeal be allowed and in lieu of judgment for the plaintiff for $65,000 there be substituted judgment for $50,000.

FROST SPJ: It is unnecessary for me to refer further to the issues in this appeal and the facts which are set out in the judgment of the Chief Justice.

Upon the first ground relating to the trial judge’s assessment of the sum of $20,000.00 to be allowed for pain and suffering and loss of amenities the appellant’s counsel submitted in effect that whilst the award to the respondent, an expatriate Australian, could be supported by reference to Australian standards, the award was excessive having regard to the different economic conditions of Papua New Guinea, and in particular the lower level of wages, which required that the standard of damages should be much lower, and that that standard should be applicable to all persons living within the country. It is clear that circumstances such as social welfare services—or, it follows, the lack of them—and rates of wages are to be taken into account in assessing general damages. Skelton v. Collins[cccxlvii]¹¹ per Windeyer J. It is clear also that in making an assessment under this head a judge “will be aware of and give weight to current general ideas of fairness and moderation”. Planet Fisheries Pty. Ltd. v. La Rosa & Anor. [cccxlviii]¹², which must be related to the level of wages. The appellant’s counsel then pointed to the urban rate of wage, which is less than $14.00 per week, and the rural rate, which is less than $6.00 per week, and submitted that for pain and suffering and loss of amenities of life the single standard of damages should be reduced to about one-half, or even less, of the sum which would be awarded for damages in Australia.

There is support for the appellant’s argument that there should be one standard of damages under this head. Thus in McGregor on Damages 13th ed. par. 1141 the following passage appears:

“... it would seem that the sensible view is that rich and poor, great and humble, should be treated alike, receiving similar amounts for pain and suffering. And it appears from Fletcher v. Autocar Transporters Ltd. ([1968] 2 Q.B. 322 (C.A.)) that the courts have moved towards acceptance of this view. In that case, where suit was brought for a very serious injury to a wealthy plaintiff, the Court of Appeal agreed that his wealth should not affect the size of the non-pecuniary award. ‘High though his deprivation ranks,’ said Diplock L.J., ‘I cannot think that it ranks any higher because the plaintiff, before the accident, was a rich man. Had an ordinary working man, who, like the plaintiff had led before the accident a full, active and useful life in his own sphere, sustained the same injuries with the same physical and mental results, he would in my view have been entitled to monetary compensation of the same order as the plaintiff.’

Salmon L.J. was even more emphatic. He said: ‘The plaintiff’s economic and social position is irrelevant. The normal compensation for the loss of an arm as such is the same for a rich man as it is for a poor one.’ ”

The learned author considers that the same considerations are applicable where the amount to be awarded for loss of amenities is in issue (op. cit. par. 1147).

Similarly, where the inquiry related to the sum sufficient to cover the wants of a plaintiff totally incapacitated as a result of the defendant’s negligence Lord Devlin in his dissenting speech in H. West & Son Ltd. v. Shephard[cccxlix]¹³, which was later approved by the High Court in Skelton v. Collins[cccl]¹⁴ said, “Of course the extent of a plaintiff’s wants depends upon the standards of life to which he or she is accustomed. The law requires that the standard to be taken should be that of a person of average means, for it does not permit more to be paid to the rich or less to the poor.”[cccli]¹⁵.

However, it does not necessarily follow that plaintiffs suffering the same injury would receive the same award of damages for loss of amenities of life. The principle to be followed in assessing general damages is to be found in a passage cited by the trial judge from the judgment of the High Court in Planet Fisheries Pty. Ltd. v. La Rosa & Anor.[ccclii]¹⁶ as follows:

“... it is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.”

Thus in assessing an amount for loss of amenities regard must be had to any special circumstances, for example in the case of an injury to the hands, that the plaintiff played the piano for pleasure. See Fletcher v. Autocar Transporters Ltd.[cccliii]¹⁷ per Salmon L.J.

The main consideration is whether one common standard can in practice be applied in Papua New Guinea having regard to the great differences in the living standards reflected in the wide range of earnings throughout the country. At one end of the scale there are tribesmen who have not yet entered the cash economy, the rural worker and the coffee grower in the Highlands earning $200.00 to $300.00 a year. At the other end of the scale is the large group of expatriates who are required and will be required for some time to come in both the Public Service and in private enterprise. The incomes of this group fall within a range from $5,000.00 as a minimum, which nearly reaches the top range of salaries for indigenous employees. It is of some significance that this raises a difficulty to which the legislature has clearly adverted in the field of workers’ compensation. Thus in assessing the amount of compensation payable to a worker the rate of annual wages is to be taken into account, so that for workers earning less than stated annual amounts fixed proportions only of the amount of compensation prescribed by the Ordinance are payable—Workers’ Compensation Ordinance (1958-72), s. 7. No such qualification is placed upon the entitlement to worker’s compensation in the corresponding legislation of England or the Australian States.

The difficulty of arriving at a single standard of damages can be illustrated by taking the case of a plaintiff who has suffered the loss of an arm. An award for $5,000.00 for pain and suffering and loss of amenities of life would, if invested at 6 per cent, return an income of $300.00 per annum. This consideration would render excessive such an award in the case of a rural worker, and yet—apart from the appellant’s argument—clearly such an award would be inadequate for a salary earner receiving $5,000.00 a year or more.

The standard to be applied is that the plaintiff is entitled to a fair compensation but not to the full amount of a perfect compensation. H. West & Son Ltd. v. Shephard[cccliv]¹⁸ per Lord Devlin. In assessing the sum to be awarded I agree with the Chief Justice that the view expressed by Windeyer J. in Skelton v. Collins[ccclv]¹⁹ is open to this court, that general damages for loss of amenities are by way of solace, op. cit. p. 312. This approach could presumably be extended to cover pain and suffering. The doctrine is consistent with the view of Lord Devlin that damages under this head should be considered from the subjective as well as the objective aspect[ccclvi]²⁰. See also per Kitto, J. in Skelton v. Collins [ccclvii]²¹.

Without deciding whether the doctrine is generally applicable, I consider that the court is entitled to consider the scale of the needs of the plaintiff. In the homogeneous societies of the United Kingdom and Australia it is found possible to arrive at an average sum which would provide compensation, fair to both rich and poor, under these heads of damage. But the extreme diversity of rates of remuneration throughout Papua New Guinea, in my opinion, makes this method of assessment inapplicable to this country during its present transition stage. In the case of a person in the situation of the respondent, regard must be had to the scale of needs to which he will turn for satisfaction by way of solace, needs acquired in the Australian environment from which he came and to which he always intended to return. But it does not follow, in my opinion, that the respondent is entitled to the full award of damages which would be arrived at by an Australian court. The fact that the respondent has come to this country in which the great bulk of the population has a very much lower standard of living should, I consider, be reflected in a clearly discernible element of moderation in the award of damages to him by a Papua New Guinea court. This conclusion is supported by the growth of insurance which as in western countries now pervades this society. A court is entitled to have regard to the fact that “more often than not the burden for damage for negligence falls upon the insurance company.” Skelton v. Collins[ccclviii]²² per Windeyer J. Thus judges have adverted to the interests of “the general body of premium paying policy holders.” Wise v. Kaye[ccclix]²³ per Diplock J.; see also per Lord Devlin[ccclx]²⁴; Fletcher v. Autocar Transporters Ltd.[ccclxi]²⁵ per Lord Denning. In Papua New Guinea there is to be considered not only the increase in premiums which must follow if awards are not kept to the level of fair but not full compensation, but also the fact that the same rate of premium is paid by all policy holders, indigenous and expatriate. Accordingly, to ensure that the awards of damages for Australian expatriates (and others in the same position) should be seen to bear quite distinctly the element of moderation the sums awarded should, in my opinion, be some degree less than the sum which would have been awarded in Australia. The proportion I have in mind is one-quarter to one-fifth.

In the present case for pain and suffering and loss of amenities the learned trial judge allowed the sum of $20,000.00 but there is also to be taken into account that to arrive at the global sum of $65,000.00 he added $2,200.00 to the total of the various items. This additional sum is clearly not referable to the items for special damages. It is also apparent from his Honour’s reasoning that it is to be attributed to the items for loss of earning capacity and the head of damage now being considered. Thus it appears that the sum allowed for pain and suffering and loss of amenities must appreciably exceed $20,000.00. In my opinion, that sum is excessive having regard to the special considerations applicable to an award of damages in Papua New Guinea in cases of this kind. In all the circumstances of the case I consider the sum awarded should not have exceeded $18,000.00. Accordingly, the appellant succeeds on this ground of appeal and a corresponding deduction has to be made from the award.

[His Honour then dealt with the claim for future loss of earning capacity and concluded that the evidence supported an assessment of loss of earning capacity of $32 per week for the period after the respondent’s return to Australia. He continued:]

Over the whole period of 20 years and 4 months the respondent would thus have lost $32.00 per week, and over the initial period of 3 ¼ years he would have lost an additional $45.00 per week. The present value of an economic loss of $32.00 per week, the money being invested at 6 per cent per annum over a period of 20 years and 4 months, is approximately $20,000.00. The present value of an economic loss of $45.00 per week for 3¼ years is approximately $6,000.00, the total of the two sums being $26,000.00. Making the same proportionate deduction for contingencies as was made by the learned trial judge, viz. one-fifth, the total economic loss is approximately $21,000.00 which is approximately $11,000.00 less than the sum allowed by the trial judge. Accordingly, the appeal succeeds on this ground also. Taking into account the additional $2,200.00 added by the trial judge to make a global award of $65,000.00 the award is excessive to the extent of $15,000.00 in all.

Accordingly, I would allow the appeal and order that the damages be reduced to $50,000.00.

CLARKSON J: I have read the judgment of Frost S.P.J. I agree that the extent of the plaintiff’s loss of earning capacity was substantially overestimated.

The challenge to the award for pain suffering and loss of amenities raises some interesting questions on which I would like to add my own comments.

The plaintiff lived in Australia until he came to Papua New Guinea and intended to return to live permanently in Australia in a few years’ time.

The appellant concedes that if the plaintiff had sued on the same cause of action in Australia he may well have received the sum awarded under this heading but, it is argued, living as he does in Papua New Guinea he should receive substantially less. This argument is put in the following form:

N2>1. When damages for non-pecuniary loss are to be assessed, there is no formula by which the loss can be converted to money. The court acting as arbitrator of community values makes a value judgment. If the court applies other standards it fails in its duty.

N2>2. Given that community standards are the basis of such an award the award in Papua New Guinea will be substantially less than the award in Australia would be for the same loss.

N2>3. For the purposes of such an award in Papua New Guinea the income or resources of the plaintiff and the value of money to him is irrelevant.

Much has been written in recent years regarding the basis on which damages for non-pecuniary loss is assessed. It is sufficient to refer by way of illustration to McGregor on Damages (13th ed.) pars. 1138 et seq., (1972) 35 Modern Law Review p. 1 and Working Paper No. 41 of the Law Commission (October 1971) and the cases therein discussed.

It seems clear enough that such an award is not made by way of retribution and by reason of the very nature of the loss, restitution is impossible.

The Working Paper of the Law Commission already referred to (par. 68) states the position as follows:

“The basis of the calculation of damages for pecuniary loss is plain; the basis of awarding damages for non-pecuniary loss is not Damages given to compensate a victim by enabling him to purchase an artificial leg can be quantified; but, since one cannot replace a leg, or undo pain, suffering or grief, or restore to the victim the enjoyment of life, one cannot rationally value in money terms the non-pecuniary loss that the victim has suffered. At present, if the injured person may, in the future, spend money on something that can make him forget the loss of his leg or his pain and suffering, or on some alternative to the amenities of which he has been deprived, such expense is not usually regarded as pecuniary loss, though it will be taken into account as an element in assessing the non-pecuniary loss.”

It also seems that damages must be assessed in the context of the social and economic standards of the community in which the court operates.

Even where actionable damage is caused in one jurisdiction and action taken in another the quantification of damages under any particular head of damage is a matter for the court in which the action is brought. Kohnke v. Karger[ccclxii]²⁶ and this must be the position where the damage occurs and the action is taken in the same jurisdiction. The result, in the comparatively few cases likely to arise, is that a loss actionable in two jurisdictions may attract more by way of damage in one jurisdiction than in the other.

The influence of local conditions on the assessment of damages has been recognized in many jurisdictions. See for instance for Malaysia Jag Singh v. Toong Fong Omnibus Co. [ccclxiii]²⁷, for Kenya, Kimoiba[ccclxiv]²⁸ and for Papua New Guinea, Smerdon v. Raquel [ccclxv]²⁹, Gaudi Kidu v. The Port Moresby Freezing Co. Ltd. & Anor.[ccclxvi]³⁰ and cases there cited. In Skelton v. Collins [ccclxvii]³¹, Windeyer J. at p. 135 said, “Various circumstances, locally known as existing in any community, such as welfare services, pensions, hospital aid, sick pay, rates of wages and so forth, are taken into account directly or indirectly, deliberately or unconsciously by judges and juries when assessing damages for personal injuries”.

One has only to look at cases such as H. West & Son Ltd. v. Shephard[ccclxviii]³² and Skelton v. Collins[ccclxix]³³ to see that the basic principle underlying the assessment of damages for non-pecuniary loss are still being developed and refined in common law countries.

At the present stage there appears to be a number of general principles some overlapping and some inconsistent. There are however two which appear especially relevant to the present inquiry. The first which applies to damages generally is that in the final result the award is of damages appropriate to the particular circumstances of the plaintiff. Whilst the Court making the assessment is aware of and gives weight to current general ideas of fairness and moderation the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. “It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.” Planet Fisheries Ltd. v. La Rosa & Anor[ccclxx]³⁴.

The second principle of importance in the present context relates to damages for non-pecuniary loss and is identified partly by a process of elimination and partly as a matter of good sense. If damages under this head are not retributive or penal, cannot give restitution, are not fixed as akin to a price payable to an unwilling vendor, and cannot be ascertained by any yardstick expressed in money, one is guided to the realization that non-pecuniary damages contains a substantial element to provide some form of consolation and to provide distractions and substitute activities. (See Law Commission Working Paper (op. cit.), Fleming, Law of Torts 4th ed. 1971 p. 206).

This accords with the approach of Harman L.J. in Warren v. King[ccclxxi]³⁵ who speaking of a seventeen years’ old girl who had been rendered a quadraplegic said at p. 10:

“It seems to me that the first element in assessing such compensation is not to add up items such as loss of pleasures, of earnings, of marriage prospects, of children and so on, but to consider the matter from the other side, what can be done to alleviate the disaster to the victim, what will it cost to enable her to live as tolerably as may be in the circumstances?”

When one comes to apply the general principles to local conditions in Papua New Guinea a number of difficulties emerge. Not the least is the wide variation in living conditions which exists. It is difficult to make any useful comparison between the semi-nomadic indigene who lives almost undisturbed by government influence and the sophisticated city dweller who lives in a transplanted western society. Both may live full lives but they make different economic and social demands to achieve different objects. The variety of living conditions, demands and objects is much greater than in a homogeneous society and does not always coincide with divisions of race. A fairly full variation is now to be found in the indigenous population and, to a lesser extent, in the expatriate population, although it is obvious that if one looks at general standards and not individual cases, the general wage level and standard of living is lower in the indigenous sector of the community than in the expatriate sector. But, as I have pointed out, we are now concerned with one particular person, his losses, problems and circumstances.

It will be seen from what I have said that I accept the first two of the three propositions put by the appellant in respect to the assessment for non-pecuniary loss, but I do not accept that a person’s pre-injury living conditions, which, putting aside the rich miser and the profligate, indicate that person’s material resources and how he uses them, is necessarily irrelevant to the assessment; nor are his intentions for the future.

I think it may well be relevant, and that it is in this case, that the plaintiff will suffer his loss and seek consolation for it in a community where a standard of living higher than is ordinarily found in Papua New Guinea exists and where the substitute distractions and comforts may be more expensive.

But even when these principles are identified, it seems to me inescapable that they are to be applied in the circumstances of the community in which the Court operates. Fairness and moderation are not absolutes. Each is relative to the general standards and modes of living as reflected in levels of remuneration and social services of the community concerned and it is by reference to these and similar considerations that it can be said that an award is fair and moderate.

None of this is to deny that the damages must be proportioned to the plaintiff’s particular loss. I do not suggest that damages under this head constitute an attempt to estimate the cost of consolation but merely that the plaintiff’s past and future mode of living is a factor taken into account in the award. Nor does this approach mean that the Court applies a variety of standards; the test I have referred to is applied to each person entitled to damages in the light of his own circumstances.

I would like to illustrate what I have in mind. In this country, the proportion of claims for damages in which the plaintiffs are indigenous appears to be increasing and the number of expatriates is decreasing and no clear trend is yet discernible. It is quite likely that if a number of cases litigated in Papua New Guinea or in Australia were again litigated in the other country it would be found that awards for non-pecuniary loss were generally lower in Papua New Guinea. In view of what has been said about the Court’s regard for community standards that would not be surprising.

Here there was an award of $20,000 or more to the plaintiff for pain, suffering and loss of amenities.

It is true that the plaintiff suffered grievous multiple injuries which have resulted in serious and irreparable losses. The extent of the injuries and their effects are summarized by the trial judge and his findings on these aspects are not challenged. Serious leg injuries which will deteriorate require him to use a walking stick, he suffers diplopia, vertigo, continuing pain, some impairment of both arms, scarring, an inability to close his mouth properly, anaesthesia of parts of the face and inside the mouth and a substantial loss of taste.

His ability to eat or talk normally is noticeably affected. There was some brain damage which appears to have resulted in some personality change. His normal sporting, social and family activities have been largely lost. He appreciates his losses fully.

The general assessment of the trial judge was that while life has not ended for the plaintiff, he has lost much, very much indeed.

But as I see it, the trial judge assessed damages for non-pecuniary loss in much the same way as the plaintiff’s damages would have been assessed in Australia and in doing so gave insufficient weight to the different level of material community standards in Papua New Guinea.

The trial judge did not make a calculation of the damages under each relevant head and then award the resulting sum. He makes it quite clear that the calculations were used to check the total figure which he thought was an appropriate award. In my view this was a permissible approach which does not itself justify disturbing the award. The fact remains that the information set out in his judgment shows that damages under two of the heads used were substantially overestimated.

I agree with Frost S.P.J. that a proper award would be $50,000 and that this differs by such an amount from the award of $65,000 as to warrant this Court interfering with it.

I think the award of $65,000 should be reduced to $50,000.

Appeal allowed. Order varied by substituting the sum of $50,000 for the sum of $65,000.

Solicitor for the appellant: P. J. Clay, Crown Solicitor.

Solicitors for the respondent: McCubbery, Train, Love and Thomas.

[cccxxxviii][1966] HCA 14; (1965-1966) 115 C.L.R. 94 at p. 136.

[cccxxxix][1968] HCA 9; (1967-1968) 41 A.L.J.R. 327 at p. 330.

[cccxl][1968] V.R. 112.

[cccxli][1968] HCA 62; (1968) 119 C.L.R. 118 at p. 125.

[cccxlii] (1965-1966) 39 A.L.J.R. 78 at p. 78.

[cccxliii][1964] 1 W.L.R. 1382.

[cccxliv](1965-1966) 115 C.L.R. 94.

[cccxlv][1966] HCA 14; (1965-1966) 115 C.L.R. 94 at p. 135.