Meaney v Hastings Deering (Pacific) Ltd and Bishop Shipping Services Pty Ltd [1979] PNGLR 170 (4 June 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 170 - John Meaney v Hastings Deering (Pacific Ltd and Bishop Shipping Services Pty Ltd 

[1979] PNGLR 170

N191

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN MEANEY

V

HASTINGS DEERING (PACIFIC) LTD. AND BISHOP SHIPPING SERVICES PTY. LTD.

Waigani

Wilson J

4 May 1979

4 June 1979

INTEREST - Recoverability apart from agreement - Award of interest as damages - Damages for personal injuries - Statutory discretion to award interest - Whether termination date is date of trial or date of judgment - Law Reform (Miscellaneous Provisions) Act 1962, s. 42.

DAMAGES - Measure of damages - Interest - Personal injuries - Statutory discretion to award interest - Whether termination date is date of trial or date of judgment - Law Reform (Miscellaneous Provisions) Act 1962, s. 42.

Section 42(1) of the Law Reform (Miscellaneous Provisions) Act 1962 provides:

“... in proceedings tried in a court for recovery of a debt or damages, ... the court ... may, if it ... thinks fit, order that there be included in the sum for which judgment is given ... interest at such rate as it ... thinks proper on the whole or part of the debt, damages ... for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.”

On an application for interest to be included in an award of damages for personal injuries,

Held

Interest awarded pursuant to the statutory discretion contained in s. 42 of the Law Reform (Miscellaneous Provisions) Act 1962, is to be calculated up to the date of the judgment or award; interest on the award normally running from that date in any event.

Thompson v. Faraonio [1917] ArgusLawRp 74; (1979), 24 A.L.R. 1, applied.

Trial

This was an action in which the plaintiff, having been awarded damages for personal injuries sought to recover interest on that award, counsel for the defendants arguing that any award of interest should be terminated at the date of trial.

Counsel

M. M. Challinger, for the plaintiff.

A. L. Cassells, for the first defendant.

R. Patterson, for the second defendant.

Cur. adv. vult.

4 June 1979

WILSON J: The plaintiff in this action succeeded in part in his action against the first defendant but failed altogether against the second defendant. Judgment for the plaintiff against the first defendant was for fifty per cent of K61,131 being K30,565.50, such reduction having been made on account of a finding of contributory negligence against the plaintiff. On 1st May, 1979, I published my reasons and entered judgment accordingly, but, at the request of counsel, I adjourned consideration of the question of costs and any other matters arising from the judgment.

On 4th May, 1979, counsel for the parties appeared before me and I made consent orders as to costs, I certified this case fit for counsel, and I heard argument in relation to the plaintiff’s claim for interest on portions of the judgment he had obtained. Such a claim for interest was made pursuant to s. 42 of the Law Reform (Miscellaneous Provisions) Act 1962. Section 42 provides (the emphasis is mine):

“42(1) Subject to the next succeeding subsection, in proceedings tried in a court for the recovery of a debt or damages, and in an arbitration for the assessment of compensation for the acquisition or resumption of land, the court or the arbitrator, as the case may be, may, if it or he thinks fit, order that there be included in the sum for which judgment is given, or at which compensation is assessed, interest at such rate as it or he thinks proper on the whole or part of the debt, damages or compensation for the whole or part of the period between the date on which the cause of action arose and the date of the judgment or assessment.

(2)      Nothing in the last preceding subsection contained:

(a)      authorises the giving of interest upon interest;

(b)      applies in relation to a debt upon which interest is payable as of right, whether under an agreement or otherwise; or

(c)      affects the damages recoverable for the dishonour of a bill of exchange.”

The plaintiff following the principles enunciated in the Court of Appeal decision of Jefford v. Gee[cxci]¹ sought to recover interest calculated by reference to certain portions of the damages assessment. The period in respect of which interest was claimed was from the date of the writ until the date of judgment.

There was no dispute that the plaintiff is entitled to interest until the date of trial. The only question for my decision is whether the plaintiff is also entitled to interest from the date of trial until the date of judgment, a period in this case of a further fifteen months. Due to the pressure of work upon the National Court, it had become necessary for that regrettably lengthy period of time to elapse before the judgment, which had been reserved in March 1978, could be delivered in June 1979.

It was argued on behalf of the first defendant that any entitlement to interest accrued until the date of the trial only.

In view of the able argument presented on both sides by Mr. Challinger, for the plaintiff, and Mrs. Cassells, for the first defendant, I found it necessary to reserve my decision for the purpose of enabling me to consider the effect of the recent House of Lords decision in Cookson v. Knowles[cxcii]² which had considered the earlier Court of Appeal decision in Jefford v. Gee[cxciii]³, and the recent High Court of Australia decisions in Ruby v. Marsh[cxciv]⁴, Fire and All Risks Insurance Co. Ltd. v. Callinan[cxcv]⁵ and Atlas Tiles Limited v. Briers[cxcvi]⁶ and for the additional purpose of enabling me to obtain a copy of the even more recent judgment of the Privy Council in Thompson v. Faraonio[cxcvii]⁷. At the time of the argument before me, I was aware of this judgment but I could not recall its name and a copy of the judgment was not yet available in Papua New Guinea. A copy of that judgment has now come into my possession.

Although Mrs. Cassells sought to rely on some passages in the judgment of their Lordships in Cookson v. Knowles[cxcviii]⁸ from which it was argued that their Lordships were expressing the view that interest could only be awarded up to the date of trial and not beyond that date, it is clear that in that case there was little or no delay between the date of trial and the date of judgment. After carefully reading that decision, I am satisfied that their Lordships did not purport to decide what the termination date for such an award of interest should be. Rather they were concerned with the question of which parts of an award of damages interest may be awarded on.

The question for decision that arises in this case was expressly considered by the Privy Council in Thompson v. Faraonio[cxcix]⁹. The Judicial Committee said:

“... the proper terminus ad quem for calculating interest is the date of the judgment of the court of first instance, because from that date interest on the award will normally run in any event.”

Their Lordships had previously made reference to the reason for awarding interest, which is a justification for the conclusion just quoted[cc]¹⁰:

“The reason for awarding interest is to compensate the plaintiff for having been kept out of money which theoretically was due to him at the date of his accident.”

Furthermore, it must be observed that s. 42 itself expressly empowers a court in Papua New Guinea to award interest “... for the whole or part of the period between the date on which the cause of action arose and the date of the judgment ...” (The emphasis is mine.) It would be a surprising thing indeed if common law decisions of courts of such persuasive authority in Papua New Guinea as those already mentioned in this judgment were to be understood as restricting the plain meaning of those words in the manner contended for by Mrs. Cassells.

For these reasons I will award the plaintiff interest from the date of the writ until the date of judgment.

It was ordered that the first defendant pay to the plaintiff interest agreed at K3,346.19 being interest to the date of judgment at the agreed rate of three per cent per annum on certain portion of the judgment and at the agreed rate of six per cent per annum on certain other portion of the judgment.

Solicitors for the plaintiff: Williams & Williams.

Solicitors for the first defendant: L. Keith Young & Associates.

Solicitors for the second defendant: McCubbery, Train, Love & Thomas.

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[cxci][1970] 2 Q.B. 130; [1970] 1 All E.R. 1202.

[cxcii][1978] 2 W.L.R. 978; 2 All E.R. 604.

[cxciii][1970] 2 Q.B. 130; [1970] 1 All E.R. 1202.

[cxciv](1975) 132 C.L.R. 642.

[cxcv](1978) 140 C.L.R. 427.

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

[cxcvii](1979) 54 A.L.J.R. 231.

[cxcviii][1978] 2 W.L.R. 978; [1978] 2 All E.R. 604.

[cxcix](1979) 54 A.L.J.R. 231, at p. 231.

[cc](1979) 54 A.L.J.R. 231, at p. 231.