Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251

• Jurisdiction: Papua New Guinea
• Judge: Raine DCJ, Pritchard J, Andrew J
• Judgment Date: 10 August 1979
• Court: Supreme Court
• Citation: [1979] PNGLR 251
• Year: 1979
• Judgement Number: SC157

Full Title: Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251

Supreme Court: Raine DCJ, Pritchard J, Andrew J

Judgment Delivered: 10 August 1979

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROBERT YOUNGER KERR

FIRST APPELLANT (PLAINTIFF)

V

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

RESPONDENT (DEFENDANT)

AND PLANTATION SUPPLY & SERVICE CO. PTY. LTD.

SECOND APPELLANT

V

ROBERT YOUNGER KERR

RESPONDENT

AND MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

THIRD APPELLANT

V

ROBERT YOUNGER KERR

RESPONDENT

Waigani

Raine DCJ Pritchard Andrew JJ

28-31 May 1979

10 August 1979

DAMAGES — Measure of damages — Personal injuries — Assessment of general damages — General principles — General standards prevailing in community — Condition of plaintiff at time of injury — Defendant to take plaintiff as he finds him.

DAMAGES — Measure of damages — Personal injuries — Loss of earning capacity — Tax position to be taken into account — English common law applied.

DAMAGES — Measure of damages — Personal injuries — Future medical expenses — Charges in Medibank system between trial and appeal — Assessment not to be altered on appeal.

DAMAGES — Personal injuries — Loss of life expectation — Quantum of — Conventionally accepted figure — Fall in value of money to be taken into account — Conventional sum increased to K1500.

DAMAGES — Measure of — Personal injuries — Future nursing housekeeping care — Possibility of marriage breakdown relevant consideration.

DAMAGES — Personal injuries — Particular awards of general damages — Paraplegic — Dislocated fracture at T12 — Dislocated shoulder — Usual continuing problems — Keen sportsman and athlete — Salesman in agricultural and marketing area — Married man aged twenty-six (twenty-eight at trial) — Employed as office manager at trial — Award of K181,900 general damages substituted for award of K115,000.

APPEAL — Admission of fresh evidence on — Change in circumstances between trial and hearing of appeal — Assumptions properly made at trial falsified — Evidence to be admitted only in exceptional cases — Appeal against award of damages for personal injuries — Change in Medibank system falsifying assumptions as to future medical expenses — Circumstances not justifying admission.

COSTS — Costs of action — Damages for personal injuries — Compulsory third party motor vehicle insurance — Action against statutory Trust — Statutory limit on damages to be awarded against Trust — Excess awarded against insured — Liability of Trust for costs — Liability of insured for costs — Where claim in excess of statutory limit insured to be treated as defendant — Motor Vehicles (Third Party Insurance) Act 1974, ss. 49 (2) (a) Infra p. 000.1, 54 (5) Infra p. 000.2.

The appellant plaintiff, an Australian and a salesman in the agricultural and marketing area, (with a diploma in Agriculture) aged twenty-six (twenty-eight at trial) claimed damages for personal injuries arising out of a motor vehicle accident. As a result of the injuries sustained including a dislocated fracture at T12, and a dislocated shoulder the appellant was rendered a paraplegic, confined to a wheelchair and with the continuing problems usual to that condition. Prior to injury the appellant was a keen sportsman and athlete, married with two children. At the time of the trial there were no signs of possible marriage breakdown and the appellant was doing office work connected with his previous experience with some prospects of advancement. The trial judge awarded general damages after making adjustments for overlapping at K115,000, including inter alia assessments of K35,000 for pain and suffering, loss of amenities etc.; K800 for loss of expectation of life, K39,000 for future economic loss, K12,000 forspecial equipment, K2,000 for future medical expenses and K20,000 for future nursing and housekeeping expenses. The first K100,000 of the total award was made against the respondent Motor Vehicles Insurance (P.N.G.) Trust (the Trust) and the excess against the respondent Plantation Supply & Service Co. Pty. Ltd. (the Company) pursuant to s. 49 (2) (a) of the Motor Vehicles (Third Party Insurance) Act 1974.

On appeal against the award of damages on the ground of inadequacy,

Held

(1) In assessing general damages for personal injuries under the heading, pain and suffering, loss of amenities etc., the assessment should be made having regard to the prevailing condition of the plaintiff at the time of injury, and the general standards prevailing in the community.

Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz, [1975] P.N.G.L.R. 262, followed.

Administration of Papua New Guinea v. Carroll, [1974] P.N.G.L.R. 265, disapproved.

(2) The assessment of K35,000 for pain and suffering, loss of amenities etc. was so inordinately low as to require intervention, and should be increased to K60,000.

(3) In assessing damages for personal injuries under the heading of loss of earnings, actual and prospective, the income tax which the plaintiff would have had or would have to pay is to be taken into account.

Charles Pupu v. Pelis Tomilate, [1979] P.N.G.L.R. 108, approved and applied.

British Transport Commissioner v. Gourley, [1956] A.C. 185, followed.

Atlas Tiles Ltd. v. Briers (1978), 52 A.L.J.R. 707, not followed.

(4) The assessment of K39,000 for future economic loss was so inadequate as to require intervention, and should be increased to approximately K60,000.

(5) Although the general principle is that damages are assessed at trial once and for all, an appellate court has power in exceptional cases to admit fresh evidence of a change in circumstances between trial and appeal, if the particular exigencies of justice clearly outweigh the general undesirability of doing so.

Curwen v. James, [1963] 1 W.L.R. 748;

Murphy v. Stone-Wallwork (Charlton) Ltd., [1969] 1 W.L.R. 1023;

Mulholland v. Mitchell, [1971] A.C. 666;

Jenkins v. Richard Thomas & Baldwins Ltd., [1966] 1 W.L.R. 476; and McCann v. Sheppard, [1973] 1 W.L.R. 540, referred to.

(6) Accordingly, changes in the Medibank system in Australia introduced between the date of trial and hearing of the appeal should not be taken into account in assessing damages under the heading of future medical expenses.

(7) In assessing damages under the heading loss of expectation of life, the fall in the value of money should be taken into account and the conventional assessment of K800 increased to K1500.

Rokan Bayava v. Minisang Wankiar, [1978] P.N.G.L.R. 391, approved and applied.

Garaiju Moruwu v. Sabeme Uve, [1978] P.N.G.L.R. 161, disapproved.

(8) In assessing damages under the heading of future nursing and housekeeping expenses, the real possibility of a breakdown in the appellant's marriage should have been taken into account.

(9) General damages should be reassessed after making adjustments for overlapping at K181,900 including inter alia assessments of K60,000 for pain and suffering, loss of amenities, K1,500 for loss of expectation of life, approximately K60,000 for future economic loss, K13,000 for special equipment, and approximately K30,000 for future nursing and housekeeping expenses.

On appeals against an order for costs made against both the Trust and the insured on the basis that both were liable for the whole (see Kerr v. Motor Vehicles Insurance (P.N.G.) Trust, [1978] P.N.G.L.R. 438),

Held

(10) A person insured under the provisions of the Motor Vehicles (Third Party Insurance) Act 1974, involved in a claim for damages for bodily injury where an award in excess of K100,000 can be made is a defendant in the recognised sense of the word, with all the rights of a defendant under the Rules of the National Court, subject to the limitations imposed on him by the Motor Vehicles (Third Party) Insurance Act 1974, vis-a-vis the Trust.

(11) Section 42 of the Motor Vehicles (Third Party) Insurance Act 1974, which prescribes limits in respect of "all liability ... in respect of the ... bodily injury ..." must be read in the light of s. 54 (5) where the court's power to determine against whom an excess is to be awarded is limited to cases where the award of damages exceeds the maximum liability (K100,000) of the Trust.

(12) Accordingly, the order for costs was properly made and the appeals in relation thereto should be dismissed.

Kerr v. Motor Vehicles Insurance (P.N.G.) Trust, [1978] P.N.G.L.R. 438, upheld.

Appeals

These were three appeals heard together: the first an appeal against an award of damages for personal injuries on the ground of inadequacy (by the original plaintiff); the second and third for costs made against both the Motor Vehicles Insurance (P.N.G.) Trust as the statutory insurer under the Motor Vehicles (Third Party) Insurance Act 1974, and Plantation Supply & Service Co. Pty. Ltd. as the insured under that Act.

Counsel

F. McAlary Q.C., R. H. B. Wood and M. May, for the first appellant (plaintiff).

J. Griffin, for the second appellant (the Company).

G. W. Crooke, for the third appellant (the...