Brian John Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219

• Jurisdiction: Papua New Guinea
• Judge: Greville–Smith J, Andrew J, Miles J
• Judgment Date: 29 August 1980
• Court: Supreme Court
• Citation: [1980] PNGLR 219
• Year: 1980
• Judgement Number: SC178

Full Title: Brian John Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219

Supreme Court: Greville–Smith J, Andrew J, Miles J

Judgment Delivered: 29 August 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BRIAN JOHN LEWIS

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Greville Smith Andrew Miles JJ

1-2 May 1980

29 August 1980

NEGLIGENCE — Apportionment of responsibility — Practice on appeal — Variation on appeal — Variation only in rare and exceptional cases.

APPEAL — Practice — Negligence — Apportionment of responsibility — Variation on appeal — Variation only in rare and exceptional cases.

DAMAGES PERSONAL INJURIES — Particular awards of general damages — Head injuries — Brain damage — Cervical injury likely to deteriorate — Confusion — Progressive memory disturbance — Lack of concern for own condition — Fits of uncontrollable laughter — Right sided tremor — Almost complete loss of vision on right side — Real risk of institutionalization at early age — Male airport ramp officer aged 24 (28 at trial) — Assessment of K125,000 general damages including K100,000 for reduced earning capacity substituted for award of K65,000 including K40,000 for reduced earning capacity.

The appellant (plaintiff) a ramp officer involved in supervising the loading and fuelling etc. of aircraft, and a qualified wool classer aged twenty-four (twenty-eight at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered by the appellant was described as head injuries with "moderately severe primary brain injury", as a result of which the appellant suffered permanent brain damage symptomised by confusion, progressive memory disturbance (particularly for short term), psychoneurosis, lack of concern for his own condition, and uncontrollable laughter in company. He also suffered an injury to the cervical spine which was likely to deteriorate with time, a tremor on the right side affecting his ability to carry things, and an almost complete loss of vision on the right side. At the time of trial the appellant was working in his pre-accident job which the trial judge found he was likely to lose within a year, and thereafter to return to Australia whee he faced the "real risk of institutionalization at a relatively early age".

The trial judge assessed damages for pain and suffering etc. at K25,000, and damages for loss of earning capacity at K40,000; he also apportioned liability for the accident at seventy per cent to the appellant (plaintiff) and thirty per cent to the respondent (defendant) and reduced the award accordingly.

On appeal against the findings of negligence, the apportionment and inadequacy of damages:

Held

(1) Where a trial judge has apportioned responsibility in a case alleging negligence by both parties, that apportionment of responsibility should only be varied on appeal in rare and exceptional cases.

Lee v. Van Essen (1972) 46 A.L.J.R. 250 at p. 251;

British Fame (Owners) v. MacGregor (Owners) [1943] A.C. 197 at pp. 200-201;

Englehardt v. Garrett and Finn [1974] 9 S.A.S.R. 148; and

Pennington v. Morris (1956) 96 C.L.R. 10 at p. 16 applied.

(2) In deciding whether such an apportionment of responsibility should be varied the appellate court must ask itself whether the trial judge could reasonably have arrived at the conclusion it did.

Katsoris v. Reynen [1962] V.R. 551;

Webb v. McArtee and Rhondda Collieries Pty. Ltd. [1965] Qd.R. 487 referred to.

(3) In the circumstances the findings of negligence and the apportionment of responsibility ought not to be disturbed.

(4) An assessment of damages by a trial judge 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.

Kerr v. Motor Vehicles (Insurance) P.N.G. Trust [1979] P.N.G.L.R. 251 followed.

(5) The assessment of K25,000 for damages for pain and suffering etc. was not so low or so inordinately low as to be disturbed.

(6) The assessment of K40,000 for loss of earning capacity was inordinately low, and should be increased to K100,000.

Appeal

This was an appeal against findings of negligence and contributory negligence and an assessment of damages made on the trial of an action seeking damages for personal injuries arising out of a motor vehicle accident.

Counsel

R. V. Gyles Q.C. and J. E. Rowe, for the appellant (plaintiff).

R. C. Gunson, for the respondent (defendant).

Cur. adv. vult.

29 August 1980

GREVILLE SMITH J: I have had the advantage of reading the reasons for judgment prepared by Andrew J. and Miles J. I agree with those reasons and the conclusion and have nothing to add.

ANDREW J: This is an appeal by Brian John Lewis against a judgment of the National Court wherein he was awarded damages for personal injuries suffered as a result of a collision between a motor cycle ridden by himself and a motor car owned by the respondent (defendant) and driven by its servant and agent.

The learned trial judge found that the plaintiff was contributorily negligent to the extent of seventy per cent. The defendant had admitted liability and relied solely on its defence of contributory negligence.

In his appeal to this Court, Lewis challenges the finding of negligence on his part contributing to the result, and, in default of his success on that issue, he seeks to vary the apportionment of his responsibility. The assessment of damages is also challenged.

As the appeal was argued before us, there seems to be little dispute with respect to the basic circumstances under which the accident occurred. No doubt this was partly due to the fact that the plaintiff had no memory of the accident, a disadvantage under which he laboured at the trial and which made the trial judge's task that much more difficult.

The facts were that Lewis was proceeding along Hubert Murray Highway away from Port Moresby when he came into collision with the defendant's truck which was being driven in-bound to Port Moresby. The collision took place near the intersection of Kookaburra Street and Hubert Murray Highway.

The learned trial judge's findings were as follows:

"It is clear, in my opinion, that both Maip and the plaintiff drove their respective vehicles negligently at this time and place. Maip's negligence is of course admitted. I am satisfied that Maip believed, with reason, that the plaintiff would be turning left in Kookaburra Street, when he saw the motor cycle turning indicator flashing; and that, in that belief, Maip then moved slowly, or continued to move slowly, across the centre line of the highway into the outbound lane, with the intention of following the plaintiff into Kookaburra Street. Maip had angled across the centre line several feet at the time of collision. Meanwhile the plaintiff, having no intention of turning left into Kookaburra Street and being unaware that his turning indicator was activated, continued outbound along the highway towards the van now edging into his path. What his expectations were, what kind of a lookout he was keeping, cannot be determined. It may be that he expected the van to wait for him to pass, or to complete its turn i front of him promptly; but that is a matter of speculation. In any event, I am satisfied that the plaintiff was moving at considerable speed, and that when he finally braked he was unable to stop before colliding with the van, after a twenty-six feet skid. In these circumstances I consider that the plaintiff failed to take the care a prudent man in his position would have taken for his own safety and by his failure to do so contributed in a material way to his injury.

The effect of a finding of contributory negligence on the part of the plaintiff is to reduce the damages he would otherwise recover, to such extent as is just and equitable, having regard to the plaintiff's share in the responsibility for the damage he has suffered. The question is to be looked at on common sense principles both in regards causation and blameworthiness. On that basis it appears to me that the plaintiff's behaviour was more culpable than was Maip's. It is unnecessary for me again to rehearse their respective actions. I think the plaintiff must bear 70% of the responsibility and the damage he would otherwise recover should be reduced by that percentage."

These findings were attacked on several grounds. It was said, interalia, that the fundamental rule of the road is that one does not make a right-hand turn into the path of an oncoming vehicle; that there was no finding that the plaintiff was not keeping an appropriate lookout and whilst there might have been a finding of "considerable" speed on the part of the motor cycle there was no finding of dangerous or excessive speed. It was also said that when the plaintiff activated his traffic indicator he was indicating an intention either to pull over to the left side...