Anton Johan Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

• Jurisdiction: Papua New Guinea
• Judge: Pratt J, Amet J, Woods J
• Judgment Date: 24 June 1985
• Citation: [1985] PNGLR 160
• Court: Supreme Court
• Year: 1985
• Judgement Number: SC294

Full Title: Anton Johan Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Supreme Court: Pratt J, Amet J, Woods J

Judgment Delivered: 24 June 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ANTON JOHAN PINZGER

V

BOUGAINVILLE COPPER LTD

Waigani

Pratt Amet Woods JJ

1-2 November 1984

24 June 1985

DAMAGES — Measure of — Personal injuries — Loss of earning capacity — Future loss — Notional tax — Inflation — To be taken into account — To be accounted for in discount rate — Proper discount rate 3 per cent.

DAMAGES — Measure of — Personal injuries — Interest on award — Purpose of interest award compensatory — Appropriate rates — Date from which to be calculated — Principles to be applied — Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1.

INTEREST — Award of interest as damages — Damages for personal injuries — Statutory discretion — Principles upon which to be exercised — Purpose of interest award — Appropriate rates — Date from which to be calculated — Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1.

DAMAGES — Measure of — Personal injuries — Loss of earning capacity — Basis of calculation — To be calculated on net (after tax) figures.

COSTS — Departing from general rule — Appeal — Each party successful in part — No order for costs appropriate.

Held

(1) In assessing damages in an action for personal injuries, account must be taken of notional tax on income received from investment of damages representing future loss, unless the amount involved is so small as to make the notional tax negligible.

Todorovic v Waller (1981) 150 CLR 402, applied.

Hassard v Bougainville Copper Ltd [1981] PNGLR 182 at 189, approved.

(2) The manner in which such notional tax should be accounted for is a downward adjustment of the figure agreed upon as the proper discount rate.

(3) The proper discount rate for calculating the present value of future economic loss in actions for damages for personal injuries, taking into account both notional tax and inflation, should be 3 per cent.

Todorovic v Waller (1981) 150 CLR 402, adopted and applied.

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, varied.

(4) The purpose for which interest on damages is awarded, in actions for damages for personal injuries, is compensatory.

British Transport Commission v Gourley [1956] AC 185 at 208, adopted and applied.

Batchelor v Burke (1981) 148 CLR 448 at 455, considered.

(5) Until otherwise determined the appropriate rate of interest on past economic loss, in actions for damages for personal injuries, is 8 per cent.

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, affirmed.

(6) In actions for damages for personal injuries, the discretionary power deriving from the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52), s 1, 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", is, unless special circumstances indicate otherwise, to be exercised according to the following principles:

(a) Interest on special damages (including loss of wages) should be awarded from the date of the accident to the date of the trial at half the appropriate rate.

(b) Interest on damages for pain and suffering and loss of amenities should be awarded at the appropriate rate from the date of service of the writ to the date of trial; and

(c) no interest should be allowed on damages for loss of future earnings.

Jefford v Gee [1970] 2 QB 130 at 130; Dexter v Courtaulds Ltd [1984] 1 WLR 372 at 376-377, adopted and applied.

(7) (Obiter) There appear to be sound arguments in favour of dividing up damages for pain and suffering and loss of amenities into components for past and future, and confining interest awards to the component for past pain and suffering and loss of amenities.

Aspinall v Government of Papua New Guinea (No 2) [1980] PNGLR 50; Cybula v Nings Agencies Pty Ltd [1981] PNGLR 120, approved.

(8) In actions for damages for personal injuries, damages for loss of earnings actual and prospective, should be calculated on net (after tax) figures and not gross figures.

British Transport Commission v Gourley [1956] AC 185 at 197, 200; Cullen v Trappell (1980) 146 CLR 1 at 23; Todorovic v Waller (1981) 150 CLR 402, adopted and applied.

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, affirmed.

(9) Where a plaintiff or appellant succeeds in part and a defendant or respondent succeeds in part the court may properly take the view that no order for costs should be made.

Child v Stenning (1879) 11 Ch D 82; Williams v Stanley Jones & Co Ltd [1926] 2 KB 37, followed.

Cases Cited

Aspinall v Government of Papua New Guinea (No 2) [1980] PNGLR 50.

Atlas Tiles Ltd v Briers (1978) 144 CLR 202.

Batchelor v Burke (1981) 148 CLR 448.

Bennett v Jones [1977] 2 NSWLR 355.

British Transport Commission v Gourley (1956] AC 185.

Child v Stenning (l879) 11 Ch D 82.

Cullen v Trappell (1980) 146 CLR 1.

Cybula v Nings Agencies Pty Ltd [1981] PNGLR 120.

Dexter v Courtaulds Ltd [1984] 1 WLR 372; 1 All ER 70.

Hassard v Bougainville Copper Ltd [1981] PNGLR 182.

Jefford v Gee [1970] 2 QB 130.

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

Lim Poh Choo v Camden Health Authority [1980] AC 174.

London Chatham & Dover Railway Co v South Eastern Railway Co [1893] AC 429.

Lubbering v Bougainville Copper Ltd [1977] PNGLR 183.

McDaid v Clyde Navigation Trustees [1946] SC 462.

Mallett v McMonagle [1970] AC 166.

O'Hello v Kayel Shipping Co Pty Ltd [1980] PNGLR 361.

Paul v Rendell (1981) 55 ALJR 371.

Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625.

Pickett v British Rail Engineering Ltd (1980) AC 136.

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436.

Ruby v Marsh (1975) 132 CLR 642.

Tate & Lyle Food Distribution Ltd v Greater London Council [1982] 1 WLR 149; [1981] 3 All ER 716.

Taylor v O'Connor [1971] AC 115.

Thompson v Faraonio (1974) 24 ALR 1.

Todorovic v Waller (1981) 150 CLR 402.

Williams v Stanley Jones & Co Ltd [1926] 2 KB 37.

Young v Percival [1975] 1 WLR 17; [1974] 3 All ER 677.

Appeal

This was an appeal from an award of damages in an action for damages for personal injuries: see Pinzger v Bougainville Copper Ltd [1983] PNGLR 436.

Counsel

I Molloy, for the appellant.

I V Gzell QC, and R Thompson, for the respondent.

Cur adv vult

24 June 1985

PRATT AMET WOODS JJ: On 17 May 1979, the appellant was employed by the respondent company as a senior tunnel foreman in charge of a shift working at the tunnel face when a worker threw a lever which collapsed the raised platform on which the appellant was standing. At the time he was holding a drill which weighed some fifty to sixty kilograms and the subsequent fall of about three feet whilst holding this weight caused severe jarring to his back. The action brought by the appellant against the defendant company came before the National Court in November 1982. Liability was admitted and the task of the learned trial judge was one of assessment of damages only: see Pinzger v Bougainville Copper Ltd [1983] PNGLR 436. His Honour found that the plaintiff/appellant was a "truthful witness", that he was not "exaggerating his pain and suffering, his liabilities or his unsuccessful job searching". Further, his Honour found that he was not capable of heavy work but was fit for light work and that he was physically capale of doing the jobs which he had attempted to obtain in Australia, namely, gatekeeper, weighbridge man, petrol attendant, salesman, kitchenhand, and night security man. His Honour did not accept the contention that he was capable of light work only from time to time or on a part-time basis. That submission has not been renewed in this Court. Further, his Honour found that he had been rejected for many jobs although the main cause for this was "the depressed economy rather than his back injury".

It was quite possible, said the learned trial judge, that the plaintiff would invest the damages awarded in a small business and thus become self-employed rather than seek a light job. Examples given were a caravan park or a general store and certainly, his Honour felt, he was fit enough to run such businesses. Concerning the returns from such a business his Honour proceeded on the basis that "a self-employed man would not earn less than a gatekeeper or a weighbridge man", so that on the balance of probabilities he considered that the plaintiff would get an unskilled job of the nature indicated or invest in a small business. The trial judge does accept the fact that if the plaintiff had returned to Australia in August 1983 as a fit man, he would have obtained a similar type of supervisory job as to that in which he had been employed at Bougainville. The final upshot of the learned trial judge's findings was that the appellant's future economic loss would be "the difference between what he could have earned asa mining supervisor in...