Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PGSC 13; [1979] PNGLR 251 (10 August 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 251 - Robert Younger Kerr v MVIT 

[1979] PNGLR 251

SC157

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROBERT YOUNGER KERR

FIRST APPELLANT (PLAINTIFF)

V

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

RESPONDENT (DEFENDANT)

AND PLANTATION SUPPLY & SERVICE CO. PTY. LTD.

SECOND APPELLANT

V

ROBERT YOUNGER KERR

RESPONDENT

AND MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

THIRD APPELLANT

V

ROBERT YOUNGER KERR

RESPONDENT

Waigani

Raine DCJ Pritchard Andrew JJ

28-31 May 1979

10 August 1979

DAMAGES - Measure of damages - Personal injuries - Assessment of general damages - General principles - General standards prevailing in community - Condition of plaintiff at time of injury - Defendant to take plaintiff as he finds him.

DAMAGES - Measure of damages - Personal injuries - Loss of earning capacity - Tax position to be taken into account - English common law applied.

DAMAGES - Measure of damages - Personal injuries - Future medical expenses - Charges in Medibank system between trial and appeal - Assessment not to be altered on appeal.

DAMAGES - Personal injuries - Loss of life expectation - Quantum of - Conventionally accepted figure - Fall in value of money to be taken into account - Conventional sum increased to K1500.

DAMAGES - Measure of - Personal injuries - Future nursing housekeeping care - Possibility of marriage breakdown relevant consideration.

DAMAGES - Personal injuries - Particular awards of general damages - Paraplegic - Dislocated fracture at T12 - Dislocated shoulder - Usual continuing problems - Keen sportsman and athlete - Salesman in agricultural and marketing area - Married man aged twenty-six (twenty-eight at trial) - Employed as office manager at trial - Award of K181,900 general damages substituted for award of K115,000.

APPEAL - Admission of fresh evidence on - Change in circumstances between trial and hearing of appeal - Assumptions properly made at trial falsified - Evidence to be admitted only in exceptional cases - Appeal against award of damages for personal injuries - Change in Medibank system falsifying assumptions as to future medical expenses - Circumstances not justifying admission.

COSTS - Costs of action - Damages for personal injuries - Compulsory third party motor vehicle insurance - Action against statutory Trust - Statutory limit on damages to be awarded against Trust - Excess awarded against insured - Liability of Trust for costs - Liability of insured for costs - Where claim in excess of statutory limit insured to be treated as defendant - Motor Vehicles (Third Party Insurance) Act 1974, ss. 49(2)(a)[cclxxii]¹, 54(5)[cclxxiii]².

The appellant plaintiff, an Australian and a salesman in the agricultural and marketing area, (with a diploma in Agriculture) aged twenty-six (twenty-eight at trial) claimed damages for personal injuries arising out of a motor vehicle accident. As a result of the injuries sustained including a dislocated fracture at T12, and a dislocated shoulder the appellant was rendered a paraplegic, confined to a wheelchair and with the continuing problems usual to that condition. Prior to injury the appellant was a keen sportsman and athlete, married with two children. At the time of the trial there were no signs of possible marriage breakdown and the appellant was doing office work connected with his previous experience with some prospects of advancement. The trial judge awarded general damages after making adjustments for overlapping at K115,000, including inter alia assessments of K35,000 for pain and suffering, loss of amenities etc.; K800 for loss of expectation of life, K39,000 for future economic loss, K12,000 for special equipment, K2,000 for future medical expenses and K20,000 for future nursing and housekeeping expenses. The first K100,000 of the total award was made against the respondent Motor Vehicles Insurance (P.N.G.) Trust (the Trust) and the excess against the respondent Plantation Supply & Service Co. Pty. Ltd. (the Company) pursuant to s. 49(2)(a) of the Motor Vehicles (Third Party Insurance) Act 1974.

On appeal against the award of damages on the ground of inadequacy,

Held

N1>(1)      In assessing general damages for personal injuries under the heading, pain and suffering, loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of injury, and the general standards prevailing in the community.

Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz, [1975] P.N.G.L.R. 262, followed.

Administration of Papua New Guinea v. Carroll, [1974] P.N.G.L.R. 265, disapproved.

N1>(2)      The assessment of K35,000 for pain and suffering, loss of amenities etc. was so inordinately low as to require intervention, and should be increased to K60,000.

N1>(3)      In assessing damages for personal injuries under the heading of loss of earnings, actual and prospective, the income tax which the plaintiff would have had or would have to pay is to be taken into account.

Charles Pupu v. Pelis Tomilate, [1979] P.N.G.L.R. 108, approved and applied.

British Transport Commissioner v. Gourley[1955] UKHL 4; , [1956] A.C. 185, followed.

Atlas Tiles Ltd. v. Briers [1978] HCA 37; (1978), 52 A.L.J.R. 707, not followed.

N1>(4)      The assessment of K39,000 for future economic loss was so inadequate as to require intervention, and should be increased to approximately K60,000.

N1>(5)      Although the general principle is that damages are assessed at trial once and for all, an appellate court has power in exceptional cases to admit fresh evidence of a change in circumstances between trial and appeal, if the particular exigencies of justice clearly outweigh the general undesirability of doing so.

Curwen v. James, [1963] 1 W.L.R. 748;

Murphy v. Stone-Wallwork (Charlton) Ltd., [1969] 1 W.L.R. 1023;

Mulholland v. Mitchell, [1971] A.C. 666;

Jenkins v. Richard Thomas & Baldwins Ltd., [1966] 1 W.L.R. 476; and McCann v. Sheppard, [1973] 1 W.L.R. 540, referred to.

N1>(6)      Accordingly, changes in the Medibank system in Australia introduced between the date of trial and hearing of the appeal should not be taken into account in assessing damages under the heading of future medical expenses.

N1>(7)      In assessing damages under the heading loss of expectation of life, the fall in the value of money should be taken into account and the conventional assessment of K800 increased to K1500.

Rokan Bayava v. Minisang Wankiar, [1978] P.N.G.L.R. 391, approved and applied.

Garaiju Moruwu v. Sabeme Uve, [1978] P.N.G.L.R. 161, disapproved.

N1>(8)      In assessing damages under the heading of future nursing and housekeeping expenses, the real possibility of a breakdown in the appellant’s marriage should have been taken into account.

N1>(9)      General damages should be reassessed after making adjustments for overlapping at K181,900 including inter alia assessments of K60,000 for pain and suffering, loss of amenities, K1,500 for loss of expectation of life, approximately K60,000 for future economic loss, K13,000 for special equipment, and approximately K30,000 for future nursing and housekeeping expenses.

On appeals against an order for costs made against both the Trust and the insured on the basis that both were liable for the whole (see Kerr v. Motor Vehicles Insurance (P.N.G.) Trust, [1978] P.N.G.L.R. 438),

Held

N1>(10)    A person insured under the provisions of the Motor Vehicles (Third Party Insurance) Act 1974, involved in a claim for damages for bodily injury where an award in excess of K100,000 can be made is a defendant in the recognised sense of the word, with all the rights of a defendant under the Rules of the National Court, subject to the limitations imposed on him by the Motor Vehicles (Third Party) Insurance Act 1974, vis-a-vis the Trust.

N1>(11)    Section 42 of the Motor Vehicles (Third Party) Insurance Act 1974, which prescribes limits in respect of “all liability ... in respect of the ... bodily injury ...” must be read in the light of s. 54(5) where the court’s power to determine against whom an excess is to be awarded is limited to cases where the award of damages exceeds the maximum liability (K100,000) of the Trust.

N1>(12)    Accordingly, the order for costs was properly made and the appeals in relation thereto should be dismissed.

Kerr v. Motor Vehicles Insurance (P.N.G.) Trust, [1978] P.N.G.L.R. 438, upheld.

Appeals

These were three appeals heard together: the first an appeal against an award of damages for personal injuries on the ground of inadequacy (by the original plaintiff); the second and third for costs made against both the Motor Vehicles Insurance (P.N.G.) Trust as the statutory insurer under the Motor Vehicles (Third Party) Insurance Act 1974, and Plantation Supply & Service Co. Pty. Ltd. as the insured under that Act.

Counsel

F. McAlary Q.C., R. H. B. Wood and M. May, for the first appellant (plaintiff).

J. Griffin, for the second appellant (the Company).

G. W. Crooke, for the third appellant (the Trust).

Cur. adv. vult.

10 August 1979

RAINE DCJ: I have read the judgment in draft of Pritchard J. and agree with his recital of the facts and the issues. This makes it only necessary for me to refer to them in passing when this becomes necessary.

I now proceed to deal with the various issues and arguments.

GENERAL DAMAGES

I deal with this first as it is possibly the most significant as a matter of law, and most significant as to the ultimate result of the appeal.

His Honour the trial judge, after considering all the usual factors, thought that something in the order of K35,000 was a proper amount to award, or rather, to consider, when fixing on a final, round sum of total damages. His Honour’s judgment was most careful, indeed, Mr. McAlary of Queen’s Counsel had no complaints about the judge’s factual findings. Senior counsel really only complained of the damages that the learned judge arrived at, based on the findings of fact.

In my respectful opinion the award was too low, and I would favour something in the order of K55,000 to K60,000.

It seems to me that the reason his Honour erred, as I believe he did, is that he did not fully embrace the principles laid down by the majority in the decision that was binding on him, Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[cclxxiv]³, but retreated to the principles laid down by the majority in Administration of Papua New Guinea v. Carroll[cclxxv]⁴, principles that were rejected in Diaz, trenchantly, by Prentice Deputy C.J. (as he then was) and more tersely by myself.

The then Deputy C.J. said in Diaz[cclxxvi]⁵:

“As I understand it, the principle in Carroll’s case[cclxxvii]⁶ seems to be that in making awards of damages for pain and suffering and loss of amenities of life in Papua New Guinea, even though the award be in favour of an expatriate who the court contemplates will reside outside, and spend the moneys of the award outside Papua New Guinea, the court henceforth should compute the amount of the award which it would normally make, and then reduce it by a percentage of twenty to twenty-five per cent.”

This seems to me to set out correctly the “ratio decidendi” of Frost S.P.J. (as he then was), and Clarkson J. Minogue C.J., as I see it, did not agree with the view taken by his brethren, but was, if I may say so with respect, somewhat reserved in the way he expressed himself.

I was the judge appealed from in Carroll and it may be useful to point out that on this question of an arbitrary deduction regardless of merit and just desserts, an extract from my judgment as judge at first instance appears in 1974 Melanesian Law Journal, vol. II, no. 2, p. 180. The learned contributors say, quite wrongly, “This (my) view was upheld on appeal to the Full Court.” And they quote Carroll. Before me, senior counsel (now a Supreme Court judge) from the Queensland Bar, raised the arbitrary deduction argument, as he put it, “on instructions”. When counsel says this judges are wont to regard it as indicative of the fact that counsel is embarrassed at having to put an argument he believes is wrong. Be that as it may.

As I have said, the rejection of Carroll by Diaz binds a single judge in the National Court, and would, I imagine, be regarded by subsequent Supreme Courts as proper to follow, unless, subsequently, the Supreme Court, as then constituted, thought Diaz was quite wrongly decided. See Sch. 2.9 of the Constitution of the Independent State of Papua New Guinea.

What then did the trial judge say? He said this, after carefully setting out the plaintiff’s many and grievous losses:

“The problem is to arrive at a suitable amount to compensate the plaintiff for these losses. As Windeyer J. pointed out in Thatcher v. Charles[cclxxviii]⁷:

‘Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. The law insists that it be done, but can give no sure guidance on how it is to be done.’

Closer to home Minogue C.J. pointed out the difficulties of assessment under this head in Administration of Papua New Guinea v. Carroll[cclxxix]⁸.

The objective is to judge ‘... what in the community at or about the time the matter has to be decided is or has been regarded as fair ...,’ to adopt the words of Barwick C.J. in Arthur Robinson (Grafton) Pty. Ltd. v. Carter[cclxxx]⁹. Minogue C.J. in Administration of Papua New Guinea v. Carroll[cclxxxi]¹⁰ said:

‘... assessment should be made having regard to the general standards prevailing in the community. [And, later:] The question remains what can be said to be current general ideas of fairness and moderation in Papua New Guinea ... 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 ...’

I respectfully adopt Minogue C.J.’s formulation.

Carroll’s case was a pre-Independence case. His Honour, dissenting, treated the then environment of the plaintiff in Papua New Guinea as a ‘partially transplanted Australian environment,’ and considered that the learned trial judge, in assessing the award for pain, suffering and loss of amenities, had correctly expressed ‘community values which have been in existence for some time’. The majority in Carroll’s case appear to have taken the view that the award under this head was excessive when measured against the community values or standards of Papua New Guinea. Frost C.J. a member of the court in Carroll’s case, explained it thus in Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[cclxxxii]¹¹ (emphasis mine):

‘The opinion I was there endeavouring to express was that whilst the award of general damages for pain and suffering and loss of amenities for a plaintiff in the position of an Australian expatriate who intends to return to Australia must be proportionate to the situation of the plaintiff, the damages ought to be based on standards of fairness appropriate to Papua New Guinea, which required awards to be somewhat less than required in Australia.’

The majority in Diaz’s case, a decision binding on me, considered the decision in Carroll’s case to be wrong; however, the principle which was seen to be incorrectly laid down in that case, was, as expressed by Prentice Deputy C.J. (as he then was), that[cclxxxiii]¹²:

‘... the court henceforth should compute the amount of the award which it would normally make, and then reduce it by a percentage of twenty to twenty-five per cent.’

Diaz’s case also involved a pre-Independence award, although the decision on appeal was given shortly after Independence; and accordingly attention was once again concentrated on the comparison with Australian awards. It appears to me that there is nothing in Diaz to cast doubt upon the accuracy of the formulation of the question to be answered, as regards damages for non-pecuniary loss, by either Minogue C.J. in Carroll’s case, or by Frost C.J. in Diaz, other than the words I have emphasised in the citation from Frost C.J. If this be so, it appears that that part of the headnote to Diaz which states that no account should be taken of the particular economic conditions of Papua New Guinea in assessing general damages for personal injuries in respect of expatriates injured in Papua New Guinea, goes beyond what that case decided. For non-pecuniary loss the values of the Papua New Guinea community constitute the parameters of the award, and those values are determined by economic and other conditions.

The problem remains of determining what the community in this country would regard as fair compensation for the non-pecuniary loss suffered by this particular plaintiff. As Prentice Deputy C.J. pointed out in Diaz[cclxxxiv]¹³, a pattern of verdicts in damages will emerge over the years. A trend of judicial opinion will gradually become apparent from consideration of awards in reasonably comparable cases in this jurisdiction; see Jag Singh v. Toong Fong Omnibus Co. Ltd.[cclxxxv]¹⁴. Comparison with awards made elsewhere, however, would not appear to serve a useful purpose; in particular, Papua New Guinea is no longer a partially transplanted Australian environment, and Australian awards are of little use, the social, economic and industrial conditions being very different. There is no doubt that the plaintiff would have returned to Australia, and will spend the rest of his life there; he had no intention of residing permanently in Papua New Guinea when he came here in February 1976. It appears that all the judges in Carroll and Diaz who considered the point, inclined to the view that damages under this head were in the nature of consolation or solace for the condition created. The plaintiff will have to find that solace, that enjoyment of alternative pleasures, in an Australian environment; and to that extent the nature of that environment becomes relevant to the assessment of the damages he should now receive.

Doing the best I can, bearing in mind these factors, I assess the damages for pain, suffering and loss of amenities to be of the order of K35,000.” (The additional emphasis is mine.)

With great respect, the part of his Honour’s judgment that I have emphasized is far too simplistic in its approach as to what was decided in Diaz. Of course circumstances in this country must be taken into account, but they are not decisive. In this case, as a paraplegic, the appellant ultimately had to return to Australia. There are no places here, like Stokes Mandeville in England, Royal North Shore Hospital in Sydney, and a similar spinal injury unit in Perth, where these people can be properly treated. This man could be completely at risk were he to remain here indefinitely. This is not critical of this country, I well know that the Royal North Shore unit had very humble beginnings not so many years ago. But Mr. Kerr would have been a fool to remain for too long here. The quadriplegic and the paraplegic needs the greatest care, and thus he has to be prepared to pay for it, and so has the tort-feasor.

Diaz did more than merely state that the arbitrary, and huge reduction, was wrong in principle. I believe Kearney J. unconsciously retreated from the Diaz to the Carroll position because of the view he took of the majority judgments in the former case. Without repeating all that was said in Diaz in the majority judgments, in essence they relied heavily on the trite principle that a defendant must take a plaintiff as he finds him, and further, that the courts will compensate the plaintiff “so far as money can”. For a dissection of the words placed in emphasis see the judgment of Prentice Deputy C.J.[cclxxxvi]¹⁵.

I might add, appreciating that comparisons are dangerous, that in 1974 in Diaz, the trial judge thought that $75,000 was appropriate for general damages. I will ignore the present exchange rate, and call that K75,000. The trial judge in Diaz expressed himself as being in disagreement with the arbitrary deduction Carroll principle, but said that he followed the then Full Court, as he was bound to do. As he disagreed, I will assume that his Honour used the lower percentage reduction, twenty per cent; this would be a reduction of about K15,000. Thus, it is probable that his Honour’s “real” general damages would have amounted to over $100,000. The circumstances in this case and Diaz were not dissimilar. This nearly five years ago. Since then inflation, here and elsewhere, has vastly increased. No criticism was made of the ultimate but reduced figure chosen by the trial judge in Diaz by any of the judges who heard that appeal.

FUTURE ECONOMIC LOSS

The learned trial judge assessed this at about K39,000. With great respect, I regard this as much too low. It is not a case where I feel diffident, as one often does, in interfering with a judge’s decision where the trial judge had the inestimable advantage of seeing and hearing the witnesses and absorbing the atmosphere of the trial. I say this in the instant case because, as I said “qua” general damages, so with this head of damage, his Honour’s findings and reasons were most careful and detailed. It was apparent that his Honour accepted the case made out, certainly he did so to a very large extent. Once again, senior counsel for Mr. Kerr had no real complaints about the findings, only the damages.

With great respect indeed I simply cannot see how his Honour came to reach a figure of only K39,000. I note that his Honour has not purported to rationalise the result he achieved in the usual way. He discussed the various avenues of future employment, and what may be received by the plaintiff therefrom. He discussed age. After discussing, with great care, all the usual matters taken into account, the learned judge said:

“The nature of the diminution of earning capacity in this case is such that its assessment is founded upon a consideration of conjectures, contingencies and probabilities which offer little scope for mathematical calculation. Doing the best I can, considering the factors I have mentioned, I would assess damages under this head at the order of K39,000.”

With respect, I do not agree that on his Honour’s careful findings, there was “little scope for mathematical calculation”. Mr. McAlary handed up his careful arithmetical workings, which I found easy to follow. As figures often do, they produced possible results which I found much higher than my intuitive feel for the case produced. But while figures can be bad masters, they help to check one’s intuitive feelings, just as intuition checks the figures. In all frankness, I do not see how one can test one’s intuitive feelings without checking them against the arithmetic. There are most useful actuarial tables available, which are easy to use once one makes a value judgment upon the factual issues that must be decided before the tables be put to use.

As I have said, I feel that Mr. McAlary’s figures lead to a very high figure that my intuition makes me believe is too high by far. But I make no attack on senior counsel for this. He himself, in his illuminating and pleasant address, seems to me to take the same approach as I do, for he examined what might be the amount thought reasonable to ascribe to this head of damage in another way, a “rule of thumb” approach explained by Andrew J. in the first draft of his judgment which he has kindly lent me.

Before expressing my view as to the amount I believe should be substituted for economic loss, it is necessary for me to decide whether we should follow British Transport Commission v. Gourley[cclxxxvii]¹⁶ or the views of some of the High Court of Australia in Atlas Tiles Ltd. v. Briers[cclxxxviii]¹⁷.

This vexed question was dealt with by Saldanha J. in Charles Pupu v. Pelis Tomilate[cclxxxix]¹⁸. This was also a paraplegic case. (In passing, might observe that the plaintiff there was a talented national and was awarded the sum of K117,058.90, of which about K12,000 only was in respect of out-of-pockets and the like, and wages to date of trial.)

In that case counsel for the plaintiff, like Mr. McAlary, pressed for pre-tax figures, and relied on Atlas Tiles. However, Saldanha J. considered that the post-Independence situation here impelled him to adopt the English common law. Thus he followed Gourley which is against plaintiffs, for the reality of Gourley is that loss of income as a result of the tortious act is worked out on an after-tax basis. Saldanha J. felt bound by the Gourley decision, as do I, for I can see no reason for asserting that it is inappropriate in this country. It may well be, and there has been much learned discussion of Gourley over the last twenty years and more, that Atlas Tiles is to be preferred on logical or intellectual grounds. But I feel that Gourley and its “realism”, or “reality”, is to be preferred to intellectualism, and no doubt this view will not surprise those who know me.

I do not feel that non-lawyers here, if awarded damages for loss of earnings, past or future, certainly for pre-trial loss, would be affronted because the courts only gave them the equivalent of something they know all about, namely, what is called “take home money”, wages less tax at the source.

In conclusion, before giving the figure I think is a proper one to award under this head, or, rather, to merge into the ultimate round figure verdict, I should make two observations.

They are these. Firstly, and I do not over-emphasise this, the plaintiff was in court when we heard this appeal. He is an impressive looking man. Secondly, my personal observations above are borne out by the trial judge’s findings and by the evidence. I think he is, as best I can judge, a sound man, and he seems to have a sound wife. It is, of course, a better thing that this be so. But it must affect my approach as to his future prospects, and it does. Naturally the plaintiff is under many predictable clouds, but the clouds are not nearly as dark as in the case of some similar plaintiffs I have encountered, as both judge and counsel.

I feel that the proper range is between about K57,500 and K67,500. My inclination is that this could be a bit mean. If, when I look at the total figure this view is confirmed, then I will have to re-assess things.

FRESH EVIDENCE

Not a great deal, in terms of money, turns on this. But it is something that has to be decided. Also, important questions of principle are undoubtedly involved.

When the trial of the action took place it was then commonly and correctly assumed that a more favourable situation existed in relation to the plaintiff under the Australian Medibank scheme than exists now. But that assumption has now been falsified. It is not the plaintiff’s fault that this is the case, nor the fault of his lawyers. When the trial was under way neither the plaintiff and his former most experienced leading counsel, exercising all the diligence in the world, had any clue as to the change that was to come about. It is not a case where a party, whether plaintiff or defendant, can be said to have forfeited a right to lead fresh evidence which was available at the time, and which, with reasonable diligence, could have been unearthed and presented to the trial judge. See Council of the City of Greater Wollongong v. Cowan[ccxc]¹⁹.

In some cases I would not pause to consider the problem. For instance, a plaintiff who suffered no more than pain and suffering but had no future medical troubles, would not suffer loss, or probable loss, as a result of a change in the Medibank set-up as a result of a new government’s action. But the plaintiff, even given that he progresses better than any paraplegic is expected to progress, must, in his own interests, be hospitalised from time to time, and this for years. The plaintiff will possibly have other special problems as the years go by, which will result in additional hospitalisation or medical and nursing care in his home. Thus, the claim made by Mr. McAlary cannot be put aside as “de minimis”, and not supportable on a balance of probabilities.

There has been some law on what should be done where a change in circumstances occurs between trial and appeal.

In Curwen v. James[ccxci]²⁰ a young widow claimed damages arising out of the death of her husband. She was young and presentable. No evidence was led as to the likelihood of her remarriage. But it was certainly something the trial judge had to bear in mind, which his Lordship did. On the day an appeal was lodged against the verdict she received she remarried. Of course, this, had it happened before the trial, would have seriously affected her claim for loss of support. A further notice was filed, and the fact of the second marriage came before the Court of Appeal, and was accepted by it. Harman L.J. said[ccxcii]²¹:

“It seems to me that there is an important principle here involved and it is this, that the court should never speculate where it knows. That is a principle which is involved where there is a change in value in property, for instance. I refer in that connection to the well-known case of Bwllfa & Merthyr Dare Steam Collieries (1891) Ltd. v. Pontypridd Waterworks Co.[ccxciii]²²”

The Court of Appeal did, in this case, for defendants, just what Mr. McAlary asks us to do for his plaintiff.

Before turning to the other authorities let me say that I have little doubt, with great respect, that the Court of Appeal, a very distinguished one, if I might say so, might have been extremely disturbed at the situation it faced. We all know that any counsel of experience is troubled by this possible remarriage problem when acting for a young and attractive widow. Counsel always asks whether she is thinking of remarriage. Of course, the usual answer, gratefully received, is “He was and always will be the only man in my life. I now only live for my children.” Counsel then goes ahead with great confidence, albeit somewhat cynically. Counsel for defendants, in my experience at the bar, usually left remarriage severely alone in cross-examination of the plaintiff. Thus, it occurs to me that the Court of Appeal might well have suspected there was some deceit. The trial was heard on 6th April, 1962, the plaintiff remarried a month later.

I now turn to the next case. It is Jenkins v. Richard Thomas & Baldwins Ltd.[ccxciv]²³. Like the previous appeal, it was heard by a most distinguished bench. It was another case in which further evidence was adduced after trial and before or at appeal. Curwen v. James[ccxcv]²⁴ was referred to. This was the reverse case to Curwen v. James. But the principle is the same. As Lord Denning M.R. said[ccxcvi]²⁵:

“The expectation (on which damages had been assessed) had been entirely falsified by the event. So here the plaintiff said he could show that immediately after the trial the judge’s estimate had been falsified by the event.”

This was a case where the damages were accordingly increased.

The judgments should all be read. But I set out what was said by Salmon L.J.[ccxcvii]²⁶:

“The general rule is that damages in actions of this type have to be assessed once and for all at the trial. It not infrequently happens that when damages are assessed at the trial on the basis that the plaintiff will in the future probably be able to earn such and such a sum, it turns out that he is actually able to earn and does earn either substantially more or substantially less. It must not be thought that whenever this occurs, one side or the other can come to this court and appeal and ask for leave to call further evidence with a view to having the damages reduced or increased as the case may be. If the basis on which the damages have been assessed proves to be wrong very shortly after the trial and the point is promptly taken up with the other side, then, in the exceptional circumstances, there may be good grounds for this court giving leave, as we have done here, to call further evidence. Another exceptional circumstance in the present case is that the assumption that the plaintiff would be able to earn £17 a week as a grinder was largely based upon what had been said on behalf of the defendants — genuinely but mistakenly — at the trial. Save in exceptional circumstances, the rule is that for better or for worse the assessment at the trial is once and for all. It may well be that that rule is very much for worse. It would perhaps be better, when questions of loss of earning capacity are being considered, that the amount to be awarded by way of damages should be assessed by way of an award of an annual or monthly sum, with liberty to apply to the court should the circumstances change. This might well be much fairer from the point of view of both plaintiffs and defendants. But that is not the law at the moment. The law is that the damages must be assessed at the trial once and for all and awarded in a lump sum. It is a rule which is very rarely departed from. This case and Curwen’s case, to which my Lord has referred, are quite exceptional.” (The emphasis is mine.)

Now, what his Lordship said coincides with my own thinking.

I think it is dangerous to tinker with one of the great features of our law, namely, that results should be achieved, final results, as soon as humanly possible.

Thus, proceeding from Curwen v. James[ccxcviii]²⁷, and before considering the other cases, I find myself leaning to the view that no arbitrary position should be taken by an appeal court in this sort of situation. In my view an arbitrary approach along Mr. McAlary’s lines could protract proceedings. But, an equally arbitrary view the other way could cause the sort of results that would bring the courts, in this case, the highest court of the land, into derision.

The other cases are Murphy v. Stone-Wallwork (Charlton) Ltd.[ccxcix]²⁸ and McCann v. Sheppard[ccc]²⁹.

My view is this. If the falsification is only revealed because, by sheer bad luck to one party or the other, a situation changed, then I would be loath to displace what had been thought to have achieved finality. “Aliter” perhaps where there was deceit, as I suspect there was in Curwen v. James, I prefer to keep an open mind on the matter. But so far as this appeal is concerned I would not admit the fresh evidence, there is nothing very special about what has happened. It opens the door very wide if a new wage decision is seen to falsify the premises on which the trial judge worked, this is one example. Another is some new medical incident. There must be some degree of restraint, but, as I have said, I would prefer to leave the matter open, although not too open.

In saying this I do not fail to appreciate that an appeal to us is a rehearing. See s. 7(1) of The Supreme Court Act 1975, and that under sub-section (a) we may “allow fresh evidence to be adduced where ... satisfied that the justice of the case warrants it.”

Order 58, r. 3(1) of the Rules of The Supreme Court (U.K.) provides that “An appeal to the Court of Appeal shall be by way of rehearing ...” Order 58, r. 9(2) deals with the reception on appeal of fresh evidence. It is set out in Curwen v. James[ccci]³⁰ and the effect of it is discussed by Sellers L.J.[cccii]³¹ and by Pearson L.J.[ccciii]³². Despite what their Lordships say I prefer to adhere to the rather tentative views I have expressed.

POSSIBILITY OF DIVORCE OR SEPARATION

As a result of his irreversible condition the appellant is deprived of real sexual capacity. But his wife, of course, is fully capable of having sexual intercourse. She was married to a man who, at the time of the accident, was only twenty-six years of age, a fit man, athletic, he was a good sportsman, he was intelligent, and attractive looking, and, the evidence and his Honour’s judgment indicates that he enjoyed social life.

It is difficult to discuss these matters, but, be that as it may, I cannot shirk the issue. The fact is that sexual intercourse is a natural thing, and a desired thing, each party to a marriage desires satisfaction, from time to time. Inability on the part of one partner to satisfy the other, for physical reasons, or on account of frigidity, or otherwise, must impose strains. Dr. Yeo makes it clear that while the appellant has some residual capacity “qua” sex, that he really cannot control this so that such involuntary sexual drive as is left can be directed towards the satisfaction of his wife. The appellant achieves an erection sometimes, as I read Dr. Yeo’s evidence, this is an involuntary sort of thing, it is unpredictable, and cannot be called in aid by a husband like the plaintiff who seeks to relieve his wife when she feels the need for some sexual satisfaction.

But the stress put on the marriage does not end because of sexual deprivation. There are many other matters that are apparent to all who are aware of problems associated with this sort of case. Some are merely tedious, but there are others that, day in, day out, are more than tedious, for instance, what I might call the “lavatory problems”.

Even given a good and noble woman who tries her best, and a woman who is prepared to become half wife and half trained nurse, the fabric of marriage is at risk.

I find it impossible, as the facts presently stand, to say what price can be put on these matters. It is something that I will weigh when considering general damages. The range I have there considered will need to be increased. It is indeed hard to say by how much, but some increase there must be. It cannot be quantified, as it could be, had Mrs. Kerr already left, or been shown about to do so, when the cost of a housekeeper, and so on, and the cost of caring for the children, had been taken into account, without Mrs. Kerr, it would be greater.

It is an extremely difficult matter.

Mrs. Kerr has stuck by her husband for over three years now. The nobility of women is such that she might well do so for the rest of her life. But only a prig would condemn her if she did not.

LOSS OF EXPECTATION OF LIFE

Mr. McAlary suggested that the amount of K800 thought to be sufficient by the learned trial judge should be increased to K1,500. The trial judge referred to one of his earlier decisions in Garaiju Moruwu v. Sabeme Uve[ccciv]³³. The learned trial judge in that case carefully reviewed the authorities and as in this case awarded K800.00. He regarded that amount as “the present conventional figure”. Later in the same year in Rokan Bayava v. Minisang Wankiar[cccv]³⁴, another judge of the court considered that K1,500 was proper taking into account “the fall in the value of money as testified to by the expert economist who was called by the plaintiff.”

I gain some support for my belief that K1,500 is a reasonable amount to award from Sharman v. Evans[cccvi]³⁵, although Barwick C.J. favoured a smaller sum than the other members of the bench.

AMOUNTS NOT CONTESTED BY MR MCALARY

Set out below are various items with the amount of damages his Honour ascribed to them. They are not contested by Mr. McAlary. They are:

	Special damages	17,524
Housekeeper to allow for yearly holiday	2,400
Modifications to house, etc.	6,400
Jobs done in the future by workmen on house that plaintiff would or could have done himself if fit	1,000
More expensive car because of disability	1,600
Total	28,924

ITEMS THAT ARE NOT CONTESTED BUT WHICH MR MCALARY SUBMITS WERE UNDER-VALUED BY THE TRIAL JUDGE

N1>(i)       Annual allowance for medical equipment and necessities

As I understand Mr. McAlary he has no complaint at all about his Honour’s findings of fact. His complaint is that the learned judge reduced the inevitable figure that flowed from those findings in, as his Honour said, “allowing for contingencies”.

N1>(ii)      Annual allowance for housekeeping assistance

The same observations as in (i) here apply. The difference is quite considerable in both cases, several thousands of kina.

Having fixed his items, put a figure on them, and estimated the plaintiff’s life expectancy it seems wrong for his Honour to have deducted a considerable amount for contingencies. His Honour estimated life expectancy, that was that, and I see no reason for the reduction from the capital sum that the figures produce.

I would increase (i) to K13,000 and (ii) to K25,000.

CONCLUSION

My total of the items dealt with above comes to nearly K194,000, but, as indicated, I believe there is a probability that the marriage could fail. I certainly hope it will not. Something must be allowed for this. But the plaintiff has the onus of proof. There simply is not enough evidence to justify a large figure. Thus, on the arithmetic, I find myself somewhere over K196,000.

I have considered the figures shown in the judgment in draft of my brother Andrew and discussed them with my brother Pritchard. Whichever figures I take the result that flows, if one gave a verdict on the arithmetic alone, accords with my general view of what the verdict should be.

In my opinion the proper verdict is one for K200,524.

I would make the following orders. The appellant (plaintiff’s) appeal allowed. Verdict of the trial judge set aside and an award of K200,524 substituted for it, the award being against the respondent Trust as to the first K100,000 of the said amount of K200,524 and against the respondent Plantation Supply & Service Co. Pty. Ltd. as to the excess. Order for costs made by the trial judge as to the costs of trial affirmed. The respondent Plantation Supply & Service Co. Pty. Ltd. (second appellant) to pay the appellant (plaintiff’s) cost of appeal. Appeal S.C.A. 40 of 1978 by the respondent (second appellant) Plantation Supply & Service Co. Pty. Ltd. dismissed. Appeal S.C.A. 39 of 1978 by the Trust dismissed. No order as to the cost of this appeal.

The reasons for the orders as to costs will be given by me at a later date.

ANDREW J: Robert Younger Kerr appeals against a judgment given in his favour for K132,524.90 in his action for damages for negligence. Liability was admitted and the appeal is as to amount only.

The appellant, a man aged twenty-eight at the time of the action in November 1977 received severe injuries in a motor vehicle accident near Goroka on 18th February, 1976. As a result of these injuries he remains a paraplegic. The vehicle was owned by his employer, Plantation Supply & Service Co. Pty. Ltd. (hereinafter called the Company) and at the time of the accident was being driven by a fellow employee. The appellant was a passenger in the front seat.

Exercising its rights under s. 55 of the Motor Vehicles (Third Party Insurance) Act 1974, the employer company was represented at the hearing of the original action by counsel who also appeared for the Motor Vehicles Insurance (P.N.G.) Trust (which for convenience I shall now refer to as the Trust). Appeal has also been brought by the Trust and by the Company against the learned trial judges award of costs. All the appeals were heard together and I shall return to the question of costs at the end of this judgment.

The learned trial judge assessed damages as follows:

K
General damages	115,000
Special damages	17,524.90
d>	132,524.90

The verdict was against the defendant Trust for the first K100,000 of that amount (being the limit of the Trust’s liability under the Motor Vehicles (Third Party Insurance) Act 1974) and against the Company for the excess, being K32,524.90.

In reaching the figure of K115,000 under the heading of general damages his Honour included items of special damages. I do not say this critically but merely to avoid confusion because there has been argument in relation to the award of K35,000 for pain and suffering and loss of amenities of life, that head of damages being more commonly called general damages.

The heads of damages were assessed as follows:

1. Loss of expectation of life

	K
800
2. Pain and suffering and loss of amenities of life	35,000
3. Future economic loss	39,000
4. Special equipment relating to paraplegia	12,000
5. Modifications to the appellant’s house to enable him to move freely in a wheelchair	6,400
6. Future medical expenses	2,000
7. Future nursing and housekeeping expenses	20,000
8. Future domestic help for holidays	2,400
9. Allowance for larger motor vehicle	1,000
10. Future household maintenance	1,000

The total of these amounts is K120,200. There were some other allowances made. His Honour then said:

“I have made the necessary adjustments. In any assessment of damages, there is an over-lapping between the amounts allocated to the various heads. In this particular case, quite a number of elements have been considered, and amounts provisionally allocated, and a demand must be made for the over-lapping which exists, while account is taken of the other aspects of damages mentioned but not quantified. Taking these matters into consideration, I consider that the general damages which the plaintiff should recover should be K115,000.”

PAIN AND SUFFERING AND LOSS OF AMENITIES OF LIFE

I deal first with the award of K35,000 under this head.

It was contended by counsel for the appellant that the learned trial judge was in error in assessing compensation under this head before assessing all other calculations and assessments. Reference was made to Hall v. Tarlington[cccvii]³⁶ where the Federal Court of Australia said:

“We accept, with respect, that the right approach is to ask, after all the other calculations and assessments have been made, what should be the amount for pain, suffering, and loss of amenities of life; that is to say, to assess the appropriate compensation, under this head, for a plaintiff for whom all other proper provision has been made.”

In my view, as a general principle, this view is correct but each case must depend on its own facts and I am unable to see that by dealing with this question first, there was necessarily an error of law.

The trial judge’s general findings of fact as to the pain and suffering and the loss of amenities are not attacked and indeed are accepted as being ones which were open and reasonable.

As the learned trial judge found:

“It is obvious that the plaintiff has sustained grievous loss under the head of pain and suffering. As paraplegia involves loss of sensation in parts of the body. The physical pain felt from the spinal injury itself and the major operation resulting, would not be as great as in some other forms of severe trauma where no such loss of sensation occurs; there would nevertheless have been considerable pain and discomfort, and there is the high probability of discomfort to come from sequelae, some instances of which have already occurred. There is the possibility that the Harington rods in his back may need at some time to be removed. The plaintiff’s suffering has been and will continue to be throughout the rest of his life — his expectancy is more than thirty-five years — of a high order; he is fully conscious of his condition. The plaintiff has now permanently lost many of the amenities of life he formerly enjoyed. The capacity for enjoyment of life having been grossly impaired, the damages for the diminution in the quality of his life must be of a high order and constitute the bulk of the award under this head. He was formerly an active physical man, enjoying a good marital family and working life; he is well aware of the deprivations he has sustained, he can no longer obtain the satisfaction and enjoyment he derived from all the things he would formerly do. In his working life he is now office bound, whereas his enjoyment had been in the outdoor aspects of work. I do not think these losses need to be further elaborated; they are patent, in view of his previous life-style as I have described it, and the anatomical nature of the injuries he received, and its consequences.”

The operative procedures to which he had been subjected and the further effects of his injuries are fully detailed in the careful exposition by the trial judge.

The fundamental principle is that the exercise of discretion by the trial judge in the estimation of damages ought not to be interfered with by an appellate court unless the trial judge has erred in point of law or in his approach to the assessment or unless the assessment itself, by its disproportion to the injuries received, demonstrates error on the part of the trial judge.

After considering the reasons which the trial judge has clearly expressed for making his award of damages, I have come to the conclusion, with respect, that his Honour fell into error in two respects in making the award of K35,000.

The first ground of error, in my opinion, was, that his Honour assessed the award on the basis that damages under this head were in the nature of consolation or solace for the condition created. It seems to me that that is an incorrect proposition. Admittedly, it is difficult to lay down principles for awards of damages for non-pecuniary loss but to my mind the word “solace” implies the giving of something in the nature of comfort to alleviate distress or disappointment. In my opinion that is inconsistent with the principle that damages are simply a sum of money given as compensation for the loss suffered as the natural result of the wrong done.

The trial judge found:

“It appears that all the judges in Carroll (The Administration of Papua New Guinea v. Carroll)[cccviii]³⁷ and Diaz (Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz)[cccix]³⁸ who considered the point, inclined to the view that damages under this head were in the nature of consolation or solace for the condition created.”

The first point to note is that Carroll’s case was overruled by Diaz’s case. From my readings of those two cases the only clear reference to that proposition was by Frost J. (as he then was) in Carroll’s case. Clarkson J. in Carroll’s case said[cccx]³⁹:

“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.”

The second ground of error, in my opinion, is that the trial judge unconsciously reapplied the decision in Carroll’s case rather than the now binding decision in Diaz. In this respect I agree with the judgment of the Deputy Chief Justice which I have had the benefit of reading in draft form. I have no need to restate his reasons for judgment but can shortly state my own expression of what I conceive to be the error. Diaz’s case overruled the proposition that damages for an Australian expatriate were to be reduced by twenty to twenty-five per cent as the damages had to be assessed according to the standards of fairness appropriate to Papua New Guinea. As I see it, the majority in Diaz were only reaffirming the principle that you take the plaintiff as you find him. The trial judge here found:

“For non-pecuniary loss the values of the Papua New Guinea community constitute the parameters of the award, and those values are determined by economic and other conditions.”

That to my mind suggests a retreat to Carroll’s case and is not taking the plaintiff as you find him. I agree with the trial judge that the head-note in Diaz’s case that:

“In assessing general damages (including future economic loss) for personal injuries in respect of expatriates injured in Papua New Guinea, no account should be taken of the particular economic conditions of Papua New Guinea”,

goes beyond what that case decided. The plaintiff in this case was an expatriate working in Papua New Guinea. Diaz’s case simply means that he is to be taken as such. Not that his circumstances should be decided without reference to the particular economic standards of Papua New Guinea nor that the Papua New Guinea community constitutes the parameters of the award.

I am of the opinion that the amount awarded by the trial judge is inadequate and that it ought to be increased. I do not believe that I am disadvantaged advantaged in assessing what that increase should be, as the trial judge’s findings of fact have obviously been arrived at with great care and his reasons expressed precisely. I would assess damages under this head at K60,000.

FUTURE ECONOMIC LOSS

Future economic loss was assessed at K39,000.

Under this head there are equally precise and careful findings of fact. Thus his Honour approached the problem by first assessing what “would have been”, had the plaintiff not been injured. It was likely that he would have remained in Papua New Guinea a further four years. He was a man of considerable ability and “on the way up” in his chosen sphere of agricultural sales and marketing with the capacity eventually to hold down a senior position. In Australia he would most likely have been a sales administration officer for the next few years. That salary level is $10,000-$12,000 per year. With his abilities and with further experience the probabilities are that he would have attained the level of marketing services manager. That salary is about $15,000-$18,000 per year. Thereafter the plaintiff might have expected to have become a marketing manager with a salary of about $22,000 per year together with an expense allowance and the use of a car. Thereafter there were possibilities of reaching the level of national sales director.

The position in which he now finds himself or the question as to what “will now be” as regards his future employment was found on the evidence to be as follows. He would be compelled to return to the town of Maitland where he has a home, family and friends. It was improbable, disability aside, that he could ever secure a position of marketing sales manager in that town. His Honour continued:

“His disabilities severely affect his capacity to perform the duties of certain positions he could otherwise have reasonably expected ultimately to hold, largely by destruction of the mobility those positions require. In practical terms, he must with his disability seek, and be restricted to an office-bound position. The one to which his present experience and background presently most fit him is that of sales clerk or telephone sales clerk, at about $10,000-$12,000 per year. From there the avenues of advancement available are restricted by his lack of mobility; they involve duties office-bound in their nature. In practical terms, the highest position to which he could reasonably attain would be that of office or administration manager; in a large office, this could command a salary of from $11,000-$14,000 per year. Positions of marketing or sales manager would not at any stage be likely to be open to him, through lack of mobility; the prospects of advancement may in practical terms be discounted.”

There then follows findings as to periods of unemployment which the plaintiff must inevitably experience. Thus his loss of future earning capacity is attributable to increased difficulties in securing and holding suitable employment and to the limitation of his prospects of advancement. His Honour then took into account that it is the after-tax salary which is to be regarded when estimating earning capacity and the judgment then continued as follows:

“I consider that the plaintiff, uninjured, could reasonably be expected to have worked until about aged sixty-five years, that is, a further thirty-six years or so of working life, and I assess on that basis. His pre-accident expectation of life was to age seventy years, and his expectation post-accident, about sixty-two years. I assume he will now work until age sixty-two. I bear in mind that there would be a saving on his maintenance in the ‘lost’ years.

I also have regard to the contingencies of life both as they might have impacted upon the plaintiff had he remained uninjured, and as they may now do so. I have already mentioned the relative unemployment risks. As to the risks of uncompensated ill-health and accident — once again the risk of losses due to their incidence would be more substantial for the plaintiff as he now is than as he would have been. For example it is estimated that he will require about one week every year in hospital for review; while the sequelae since 1976 point to a probability of further time off, for medical reasons. The net effect is to enlarge his loss.

The nature of the diminution of earning capacity in this case is such that its assessment is founded upon a consideration of conjectures, contingencies and probabilities which offer little scope for mathematical calculation.

Doing the best I can, considering the factors I have mentioned, I would assess damages under this head at the order of K39,000.”

These findings were attacked on two main grounds. First, that it was incorrect to say that there was little scope for mathematical calculation as there were clear findings as to the pre-accident and post-accident positions. Secondly, that it is not the after-tax salary which is to be regarded when estimating earning capacity but the gross salary. On this point there is a clear conflict between the House of Lords in British Transport Commission v. Gourley[cccxi]⁴⁰ and the High Court in Atlas Tiles Ltd. v. Briers[cccxii]⁴¹.

In my view the award of $39,000 under this head was inordinately low. I uphold the submission of counsel for the appellant that as his Honour had made quite clear findings of fact as to the pre and post-accident position that therefore the position is capable of arithmetical calculation. An examination of those findings demonstrates, in my opinion, that the award of $39,000 is inadequate. It seems to me, with respect, that this figure was not arrived at by any identifiable procedure. There are two main general methods of assessing future economic loss. The first and most common is to compare the pre and post-accident earnings of the plaintiff together with any contingencies. The second is the approach as illustrated in Dessent v. Commonwealth of Australia[cccxiii]⁴², to allow a percentage of the plaintiff’s pre-injury gross earning capacity. In other words if a person’s earning capacity is reduced by twenty-five per cent of his full capacity one takes twenty-five per cent of what he would have earned over his working life together with the appropriate allowance for interest and vicissitudes. In my view an examination of either method reveals the inadequacy of the amount which was awarded.

I propose to assess the damages by reference to the trial judge’s findings of fact as to the pre and post-accident positions.

A further point taken on this appeal is that the trial judge was in error in deducting a sum equivalent to the amount of tax which would have been payable in relation to future economic loss. In this regard there is a difference of opinion between the House of Lords in British Transport Commission v. Gourley[cccxiv]⁴³ and the High Court of Australia in Atlas Tiles Ltd. v. Briers[cccxv]⁴⁴ where it was held that that rule should not apply to the assessment of loss of income or of earning capacity in the case of awards of damages in tortious actions for compensation for personal injuries, Jacobs J. being of opinion however, that the rule should in such cases be applied to the past loss of earnings. In my view there are valid grounds for the criticism of Gourley’s case namely, inter alia, that the damages represent capital and not income, and that the income which will be derived in the future will in any event be subject to taxation. This is a complex area of the law, and perhaps the main objection to Gourley’s case is that it adds an unwarranted complexity to an already complex process! See Luntz, Assessment of Damages for Personal Injury and Death (1974), at p. 162.

However, in the trial there was no challenge to the rule in Gourley’s case, and it was common ground that it was the after-tax salary which is to be regarded when estimating earning capacity. Gourley’s case has been the law now for the past twenty years. The law that we are concerned with which is in force in Papua New Guinea is the English Common Law; see s. 16 Laws Repeal and Adopting Act 1921, and since Independence Sch. 2.2 of the Constitution. I am unable to say that Gourley’s case is inapplicable to the circumstances of Papua New Guinea. In the circumstances of this case and in the absence of full argument as to the conflict between Atlas Tiles Ltd. v. Briers[cccxvi]⁴⁵ and Gourley’s case I am of the opinion that the rule in Gourley’s case should be applied.

Under this heading I arrive at a figure of K70,000 as the result of the following calculations:

APPELLANT'S FUTURE WAGES AND SALARY LOSS

(Based on findings of fact and based on pre-tax figures.)

widt width=84 valign=top style='width:63.0pt;padding:0cm 5.4pt 0cm 5.4pt'>

260,490

<<> <<>

A. Position if uninjured	$
(1) P.N.G. employment (November 1977-February 1980) two years at $20,000	40,000
(2) In Australia (February 1980 — age sixty-five):
(a) Thirty-fiars as sales representativeative at $12,000 using six per cent tables ($230 a week)	179,083
(b) After “a few years” (say five years) as marketing service manager (wage $16,000 — $12,000 = $4,000) for thirty years using six per cent tables ($77 a week)	41,407
Allowance for contingency of ill health, premature death and unemployment is more than offset by promotion to marketing manager at $22,000 + car + expenses. Say $28,000.
B. Posi>Position as it exists	<
(1) P.N.G. employment (after February 1978)	Nil
(2) In Australia:
Assume he obtains a job as a sales or telephone clerk
($10,000-$12,000) 1978 and 1979 at $11,000 per year	22,000
(3) After February 1980 when appellant thirty years:
Balance of rking life — thirty-two years.
Sal telephone clerk at $11,000 a year over thirty-two yearsyears, i.e. $210 a week.	<
37,900 x 4 + 7,600 = 151,600 + 7,600 =	159,200
	181,200
Less contingency of unemployment and loss of wife’s assistance, say thirty-three and one-third per cent	60,400
	120,800
No allowance for any promotion as such not allowed in calculation. “A” and no wage increase is shown.	td>
C. Comparison son of uninjured and injured situations
Uninjured present value of future wages	260,000
Injured present value of future wages	120,000
Loss	$140,000
	K112,000

These figures however, are subject to deductions for taxation. Making such allowance I would award the sum of K70,000 under this head.

SPECIAL EQUIPMENT RELATING TO PARAPLEGIA

Under this head the trial judge made various findings as to the cost of various equipment. He then found as follows:

“I consider, all in all, that the total of requirements under this element should be allowed at an annual amount of about $1,094. Capitalising that, using the six percent tables, working on a life expectancy to age sixty-two years, and allowing for contingencies, I would allow $15,000 (K12,000) for this element.”

Counsel for the appellant submits first that this figure of $1,094 amounts to a cost of $21 per week. Taking into account the life expectancy of sixty-two years, the appellant is faced with their costs for a total of thirty-four years (as the appellant was aged twenty-eight at the date of the accident). Capitalising this figure using the six per cent tables gives a figure of $16,351. Why then, he asks, was this reduced to $15,000 for contingencies when there are no such contingencies known to exist? I find I agree with this submission. I am unable to see what those contingencies are, and I would reassess the amount under this head to K13,000.

FUTURE NURSING AND HOUSEKEEPING EXPENSES

The findings under this head were as follows:

“A fifth element of pecuniary loss is in the cost of future nursing assistance. I bracket this with the cost of providing household assistance to his wife; the two are inter-related. In practice, a great deal of the care and assistance which the plaintiff now reasonably requires will be supplied gratuitously by his wife; and to relieve her and enable her to sustain the extra strain imposed on her thereby, and by the very considerable amount of extra domestic work which the presence of a paraplegic in the house imposes on a housewife, some measure of assistance to her is warranted. That his wife is able to continue to cope effectively, without undue strain on their marriage, is basic to the plaintiff’s continued general well-being, and his ability to maintain an income, earning capacity and underpins the amount awarded under that and other heads.

It is common ground before me that Griffiths v. Kerkemeyer[cccxvii]⁴⁶ correctly expresses the law and the fair and reasonable value of the wife’s voluntary services, the need for which is created by his incapacity may be recovered. The services are reasonably necessary. The evidence of Dr. Yeo is that if the plaintiff were on his own, a full time housekeeper would be required, and to fulfil the created need in that way would be productive of heavy financial loss.

Dr. Yeo’s view was that fair and reasonable assistance would be a domestic help in the house for half a day, five days per week. The evidence of Mrs. Blackman of ‘Dial-an-Angel’ is that the rate is $4 per hour, though she agreed that persons such as widows might charge less. I consider that more favourable long-term arrangements could well be concluded in a place such as Maitland, but no evidence was adduced on the point.

In the circumstances, I think it reasonable to allow $36-$40 per week for this element; compounding that on a life expectancy to sixty-two years, using the six per cent tables, and making allowance for contingencies, I would make an award of the order of $25,000 (K20,000).”

It is clear as his Honour said that the wife’s continued presence is basic to these findings. There was much evidence on this point, and the fact that the appellant is now incapable of having sexual relations.

Thus Dr. John Yeo of the Royal North Shore Hospital, Sydney gave evidence as follows:

“I cannot emphasise how important it is that Mr. & Mrs. Kerr remain together as partners, because as my patient I am well aware of the fact that a paraplegic will only remain well both physically and psychologically if he has an understanding partner, and there is just so much an individual can take.”

Later Dr. Yeo was asked this question:

N2>“Q.     You said it was very important for this marriage to remain together, and that a paraplegic needs an understanding partner. Do you know any reason to believe Mrs. Kerr does not fulfil that role in the instances?

N2>A.       No, but I am old enough and wise enough now to realise that even in the most ideal circumstances a significant proportion of marriages do break up, and I am well aware that there are additional strains in this marriage which we spoke of yesterday in evidence, and I just believe it should be mentioned in evidence because it is a definite possibility.”

It seems to me that this possibility must be taken into consideration. Again, I cannot see why the award under this head has been reduced for some unspecified contingency. The more likely contingencies such as the wife’s absence are bound to be unfavourable to the appellant. On his Honour’s findings the wife’s continued presence underpins the appellant’s continued general well-being and his ability to maintain an income.

I should mention at this point that I am here dealing with questions of fact. This Court has in the past followed the decision in Edwards v. Noble[cccxviii]⁴⁷ that an appellate court should not set aside findings of fact by the trial judge unless it is satisfied that they are wrong. However, in the recent decision in Warren v. Coombes[cccxix]⁴⁸ the majority view was stated as follows:

“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”

I propose to adopt that course. Giving weight to the trial judge’s finding I believe the figures of $36-$40 per week must be accepted. However, I find that there should have been an allowance for the contingency of the possible loss of the wife, and there should not have been a reduction for unspecified contingencies.

Taking those figures and using the six per cent tables and making allowance for that contingency I would award the sum of K30,000 under this head.

LOSS OF EXPECTATION OF LIFE

The trial judge found:

“I conclude that he should attain the age of about sixty-two years, provided the pre-conditions are met. It is settled in this jurisdiction that this head of damage results in a small conventional award. For the reasons I set out in Garaiju Moruwu v. Sabeme Uve[cccxx]⁴⁹, I think the current conventional award is K800, and this should be awarded in this case, in the absence of evidence as to the decline in the value of money over the last eight years. The authorities show that it makes no difference to the amount under this head, whether the plaintiff be alive or dead, and that the amount is additional to damages recoverable for the mental suffering in knowing of the loss in life expectancy.”

In my respectful view the conventional sum is now K1,500 following the National Court judgment in Rokan Bayava v. Minisang Wankiar[cccxxi]⁵⁰. Clearly there has been a decline in the value of money over the past eight years. Furthermore in Sharman v. Evans[cccxxii]⁵¹, the High Court had cause to discuss this head of damage. Varying amounts from $1,250 to $6,000 were arrived at and they support, in my view, the general proposition that the amount should be increased.

I propose to follow the reasoning in Rokan Bayava v. Minisang Wankiar[cccxxiii]⁵² and I would award K1,500 under this head.

FUTURE MEDICAL EXPENSES

The award for this element was K2,000. In arriving at this figure his Honour took into account that the Medibank system in Australia protected the plaintiff against nearly all of the cost of the medical treatment he will incur.

Since the judgment the position has now altered, there having been changes to Medibank in November 1978 and May 1979. It is submitted that allowance must now be made for the changed position between date of judgment and of this appeal.

The Supreme Court has a wide discretion under s. 7 of The Supreme Court Act 1975, to give effect to such a change for an event occurring between judgment and appeal. That the court has such a discretion is supported by Curwen v. James[cccxxiv]⁵³; Murphy v. Stone-Wallwork (Charlton) Ltd.[cccxxv]⁵⁴; Mulholland v. Mitchell[cccxxvi]⁵⁵.

Although the general principle is that damages are assessed at the trial once an for all, though the plaintiff might finally suffer greater loss than was anticipated, an appellate court has power in exceptional cases, to hear evidence of something which had altered the effect of an order of the court below since it was made, if the particular exigencies of justice clearly outweighed the general undesirability of doing so.

I would not disturb the award of K2,000. I do not think the changed circumstances are sufficient to warrant the court’s interference. The Medibank system has been notoriously subject to change, and may well change again. For this reason I believe this Court should not interfere.

OTHER FINDINGS

The other awards were not challenged and therefore remain. I would thus assess damages as follows:

K

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187,900

1. Pain and suffering and loss of amenities of life	60,000
2. Future economic loss	70,000
3. Special equipment relating to paraplegia	13,000
4. Modifications to the appellant’s house to enable him to move freely in a wheelchair	6,400
5. Future medical expenses	2,000
6. Future nursing and housekeeping expenses	30,000
7. Future domestic help for holidays	2,400
8. Allowance for larger motor vehicle	1,600
9. Future household maintenance	1,000
10. Loss of expectation of life	1,500

The special damages of K17,524.90 were not challenged.

The total verdict will therefore be as follows:

	General damages	187,900
Special damages	17,524.90
	205,424.90

In conclusion I wish to make the following comments.

In my view the limit of the Trust’s liability to an amount of K100,000 for bodily injury to any one person may lead to great injustice in some cases. Awards above this amount are now not uncommon. They are not limited to expatriates. There has recently been an award of over K116,000 to a Papua New Guinean following injuries suffered in a motor-bike accident. To raise the level of compensation would be no more than just to plaintiffs and would ruin no one. It might result in some moderate increase in premium rates, which no one would relish but of which no one, in my view, could justly complain.

There should be a verdict in this case, in my opinion, for the plaintiff in the sum of K205,424.90.

Since reaching this amount I have had the advantage of reading in draft form the judgment of The Deputy Chief Justice and of my brother Pritchard. I agree that in the circumstances the final award should be K200,524.90.

I agree the orders for costs as proposed by The Deputy Chief Justice.

The reasons for the order as to costs will be given by me at a later date.

PRITCHARD J: These three appeals arise from an action brought by the first appellant (hereinafter called “the appellant”) in the National Court, claiming damages for personal injuries received in a motor vehicle accident. The action was brought against the third appellant (hereinafter called “the Trust”) as all such claims must be, since the coming into force of the Motor Vehicles (Third Party Insurance) Act 1974 (hereinafter called “the Act”). The action was defended by the Trust and also by the second appellant (hereinafter called “the Company”), it being the owner of the vehicle concerned and having a right of representation by virtue of s. 55 of the Act. This right of representation is easily understood, because under s. 49(2)(a)(i) of the Act, all liability incurred by the owner of a vehicle in respect of bodily injury to any one person, is the responsibility of the Trust only to an amount of K100,00 Any sum in excess of that may be awarded against the vehicle owner.

In the present case the appellant was rendered paraplegic in an accident in which the Company’s vehicle overturned. The appellant was employed by the Company and the vehicle was being driven by a fellow employee. A large award of damages was a clear possibility and the Company joined forces with the Trust in defending the action, being represented by the same counsel, although by different solicitors. Negligence was admitted and the defence was based on the contributory negligence of the appellant, the allegation against him being that he failed to make use of a seat belt with which the vehicle was equipped. This defence failed in the judgment of the trial judge and no appeal has been instituted in this regard and it is therefore irrelevant to these appeals.

The trial judge awarded the appellant K132,524.90 damages and entered a verdict against the Trust for K100,000 and against the Company for the excess of K32,524.90. At that time the question of costs was reserved for later argument and in a subsequent judgment his Honour made an order for costs in favour of the appellant against both the Trust and the Company, specifically stating “He may enforce it against either or both of them, as he chooses; they are both liable for the whole of his proper costs.”

The appeals before this court are firstly by the appellant on the ground of inadequacy of the damages, secondly by the Company claiming that under the Act it cannot be made responsible for costs in any way and thirdly by the Trust, claiming that under the Act its maximum liability in any regard is K100,000 and that any costs above that sum must be added to the excess for which the Company is responsible. The appeals were argued before this Court in that order and I will deal with them accordingly.

In considering the first appeal it would seem to be most convenient to consider the basis upon which the learned trial judge reached his final verdict and then to consider the evidence upon which his Honour’s reasons were founded in relation to the various heads of damage.

The verdict was for K115,000 general damages and K17,524.90 special damages. The special damages do not concern us. His Honour reached the figure of K115,000 after examining tentative amounts he had allocated to various heads of general damages in an interim judgment some days earlier. It is perhaps appropriate to set those amounts out now, as not all of them are challenged on this appeal, and it will only be the findings and evidence relating to those which are challenged which need to be considered, except of course to the extent they may overlap.

The various heads of damage, the amounts allocated to them and the order in which they were determined in the judgment of the trial judge are as follows:

<	K
1. Loss of expectation of life	800
2. Pain and suffering and loss of amenities of life	35,000
3. Future economic loss	39,000
4. Special equipment relating to paraplegia	12,000
5. Modifications to the appellant’s house to enable him to move freely in a wheelchair	6,400
6. Future medical expenses	2,000
7. Future nursing and housekeeping expenses	20,000
8. Future domestic help for holidays	2,400
9. Allowance for larger motor vehicle	1,600
10. Future household maintenance	1,000

The total of all these amounts is K120,200. In addition the trial judge recognized that an allowance would have to be made for specially made clothing and shoes which the appellant’s condition made necessary.

In reaching the final figure of K115,000 his Honour said:

“I have now made the necessary adjustments. In any assessment of damages, there is an over-lapping between the amounts allocated to the various heads. In this particular case, quite a number of elements have been considered, and amounts provisionally allocated, and a demand must be made for the over-lapping which exists, while account is taken of the other aspects of damages mentioned but not quantified. Taking these factors into consideration, I consider that the general damages which the plaintiff should recover should be K115,000.”

The verdict of the trial judge was thus a total of K132,524.90. Of the ten heads of damage above set out, items 5, 8, 9 and 10 are conceded by Mr. McAlary Q.C. for the appellant to be based on findings of fact only and are thus not challenged on this appeal. In relation to the other heads of damage, with the exception of item 6 (future medical expenses), the appellant asserts that the trial judge fell into errors of law in assessing the figure under each head, and as a necessary consequence, the final assessment of general damages was in itself in error and inadequate on the evidence found established at the trial. Item 6 is challenged on the basis that the Medibank entitlements in Australia upon which the K2,000 found under this head was based had changed since the trial and that fresh evidence should be admitted in support of an argument for this amount to be increased. Subject to final ruling evidence was admitted by us on this aspect.

I will leave aside for the moment the question of damages for loss of expectation of life. On the matters of pain and suffering and loss of amenities of life I set out the relevant sections of the judgment of the trial judge on these aspects.

His Honour said:

“The plaintiff was born in the Maitland area of New South Wales on 29th June, 1949; so he was twenty-six years of age, rising twenty-seven, at the time of the accident. He received his secondary education at Newington College in Sydney, obtaining his Higher Schools Certificate in 1966. The evidence establishes that while at school he was a good sportsman and athlete: he played in the First XV, coxed the Junior 8, was a member of the swimming and gymnastics teams, and played cricket at “A” level. During his school years he surfed as a member of Queenscliff Surf Life-Saving Club, skied and rode horses. After school, his interests in an outdoor life led him to attend Hawkesbury Agricultural College from 1968-1971, whence he graduated with the Diploma in Agriculture. At the College, he played for the First XV and was secretary to the Ball Committee. It is clear that his career training, and his interests, lay in the agricultural area, in farm or property management. The plaintiff married in January 1971. While at the College and after he left, until 1973, he worked in a variety of jobs on rural properties all involving hard manual labour.”

After discussing some of the employment history of the appellant his Honour went on, referring to the year 1973:

“I should say at this stage that on the evidence I consider the plaintiff was at this time a keen young man, with a bent for the outdoor aspects of his work. I accept the evidence of Mr. Reynolds, whom I found a witness of truth, that the plaintiff was quick to learn, intelligent and energetic, and had good relationships with the customers.”

His Honour then discussed the appellant’s further work record and the purchase of his home in Maitland, New South Wales in April 1975. His Honour went on:

“By this time the plaintiff and his wife had two children. They lived in this house for about ten months. During that time the plaintiff assisted in the building of a courtyard at the rear, and he says his intention was to ‘do the house up’ completely, carrying out most of the work himself. The evidence is that at this time of the plaintiff’s life, and until he came to Papua New Guinea a few months later, he had kept up to some degree his sporting interests: he played regular social tennis and squash, and he took his children swimming at weekends. He and his wife led the normal family life of a young married couple with two young children, with social outings, theatre-going, and so on. His health was good, he was strong, and suffered no illness or disabilities.”

His Honour then dealt with the reasons for the appellant coming to Papua New Guinea on contract employment with the Company and the details of that employment. This was in February 1976 and within a few days the accident took place. After describing the accident and the appellant’s finding himself on the ground some ten to fifteen yards from the overturned vehicle, his Honour continued:

“The plaintiff found that he was unable to move his body from the waist down, nor could he move his right arm; it was later found that his right shoulder was dislocated. He felt great pain in his shoulders; and he had no feeling in the lower parts of his body. The evidence is that in fact he had sustained a fracture dislocation of the T12 vertebra. There was serious crushing of the spinal cord at that level, the bony fractures encroaching on the spinal canal. The T11 vertebra had been displaced forwards on T12, with a narrowing of the intervening disc space. He probably also had a fracture of the posterior inferior lip of the body of T11. The consequence of the damage to the cord was that the plaintiff has a complete and permanent paraplegia with loss of sensation below the T12 or L1 spinal level. He has no significant movement in either lower limb. In the present state of medical knowledge no recovery is expected and he will always require a wheelchair to move around.

The plaintiff was taken to Goroka Hospital. He does not recall much about his stay there; he was under sedation.

Within a few days, the plaintiff was transferred to the spinal unit of the Royal North Shore Hospital in Sydney; he was admitted on 22nd February. There he came under the care of Dr. Yeo, a specialist in paraplegia, whose testimony before me was extremely helpful. The plaintiff was informed that he was permanently paralysed from the waist down. He spent only eight weeks in the unit at this time, a period which Dr. Yeo thought was probably the shortest initial period spent there ever, by a paraplegic. This was perhaps attributable to the surgical procedures adopted. On 24th February, the plaintiff was operated on by Professor Taylor; rods were inserted into the spinal area, and bone was grafted from the left hip, around these rods. The objective was to stabilise the fracture dislocation, so as to get the patient more quickly out of bed and back to work. The evidence is that the operation was successful; there is now an adequate solid bone formation around the fractured vertebra and the rods, and there should be permanent spinal fusion over a distance of six to eight inches.

Following this operation, for some time the plaintiff was not allowed to move. From time to time, he was lifted up and down by attendants, to prevent pressure sores developing. He was washed, and his bowels were evacuated by hand. His back was painful. He suffered urinary infections from time to time, and once became quite ill as a result; however, these infections were treated adequately by antibiotics.

Gradually, he was taught how to carry out his own bodily functions. For about five weeks he had an in-dwelling catheter. He was taught how to evacuate his bladder and his bowels. He underwent an intensive rehabilitation programme. He felt ‘phantom’ (but real) pains in his limbs, for which he had to take alleviatory drugs; this is a continuing problem. Following the operation, and for the next six months, he wore a brace or jacket. Within two weeks or so, he was able to sit up in a commode chair, for bowel movements. He learned how to transfer himself from bed to wheelchair, without assistance; and how to use the commode chair, for showering.

Meanwhile the dislocation of his right shoulder had been remedied, and use of the arm had improved. The evidence is that there is no clinical abnormality, though he will be more susceptible to arthritis in that region in later years, because of the dislocation. He complains still of pain if he lifts something heavy in his right hand. I should say here that I consider that general damages for this injury must be of a minor order.

The evidence is that at this stage, despite the excellent physical adjustment he was making to his condition, the plaintiff was very upset emotionally over the fact that he would never walk again.

The plaintiff left the unit on 18th April, and returned to his home in Maitland. He took with him wheelchairs and other necessary equipment. Over the next four and a half months he paid five visits to the unit for a review, further training and physical therapy. Then on 22nd August he was re-admitted for a week’s further intensive rehabilitation, and the polythene jacket he had hitherto worn to inhibit rotation and flexion of his spine, was removed.

At his home in Maitland, the plaintiff found himself largely confined to the house. A ramp had been constructed to the front door after the accident, but it was too steep to enable him to take his wheelchair outside. He found the bathroom doorway too narrow. The toilet was too small, and he needed help to get his chair over the bowl. In the bathroom there was the usual step to the shower recess, which effectively prevented his obtaining access by himself. In short, his home which was quite suitable for a man with the use of his legs, was not at all suitable for the life-style imposed upon a man confined to a wheechair, and with a special toilet regimen. The cost of necessary modifications to his home, particularly for access, is an element in his damages, and will be dealt with later.”

After discussing the appellant’s return to Papua New Guinea to continue working for the Company, his duties with it and the problems involved his Honour went on:

“Despite this hindrance to his carrying out his duties, the plaintiff has encountered and quite successfully overcome the special difficulties encountered by a paraplegic in carrying out his work. He rises early, and takes about one-half to three-quarters of an hour on the toilet; manual evacuation of the bowel is involved. Then he showers in the commode chair and wheels himself back to the bed, to transfer thereto and dry himself. He dresses, and transfers to the electric chair to take him to his car, which is specially equipped for hand controls, and drives to work, dropping the children at school on the way. He has found himself late for work on quite a few occasions, due to troubles with toilet matters. The lightweight chair in the car is taken out by a staff member, he transfers to that and remains in it during work. Special ramps now built at his work situation enable him to get about. It is clear he copes as well as may be. Nevertheless, he encounters difficulties. Due to lack of voluntary control of the urinary function, there is a permanent attachment to the penis leading to a bag strapped to the leg. From time to time — the plaintiff estimated two to three times a week — the uridome bursts at work, and his trousers are drenched, necessitating a trip home to change. Similar consequences flow from bowel incontinence. There is the problem of a painful back, when he has to sit up for lengthy periods. He has to be careful to avoid the development of pressure sores, which would necessitate a lengthy period off work.”

And later:

“By night, he needs a urinal bottle in bed with him, and it will usually fill up during the night. To avoid the possibility of pressure sores developing, he has to change his position in bed every two hours; pressure sores would prevent his sitting in the wheelchair, and, being slow to heal, would put him off work for two to three months. He is unable to have sexual intercourse with his wife; he is capable only of infrequent, poorly-sustained and non-functional erection. This will be a permanent condition, and it is a serious loss, which he feels badly.

As I mentioned earlier, he is able to carry out his own washing and toilet arrangements and dress himself, in a suitable environment. The evidence is that he manages the problems of paralysed bowel and bladder very well.

The plaintiff has had medical problems, secondary to his paraplegia, as commonly occurs. He has suffered bladder infections, to which paraplegics are peculiarly susceptible; there is as yet no evidence of his kidneys being involved in any urinary tract infection. In April 1977 he had a fever, a swollen thigh and ultimately distal leg swelling, probably due to partial rupture of tendons in the right thigh, following muscle spasm secondary to paraplegia. This hospitalised him for a week; there was initially it appears wrong diagnosis, but he is now recovered. At Christmas 1977 the plaintiff injured his hip when he fell backwards out of his wheelchair going down an incline. This will result in his requiring further medical treatment in Sydney. The evidence is that this kind of accident may be expected; he has already tipped over about a dozen times.

The plaintiff has to be careful of what he eats so as to avoid, as far as possible, the onset of diarrhoea. Despite his precautions, he estimates that he has soiled the sheepskin rug in the car some sixteen times in the period of eight months.

He limits his intake of beer to two cans. He finds difficulty in getting his wheelchair under the tables in restaurants, and getting in and out of theatres. In fact, in Goroka, he has restricted going to the shops or markets, as he finds that his presence attracts large gatherings.

Normally, he spends his weekends at home, and friends visit.

He is unable to play games with the children — the two boys are about seven and four years and there is a baby girl about two years old — and the fact that there is little he can do has led to some problems of discipline with them.

He has suffered the usual wasting of the lower body; his body weight is reduced from ten and a half stone to eight and a half stone.

In September 1977 the plaintiff and his wife went overseas for six weeks on a combined business/pleasure trip, to several countries. They had to take the normal economy fare ticket, to obtain the stop-overs necessary for the plaintiff to cope. There were problems in getting on and off planes; in most places, he was unloaded by a forklift. Because of the need for lengthy use of bathroom and toilet, they had to use more expensive accommodation with private facilities. They could not travel by train, and incurred the extra expense of car rental. They encountered problems in obtaining necessary medical supplies. The plaintiff calculates the additional costs incurred in coping with his disability over these six weeks, at K3,212. It is a good illustration of the determination and capacity of the plaintiff not to be dominated by his disability, as well as an indicator to the complications he now faces.

I think it fair to conclude that the injuries suffered in the accident of February 1976 have affected a permanent transformation in many aspects of the plaintiff’s non-working life. I accept Dr. Yeo’s assessment that the plaintiff is well motivated, and his rehabilitation has reached a very high expectancy. He is battling manfully with a serious disability.”

That is the evidence as found by his Honour relating to and touching the question of damages for pain and suffering and loss of amenities of life.

I turn now to the question of damages for pecuniary loss. The appellant up to the time of trial, had suffered no loss of earnings. His claim for economic loss was based entirely on the future. His case was conducted on loss of future earning capacity and in fact the Trust and the Company called a witness, a Mr. Lloyd, a management consultant, to give evidence on the appellant’s prospects. His evidence was to the effect that there was no loss of earning capacity. This evidence was not accepted by the trial judge and Mr. McAlary relies on the following findings of fact in relation to this ground of the appeal. They are twelve in number and are quoted directly from the judgment:

N2>1.       “I am satisfied ... that his present beneficial employment is due to somewhat unusual circumstances and it is not a situation which will long continue.”

N2>2.       “I have no doubt, despite the evidence of Mr. Lloyd, that he has suffered such diminution; his lack of mobility makes him desk-bound, and in many other ways the condition of paraplegia adversely impacts upon the routine of his working life. I so find, despite the efficient manner in which he has demonstrated he can cope in large measure with his present responsible duties.”

N2>3.       “I am satisfied that the plaintiff’s time working in Papua New Guinea would in any event have been only a few years, and that the probabilities are that he would have spent the rest of his working life in Australia. A reasonable estimate of the time he would have spent here, would be four years.”

N2>4.       “It appears from the evidence of the management consultants, which I accept, that the probabilities are that the plaintiff would not have been able to secure in Australia a position of marketing services manager, at this stage of his career and experience, even had he remained uninjured.”

N2>5.       “It would be wrong, in my opinion, to take his present salary in Papua New Guinea as being a starting point in the assessment of his damages; that salary is peculiar to Papua New Guinea, while it is Australia that is and would have been the plaintiff’s work arena. I find that, in the Australian environment, the level of employment he could presently reasonably expect to attain, leaving aside his disability, would be that of a sales administration officer. I think that that would probably be the case, for the next few years. The evidence is that the salary level of that position is about $10,000-$12,000 per year.”

N2>6.       “I am satisfied that in a few years, with his abilities supported by further experience, the probabilities are that he would have attained the level of marketing services manager. The evidence is that the salary for that position is about $15,000-$18,000 per year. The position appears to be peculiar to the larger companies and therefore available opportunities would be in the larger cities. In small companies the duties of that position are amalgamated with those of sales manager or marketing manager, both of which have a requirement of mobility. It appears that further advancement in this sphere lies through the position of product manager to that of sales or marketing manager. A marketing manager commands a salary of about $22,000 per year, together with an expense allowance and the use of a motor vehicle.”

N2>7.       “Thereafter, advancement is to the level of national sales director. In practical terms, I consider that a position equivalent to that of marketing or sales manager is the highest to which the plaintiff might reasonably be expected to have possibilities of obtaining, during his working life, though I bear in mind the possibilities of even further advancement.”

N2>8.       “He sees himself as being compelled to make his future life in Maitland, the centre where he has a home, family and friends. I find that reasonable and probable. The evidence is that Maitland is a town of some 32,000 people, some thirty-two kilometres from Newcastle, a city of some 300,000. It is improbable, disability aside, that he could ever secure a position of marketing services manager, or some position similar, in any company, in as small a place as Maitland; Mr. Smith, an expert in the management selection field, considered the chances were extremely small almost negligible. Newcastle, however, offers possibilities. While the plaintiff could eventually carry out the duties of a marketing services manager, were it tailor-made by a sympathetic employer to suit his disabilities, much as is his present position and environment, his chances of securing such a position at any time must be low.”

N2>9.       “His disabilities severely affect his capacity to perform the duties of certain positions he could otherwise have reasonably expected ultimately to hold, largely by destruction of the mobility those positions require. In practical terms, he must with his disability seek, and be restricted to, an office-bound position. The one to which his present experience and background presently most fit him is that of sales clerk or telephone sales clerk, at about $10,000- $12,000 per year.”

N2>10.     “From there, the avenues of advancement available to him are restricted by his lack of mobility; they involve duties office-bound in their nature. In practical terms, the highest position to which he could reasonably attain would be that of office or administration manager; in a large office, this could command a salary of from $11,000-$14,000 per year. Positions of marketing or sales manager would not at any stage be likely to be open to him, through lack of mobility; the prospects of advancement may in practical terms be discounted.”

N2>11.     “Bearing in mind Dr. Yeo’s assessment of the plaintiff — which I accept — as a very good example of a very employable paraplegic, I consider that despite his demonstrated high ability to work, and that he presents extremely well, he will have considerable difficulty in securing and retaining employment in the field to which he is best suited. He is disadvantaged not only by reasons of his immobility, but because of the need that his working environment be shaped to fit him to some degree, and that he be physically located so as to cope with the everyday contingencies incident to paraplegia.”

N2>12.     “I conclude that there is a real risk that the plaintiff will suffer periods of unemployment, substantially more than those he might reasonably suffer were he not so disabled.”

After discussing various other matters his Honour then said:

“The nature of the diminution of earning capacity in this case is such that its assessment is founded upon a consideration of conjectures, contingencies and probabilities which offer little scope for mathematical calculation.

Doing the best I can, considering the factors I have mentioned, I would assess damages under this head at the order of K39,000.”

It is in the first paragraph in this last quoted portion of the judgment that the appellant takes issue with the learned trial judge.

Since writing this portion of this judgment I have been on circuit and since my return have had the advantage of reading in draft the reasons of the Deputy Chief Justice and my brother Andrew. For the reasons they advance I agree that the award of K800 for loss of expectation of life should be increased to K1,500. I similarly agree that the sum of K12,000 for special paraplegic equipment should be increased to K13,000 as I too can see no reason that there should be a reduction for contingencies. For the reasons my breathren also advance, I agree that the allowance of K2,000 for future medical expenses should not be altered by virtue of the change in the Medibank entitlements in Australia since the trial of the action.

On the question of damages for pain and suffering and loss of amenities of life I agree with the reasons advanced by my brethren for increasing the award of the trial judge together with their interpretation of the law appropriate to this matter. I would assess damages under this head at K60,000.

On the question of damages for future nursing and housekeeping expenses I agree with the reasons of my brother Andrew on this matter and with the assessment he makes in the sum of K30,000.

On the final head of damage, namely future economic loss, I agree the amount of K39,000 allowed by the trial judge was too low. In the paragraph prior to that determining this figure in the passage from the judgment of the trial judge above set out, his Honour spoke of there being “little scope for mathematical calculation.” Mr. McAlary, in spelling out the specific findings made by his Honour, says that those findings do permit calculations to be embarked on, and that his Honour having made the findings, failed to utilize them as he should have.

In Baird v. Roberts[cccxxvii]⁵⁶ Mahoney J.A. said this:

“... if the basis upon which parties seek to have compensation assessed is that there is likely to be a difference between the plaintiff’s pre- and post-accident possible earnings, in a sense to which I have referred, it is necessary that the trial judge be in a position to draw inferences as to what is likely to be the difference between the two, and that, in some cases, if evidence was not available to establish that, e.g. the range of activities available to the plaintiff in his injured condition would produce less than he was earning or likely to earn in his uninjured condition, the court might proceed, or be forced to proceed, upon the basis that, whilst he had a reduction in economic capacity, it had not been shown that that reduction would in fact be apt to result in less by way of remuneration.”

Later his Honour said[cccxxviii]⁵⁷:

“The overall onus of proof of loss lies upon the plaintiff. But, in cases where compensation is to be assessed for the reduction of economic capacity, this must not be confused either with the question of where the practical burden of producing evidence lies at any particular point in a trial, or with the question of what evidence is apt to be sufficient to produce in a trial judge, or in so far as it may be relevant, in this Court, the appropriate satisfaction as to the existence of such loss, or element of loss, as the party seeks to establish. There will, no doubt, be cases in which the absence of evidence of the kind to which I have referred, may result in a trial judge holding that, as a matter of law, there is not sufficient evidence to allow an inference to be drawn as to a difference between pre- and post-accident possible earnings. More frequently the effect of the absence of such evidence will be that the judge (or this Court) will refuse to draw the conclusions of fact which, though open to him, he will not be satisfied should be drawn.”

In this case at the trial, evidence was adduced by the appellant to enable the trial judge to draw such inferences. The defence, in order to counter this, called a management consultant, one Lloyd, to give evidence that the appellant would suffer no loss of earning capacity. It is clear that his Honour did not accept this in making the findings he did which in my view were as specific as one might ever find in a case such as this.

Mr. McAlary put to us some calculations. Mr. Griffin who appeared for the Company attacked a number of these but in my view Mr. McAlary convincingly argued the validity of this approach to assessing damages under this head. These calculations appear in the judgment of my brother Andrew and I agree with them. I agree with both my brethren that in Papua New Guinea it is the after tax figure which must be accepted. I too, therefore, assess damages under this head at K70,000.

On all the ten separate heads of general damages the figures on my addition now total K187,900. One matter yet remains to be considered. Twice in the judgment of the trial judge, his Honour stressed that the continuing strength of the marital tie between the appellant and his wife which was basic to the appellant’s continued general well-being and his ability to maintain an income-earning capacity, underpinned his assessment of damages in several areas. The marriage had been and was at the trial, despite the inherent problems which the paraplegia created, a happy one. There was no evidence that this would not continue. There was some unsatisfactory evidence of a somewhat higher divorce rate in these cases in California. However where the trial judge I believe was wrong, was not to take into account that this marriage, like all marriages, may not in fact last. There was of course no evidence that such marriages are more likely to last than others and I therefore have approached my assessment of damages on the basis that here, as in any marriage, there is a real possibility of breakdown. The divorce rate in today’s modern society as we all know, is quite high, and to ignore that fact is in my view wrong.

This approach therefore results in possible overlapping and having considered the overall position, I reduce the total I have reached to K183,000 to which must be added the special damages of K17,524.90 a verdict of K200,524.90.

Judgment on costs.

RAINE DCJ PRITCHARD ANDREW JJ: The first appeal on the question of costs is by the Company which asserts that because it is not a “party” to the action, but merely had a right of “representation” under the Act, no order for costs could be made against it. His Honour the trial judge at a hearing subsequent to the trial itself had made an order for costs against the Company and the Trust in favour of the appellant, saying:

“He may enforce it against either or both of them as he chooses, they are both liable for the whole of his proper costs. Since the damages recovered are in excess of K100,000 there is no question of the Company being indemnified under the Act by the Trust as regards the payment of any part of the plaintiff’s costs, or its own costs.”

Two points should be made now. The first is that the original writ of summons dated 18th March, 1977, claimed only K100,000. Although no amendment is shown on the writ in the appeal book before us, the claim was obviously amended, for in the pleadings dated 29th August, 1977, the statement of claim (itself dated 25th May, 1977) showed the amount claimed as being K300,000. The second point is that at the trial of the action both the Trust and the Company were represented by the same counsel instructed by different solicitors, but in view of the conflict which clearly arose over costs, each was separately represented by counsel when that question was later argued before the trial judge. The latter situation prevailed of course on the appeal before us. Mr. Griffin, who had appeared for both the Trust and the Company at the original trial, appeared only for the Company before us, both on the major appeal and on the Company’s appeal on costs.

Mr. Crooke of counsel appeared for the Trust before us and the main basis of argument on that appeal is that under the Act the Trust’s liability is fixed at a maximum of K100,000, including any liability as to costs.

It is necessary, in order to consider both these appeals to consider the relevant sections of the Act. Section 48 makes it mandatory for the owner of a motor vehicle to insure that vehicle with the Trust against damages for death or bodily injury arising out of the use of the motor vehicle to the amounts set out in s. 49(2)(a) of the Act.

The latter sub-section reads as follows:

N2>“S49(2)         A third-party insurance cover issued under Subsection (1):

(a)      where it is issued in relation to a particular motor vehicle, insures the owner of that motor vehicle and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally against all liability incurred by that owner and that person jointly or by either of them severally in respect of the death of or bodily injury to a person caused by or arising out of the use of the motor vehicle to an amount not exceeding:

(i)       K100,000 in respect of the death of or bodily injury to any one person in any one case; and

(ii)      K500,000 in the case of any one accident or series of accidents arising out of the one event; and ...”

Section 53 sets out the duties of owners and drivers, in the event of accident causing death or bodily injury. These include notification to the Trust of the accident, with particulars, providing information and taking steps reasonably required by the Trust, a prohibition without the Trust’s consent against making offers of settlement or admissions of liability, an obligation to notify the Trust of any claims and a prohibition without the Trust’s consent against incurring expense in litigation in respect of any liability against which he is insured. A penalty of K100 is provided for breach of this section.

The relevant sub-sections of s. 54 are:

N2>“S.54  Claims for damages

(1)      Subject to Subsection (2), from the date of commencement of this Act, every claim for damages in respect of the death of or bodily injury to any person caused by or arising out of the use of:

(a)      a motor vehicle insured under this Act; and

(b)      an uninsured motor vehicle in a public street; and

(c)      a motor vehicle upon a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the Trust and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the Trust and not against the owner or driver of the motor vehicle.

(5)      Where an award of damages is made by a Court in respect of a claim under Subsection (1) which exceeds the amount of liability of the Trust specified in Section 49(2)(a), the Court shall, at the time it makes the award, determine against whom (if anyone) the excess shall be awarded and that award shall operate as a judgement against that person for all purposes.”

Section 55 provides:

N2>“S55   Owner and driver may be represented in any action for compensation

Where a claim for damages under Section 54(1) is made against the Trust, a copy of the claim shall, where possible be served on the owner, and where the owner is not the driver, also on the driver, and the owner and driver may be represented on the hearing of the claim as though they were a party to the action.”

Section 58 provides:

N2>“S58   Settlement, etc., by Trust

(1)      The Trust:

(a)      may undertake the settlement of a claim against it or any other person under this Act; and

(b)      shall indemnify a person insured under this Act against all costs and expenses incidental to proceedings under this Act to the amount specified in Section 49(2)(a).

(2)      The person referred to in Subsection (1) shall sign all such warrants and authorities as the Trust requires for the purpose of enabling it to have the defence or conduct of any proceedings referred to in that subsection and, in default of his so doing, the Court in which such proceedings are taken or had may order that they be signed by the Trust on behalf of that person.”

We would firstly say that we believe certain provisions of the Act are inadequately drafted. Mr. Griffin claims that the words “as though they were a party to the action” in s. 55 by necessary implication must mean that an owner who seeks to be represented under that section is not a party. We do not agree. Under s. 54(5), where a claim is of such magnitude that an award of damages in excess of the amount of liability of the Trust specified in s. 49(2)(a) may be made, the excess can be awarded against an owner and it operates as a judgment. The owner who is so liable and who avails himself of the right of representation under s. 55 is in exactly the same position as a defendant in an ordinary action. He is being sued in negligence as owner, for the excess the Trust does not have to pay, and judgment can be given against him. This is made even more obvious when one looks at the last part of s. 54(1) where the provision that proceedings to enforce a claim for damages shall be taken against the Trust and not the owner is specifically made subject to the provisions of sub-s. (5) of the section. That demonstrates quite clearly that in such a case, where an excess is a possibility, the proceedings to enforce the plaintiff’s claim are in fact being taken against the owner as well as the Trust. That we believe also, is the significance of the words “any other person” in s. 58 of the Act.

Why the Act does not provide that an owner in such a case is a defendant we do not really understand. The only suggestion we can make is that s. 55 also gives the right to an owner of an uninsured vehicle to be represented who may of course not be in an “excess” situation and may well want to minimise his liability to re-imburse the Trust if a verdict is given against it.

Under the National Court Rules, O. 3, r. 5, all persons may be joined as defendants against whom the right to any relief is alleged to exist and it is our view that even though the Company was not originally sued, the moment the claim was increased into the “excess” situation by amendment from K100,000 to K300,000, it could have been added as a defendant. The fact that it was not does not matter now, but we stress that it is our view that the Company here and any owner or driver involved in a claim where an “excess” award can be made is a defendant in the recognized sense of the word, with all the rights of a defendant under the Rules, subject of course to the limitations imposed on him by the Act vis-a-vis the Trust.

Mr. Griffin submits that the fact that the owner is subject to possible detriment for this reason offends the notion of justice. It may be regrettable, but it is the price he has to pay for the protection the Act gives him, limited in amount though that may be.

Under O. 91, r. 1, costs are in the discretion of the court. No doubt orders will vary depending on the degree of participation in the conduct of the action by the Trust and an owner where the plaintiff succeeds. Here however, at the trial, both the Trust and the Company through the one counsel fought the plaintiff on the issue of contributory negligence, which failed, and quantum. Subject to our decision on the Trust’s appeal, we see nothing objectionable in the order for costs his Honour the trial judge made.

The argument on the second appeal stems from the wording of s. 42 where the maximum limits are laid down in respect of “all liability ... in respect of the death etc.” The Trust says that if it incurs a liability for costs where the costs, added to the award of damages, exceed the statutory maximum, that excess should be awarded against the owner. We do not agree. Section 42 must be looked at in the light of s. 54(5) where the court’s power to determine against whom an excess is to be awarded is limited to cases where the award of damages exceeds the maximum liability of the Trust. As his Honour the trial judge suggests, some strange situations indeed could develop with judgments just under or just over the maximum limit, if costs were to be related to the limit itself.

Mr. Crooke also relies on the wording of s. 58(1)(b) as indicating the concept that costs are to be the owner’s responsibility where the award is over the maximum limit. This with respect, is not so. That sub-section is the common indemnity provision which entitles the insured owner to be indemnified for his own costs, so long as in doing so, when added to the award, the statutory maximum limit is not exceeded.

In other words in the conduct of legal proceedings against it under the Act, the Trust is in the same position as any other litigant. It must make its decisions in relation to the proceedings as best it can. It can pay into court, and in a case like the present one, it could have paid in the maximum of K100,000 and taken no further part in the proceedings, leaving the Company to fight on if it so wished. In those circumstances it is inconceivable that costs would be awarded against it. The Trust however, chose to fight the action. The owner certainly could not prevent it doing so, and in those circumstances, we repeat, the order of the trial judge for costs was quite proper and both these appeals must be dismissed.

As the Company’s appeal on costs was argued during the hearing of the main appeal there will be no separate order for costs with regard to it. The Trust’s appeal was argued separately and without opposition and we therefore make no order for costs in relation to it.

(Note: The special orders for costs in relation to southern counsel are not reproduced but appear on the back sheet of the court file.)

The appellant (plaintiff’s) appeal allowed. Verdict of the trial judge set aside and an award of K200,524 substituted for it, the award being against the respondent Trust as to the first K100,000 of the said amount of K200,524 and against the respondent Plantation Supply & Service Co. Pty. Ltd. as to the excess. Order for costs made by the trial judge as to the costs of trial affirmed. Appeal S.C.A. 40 of 1978 by the respondent (second appellant) Plantation Supply & Service Co. Pty. dismissed. Appeal S.C.A. 39 of 1978 by the Trust dismissed.

Solicitors for the first appellant: McCubbery Train Love & Thomas.

Solicitors for the second appellant: Young and Williams.

Solicitors for the third appellant: Young and Williams.

[cclxxii]Infra p. 000.

[cclxxiii]Infra p. 000.

[cclxxiv][1975] P.N.G.L.R. 262.

[cclxxv][1974] P.N.G.L.R. 265.

[cclxxvi][1975] P.N.G.L.R. 262, at p. 272.

[cclxxvii][1974] P.N.G.L.R. 265.

[cclxxviii][1961] HCA 5; (1961) 104 C.L.R. 57, at pp. 71-72.

[cclxxix][1974] P.N.G.L.R. 265, at p. 267.

[cclxxx][1968] HCA 9; (1968) 122 C.L.R. 649, at p. 656.

[cclxxxi][1974] P.N.G.L.R. 265, at pp. 268, 269.

[cclxxxii][1975] P.N.G.L.R. 262, at p. 266.

[cclxxxiii][1975] P.N.G.L.R. 262, at p. 272.

[cclxxxiv][1975] P.N.G.L.R. 262, at p. 277.

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

[cclxxxvi][1975] P.N.G.L.R. 262, at p. 279.

[cclxxxvii][1956] A.C. 185.

[cclxxxviii](1978) 52 A.L.J.R. 707.

[cclxxxix][1979] P.N.G.L.R. 108.

[ccxc](1955) 93 C.L.R. 435.

[ccxci][1963] 1 W.L.R. 748.

[ccxcii] [1963] 1 W.L.R. 748, at p. 753.

[ccxciii][1903] A.C. 426.

[ccxciv][1966] 1 W.L.R. 476.

[ccxcv][1963] 1 W.L.R. 748.

[ccxcvi] [1966] 1 W.L.R. 476, at p. 477.

[ccxcvii] [1966] 1 W.L.R. 476, at pp. 479-480.

[ccxcviii][1963] 1 W.L.R. 748.

[ccxcix][1969] 1 W.L.R. 1023.

[ccc][1973] 1 W.L.R. 540; [1973] 2 All E.R. 881.

[ccci] [1963] 1 W.L.R. 748, at p. 748.

[cccii] [1963] 1 W.L.R. 748, at pp. 751-752.

[ccciii] [1963] 1 W.L.R. 748, at p. 754.

[ccciv][1978] P.N.G.L.R. 161.

[cccv][1978] P.N.G.L.R. 391.

[cccvi](1977) 13 A.L.R. 57.

[cccvii][1913] ArgusLawRp 121; (1978) 19 A.L.R. 501, at p.508.

[cccviii][1974] P.N.G.L.R. 265.

[cccix][1975] P.N.G.L.R. 262.

[cccx][1974] P.N.G.L.R. 265, at p. 281.

[cccxi][1956] A.C. 185.

[cccxii](1978) 52 A.L.J.R. 707.

[cccxiii](1977) 51 A.L.J.R. 482.

[cccxiv][1956] A.C. 185.

[cccxv](1978) 52 A.L.J.R. 707.

[cccxvi](1978) 52 A.L.J.R. 707.

[cccxvii](1977) 139 C.L.R. 161; 51 A.L.J.R. 792.

[cccxviii](1971) 125 C.L.R. 296; 45 A.L.J.R. 682.

[cccxix][1979] HCA 9; (1979) 53 A.L.J.R. 293, at pp. 300-301.

[cccxx][1978] P.N.G.L.R. 161.

[cccxxi][1978] P.N.G.L.R. 391.

[cccxxii](1977) 13 A.L.R. 57.

[cccxxiii][1978] P.N.G.L.R. 391.

[cccxxiv][1963] 1 W.L.R. 748.

[cccxxv][1969] 1 W.L.R. 1023.

[cccxxvi][1971] A.C. 666.

[cccxxvii] [1977] 2 N.S.W.L.R. 389, at p. 398.

[cccxxviii] [1977] 2 N.S.W.L.R. 389, at p. 398.