Brendon John Aspinall by his next friend David Lee James Eastwood v The Independent State of Papua New Guinea [The Government of Papua New Guinea] and Terence [Terrence] John Aspinall (No 2) [1980] PNGLR 50

• Jurisdiction: Papua New Guinea
• Judge: Wilson J
• Judgment Date: 18 April 1980
• Court: National Court
• Citation: [1980] PNGLR 50
• Year: 1980
• Judgement Number: N215

Full Title: Brendon John Aspinall by his next friend David Lee James Eastwood v The Independent State of Papua New Guinea [The Government of Papua New Guinea] and Terence [Terrence] John Aspinall (No 2) [1980] PNGLR 50

National Court: Wilson J

Judgment Delivered: 18 April 1980

1 Damages—personal injuries—interest—trial judge's discretion to award interest

INTEREST—Award of interest as damages—Damages for personal injuries—Statutory discretion—Mode of exercise of discretion generally—Basis of awards of interest—Distinction between past and future components of award—Interest on past pain and suffering etc. at 4%—Interest on past economic loss at 8%—Interest on special damages at half current rate due to inflation—Law Reform (Miscellaneous Provisions) Act 1962, s42(1).

S42(1) of the Law Reform (Miscellaneous Provisions) Act 1962, provides that "in proceedings tried in a court for the recovery of 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 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."

In an action for damages for personal injuries arising out of a motor vehicle accident, in which the plaintiff was awarded general damages covering pain and suffering etc., loss of future earning capacity and special damages: (see Aspinall v The Independent State of Papua New Guinea [1979] PNGLR 642), the plaintiff applied for interest to be included in the award:

Held:

(1) S42(1) of the Law Reform (Miscellaneous Provisions) Act 1962, confers upon the court a discretion to award interest which discretion should be exercised judicially.

Smith v Middleton [1972] SC30 at 37 referred to.

(2) Because the award of damages in cases of personal injury does not lend itself to assessment with any degree of arithmetic accuracy, the exercise of jurisdiction to award interest must be exercised on the basis of a broad practical approach.

British Transport Commission v Gourley [1956] AC 185;

Bennett v Jones and Anor. [1977] 2 NSWLR 355; and

Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427 referred to.

(3) When exercising the discretion under s42(1) of the Law Reform (Miscellaneous Provisions) Act 1962, regard must be had to the distinction between past or pre–judgment loss and future loss or loss suffered from the date of judgment onwards.

Cookson v Knowles [1977] 3 WLR 279;

Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427;

Thompson v Faraonio (1979) 54 ALJR 231 at 233; [1979] 1 WLR 1157 (PC); and

Ruby v Marsh (1975) 132 CLR 642 at 667–6 referred to.

(4) Interest should be awarded upon the basis that the plaintiff needs to be compensated for having been kept out of money which theoretically was due to him at the date of the accident.

Thompson v Faraonio (1979) 54 ALJR 231 at 233, and

Beaney v Hastings Deering (Pacific) Ltd [1979] PNGLR 170 referred to.

(5) Under s42(1) of the Law Reform (Miscellaneous Provisions) Act 1962,

(a) there is a discretion to award interest upon the component parts of the total award of damages which constitute past losses, and for the period during which the plaintiff has been kept out of pocket;

(b) there is no discretion to award interest upon those components of the award which relate to future elements.

Jefford v Gee [1970] QB 130;

Cookson v Knowles [1977] 3 WLR 279;

Bennett v Jones [1977] 2 NSWLR 355; and

Thompson v Faraonio (1977) 54 ALJR 231; [1979] 1 WLR 1157 (PC) referred to.

(6) The rate at which interest should be calculated on the pre–judgment loss for pain and suffering, loss of amenities etc. is 4%.

Bennett v Jones [1977] 2 NSWLR 355 referred to.

(7) Semble: The rate at which interest should be calculated on the pre–judgment loss for loss of earnings is 8%.

Rokan Bayava v Minisang Wankiar [1978] PNGLR 391, and

Bennett v Jones [1977] 2 NSWLR 355 referred to.

(8) The rate at which interest should be calculated on the sum awarded as special damages, should be 4% (that being half the 8% rate due to inflation), and calculated from the date of issue of the writ to the date of judgment.

Action.

This was the trial of an action for damages for personal injuries arising out of a motor vehicle accident in which Wilson J awarded damages (see Aspinall v The Independent State of Papua New Guinea [1979] PNGLR 642) and in which the plaintiff then sought an award of interest under s42 of the Law Reform (Miscellaneous Provisions) Act 1962.

___________________________

Wilson J: The plaintiff in this personal injury action arising out of a road accident, is entitled to damages, as per my reasons for decision published on 18 December 1979 Aspinall v The Independent State of Papua New Guinea [1979] PNGLR 642 as follows:

Special Damages $3,447.03

$3,447.03

General Damages

Pain and suffering, disability and

11,250.00

loss of amenities of life (K9,000.00)

Loss or diminution of earning capacity 64,000.00

Extra tuition fees and air–fares 1,500.00

76,750.00

76,750.00

$80,197.03

As it was necessary to hear counsel as to the matter of interest on damages and as to the rate of interest to be offered, I adjourned this case for further argument, which I subsequently heard on 8th and 14th February, 1980.

Guidelines have recently been laid down in England and Australia for the assistance of judges on whom there falls the task of assessing damages in personal injury actions and awarding interest on damages. Those guidelines are to be found in...