Dillingham Corporation of New Guinea Pty Ltd v Constantino Alfredo Diaz

• Jurisdiction: Papua New Guinea
• Judge: Raine J:
• Judgment Date: 29 September 1975
• Citation: [1975] PNGLR 262
• Court: Supreme Court
• Year: 1975
• Judgement Number: SC85

Supreme Court: Frost CJ, Prentice DCJ, Raine J

Judgment Delivered: 29 September 1975

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DILLINGHAM CORPORATION OF NEW GUINEA PTY LTD

V

CONSTANTINO ALFREDO DIAZ

Port Moresby

Frost CJ Prentice DCJ Raine J

28-30 April 1975

29 September 1975

APPEAL — Supreme Court (Full Court) Act 1968 — No grant of leave — Appeal limited to questions of law and mixed fact and law — Supreme Court (Full Court) Act 1968, ss. 10, 20

DAMAGES — Assessment of general damages — Expatriates injured in Papua New Guinea — Relevant considerations — No deduction for particular economic conditions of Papua New Guinea — General principles discussed.

DAMAGES — Assessment — Pre-trial loss of earnings — Relevant considerations — Discount for contingencies — Whether discount because plaintiff not frugal.

DAMAGES — Personal injuries — Particular awards — Paraplegic — First- class miner aged 32 years — Award of $109,000 general damages including $32,000 for future expenses — Not set aside as excessive.

On an appeal against an award of damages for personal injuries on the ground that the award was excessive,

Held:

(1) (Raine J, not deciding) In the absence of a grant of leave under s. 10 or s. 20 of the Supreme Court (Full Court) Act 1968, the appeal should be limited to questions of law or questions of mixed law and fact.

(2) (Frost CJ dissenting) 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. The Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265 not followed.

(3) In assessing damages for pre-trial loss of earnings no discount should be made because of the use to which a plaintiff might have put his wages or earnings, or because he was not frugal. Fletcher v. Autocar and Transporters Ltd., [1968] 2 Q.B. 322 distinguished.

(4) Considered as a whole the award of $149,926 (including $75,000 described as general damages, $32,000 for future expenses viz. medical, domestic, car and house alterations and $30,000 for pre-trial loss of earnings), where the respondent (plaintiff) was rendered a paraplegic was not excessive in the circumstances.

Discussion of the problems of compartmentalized estimates of damages and overlapping.

Appeal.

This was an appeal against an award of $149,926 damages to the respondent (plaintiff) in respect of a motor vehicle accident on Bougainville in 1968, as a result of which the respondent was rendered a paraplegic. The appeal was brought on the sole ground that the award of damages was grossly excessive.

A. B. Shand QC with him R. A. Conti for the appellant (defendant) submitted that in the absence of a grant of leave, the appeal was limited to questions of law and of mixed fact and law; that the principle enunciated in The Administration of Papua New Guinea v. Carroll, [1974] P.N.G.L.R. 265 should be extended to cover all forms of damage and in particular to cover economic loss, that the principle enunciated in Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322 applied insofar as it involved a conclusion that damages in respect of pre-trial wage loss should not be allowed as a re-imbursement of wage loss but should be limited to compensation for loss of amenities; and that the assessment was examinable on a number of other grounds including error in calculation and overlapping in the trial judge's item by item aggregation of damages.

F. McAlary QC with him R. B. Murphy for the respondent (plaintiff) submitted that in the absence of a grant of leave the appeal being limited to questions of law and of mixed law and fact, the only issues open were the application of the principles in The Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265, and Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322.

Editorial Note:

The Independent State of Papua New Guinea came into effect on the 16th September, 1975, and pursuant to The Constitution of the Independent State of Papua New Guinea (Div. 5 s. 154 et seq.) there was established a National Judicial System consisting of the Supreme Court of Justice, the final court of appeal (the equivalent of the former Full Court of the Supreme Court of Papua New Guinea), the National Court of Justice (the equivalent of the former Supreme Court of Papua New Guinea) and such other courts as might be established under s. 172 of the Constitution. Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz was the first reported decision to be handed down by the new Supreme Court of Justice.

Cur. adv. vult.

29 September 1975

FROST CJ: On 13th October, 1968, the respondent, a single man then aged 32, suffered grave physical injuries when a motor vehicle being driven along Panguna Road, Bougainville, by the appellant's employee, left the road and rolled down a steep precipice. A fracture to the lower left spine left him a paraplegic.

In the Supreme Court before Lalor J on 23rd September, 1974, he was awarded damages in the sum of $149,926.00, and it is against this award that the appeal is brought, on the ground that the damages were excessive.

There is no dispute about the physical effects of the injury. The respondent remains without sensation below waist level and with no capacity to control his urine or bowels, or ability to move his legs or lower muscles. It is to be taken that he is deprived of sexual function. For movement he will be confined to a wheelchair for the rest of his life. He has a lower urinary tract infection which is common with paraplegics, and his condition is made worse by the spreading of the infection to the upper renal tract and kidneys which will lead to recurrent periods of hospitalization and surgery. After an initial period in the Royal North Shore Hospital in Sydney he had to return to hospital for treatment, once for burns and later for pressure ulceration, both of which flowed from his paraplegic condition. He has had occupational training, first at Mt. Wilga Rehabilitation Centre in New South Wales and later at the Dulwich Hill Hospital conducted by the Civilian Maimed and Limbless Association, where he now lives.

He is employed at a sheltered workshop working in the bookbinding department, for which he is paid $15.00 per week. The trial judge found that "the probability is that the plaintiff's future employment will be in the lower paid areas of manual work and that his earnings in this employment will be affected by loss of time through illness and a considerably shortened working life".

At the time of the accident, the respondent was a first-class miner employed by the appellant on the Bougainville Copper Project at Panguna. Of Spanish birth, he had migrated in January 1963 to Australia, where after some casual jobs in New South Wales he had commenced work as a second-class miner with the Snowy Mountains Authority at Cooma. In due course he became a first-class miner and later worked in that capacity in New Zealand before going to Bougainville. The trial judge found that, although there was evidence that he had taken several lengthy holidays of some months' duration, prior to the accident the respondent was committed to the mining construction industry. He also accepted the evidence to the effect that, at the time of the trial, it was difficult to obtain first-class miners and that but for his disability he could be employed at Bougainville at a gross cash wage of $11,000.00 per annum. In addition he would receive free board and lodging, five weeks' paid holiday each year and other fringe beefits.

The award of damages was made up as follows:

$General damages75,000.00Out-of-pocket expenses to date of trial12,926.00Loss of earnings from date of injury to date of trial30,000.00Future expenses, viz. Medical9,000.00 Domestic help13,000.00 Car expenses6,000.00 Alterations to a house4,000.00In arriving at the sum of $75,000.00 for general damages, the trial judge applied the reasoning of the majority in The Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265 in which the plaintiff was an Australian expatriate injured in Papua New Guinea who intended to return eventually to Australia.

The appeal was said to have been brought as of right, the matters involved being matters of law and matters of mixed law or fact. In the absence of any grant of leave by the Court, the appeal must be so limited, and does not extend to questions of fact. (See Supreme Court (Full Court) Act 1968, ss. 10 and 20).

The appellant's two main arguments were that the principle enunciated in Carroll's case [1974] P.N.G.L.R. 265 should be extended to cover all forms of damages and, in particular, to cover economic loss, and that the principle enunciated in...