The Administration of Papua New Guinea v Carroll [1974] PNGLR 265

• Jurisdiction: Papua New Guinea
• Judge: Frost SPJ:
• Judgment Date: 11 April 1974
• Citation: [1974] PNGLR 265
• Court: Supreme Court
• Year: 1974
• Judgement Number: FC56

Full Title: The Administration of Papua New Guinea v Carroll [1974] PNGLR 265

Full Court: Minogue CJ, Frost SPJ, Clarkson J

Judgment Delivered: 11 April 1974

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE ADMINISTRATION OF PAPUA NEW GUINEA

V

CARROLL

Port Moresby

Minogue CJ Frost SPJ Clarkson J

29-30 October 1973

11 April 1974

DAMAGES — Assessment of general damages — Pain and suffering — Economic loss — Expatriate Australian living in Papua New Guinea — Whether different level of material community standards in Papua New Guinea to be taken into account — General principles discussed.

The assessment of damages for pain and suffering in respect of an Australian expatriate resident in Papua New Guinea should be moderated by reason of the different level of material community standards in Papua New Guinea, and the figure awarded should accordingly be lower than the assessment which would be arrived at by an Australian court.

So held by Frost S.P.J. and Clarkson J., Minogue C.J. dissenting.

Principles relating to the assessment of damages for personal injuries considered. Circumstances in which award of $65,000 for general damages reduced to $50,000 considered.

Cases Referred To

Tzouvelis v. Victorian Railways Commissioners, [1968] V.R. 112; Skelton v. Collins (1965-1966), 115 C.L.R. 94; Arthur Robinson (Grafton) Pty. Limited v. Carter (1967-1968), 41 A.L.J.R. 327; Planet Fisheries Pty. Ltd. v. La Rose & Anor. (1968), 119 C.L.R. 118; O'Brien v. Dunsdon (1965-1966), 39 A.L.J.R. 78; Singh v. Toong Fong Omnibus Co. Ltd., [1964] 1 W.L.R. 1382; H. West & Son Ltd. v. Shephard, [1964] A.C. 326; Fletcher v. Autocar Transporters Ltd., [1968] 2 Q.B. 322; Wise v. Kaye [1962 1 Q.B. 638; Kohnke v. Karger, [1951] 2 K.B. 670; Warren v. King, [1964] 1 W.L.R. 1.

Appeal

The respondent (plaintiff) an expatriate Australian bank officer had been awarded the sum of $65,000 for damages for personal injuries suffered in a motor vehicle collision on 30th December, 1971. The appellant (defendant) appealed against the amount of the award.

Counsel

G. P. M. Dabb, for the appellant (defendant).

R. B. Wood, for the respondent (plaintiff).

Cur. adv. vult.

11 April 1974

MINOGUE CJ: The Administration appeals against a judgment given in favour of the respondent for $65,000 in his action for damages for negligence. Liability was admitted and the appeal is as to amount only.

The respondent a man aged 39 years and 4 months at the time of the trial of the action in June, 1973 received very severe injuries in a collision between a motor cycle ridden by him and a vehicle driven by a servant of the appellant on 30th December, 1971. The learned trial judge assessed his damages as follows:

For pain, suffering and loss of amenities$20,000For wages to date (including some general damages and out of pockets) 7,000For loss of earning capacity to 30th September, 1975 (this date being that which his Honour estimated as being that on which the respondent would terminate his employment in New Guinea) 2,150For time spent in seeking employment in Australia1,350For future loss of earning capacity on return to Australia32,300$62,800He then went on to award what he described as a "global" figure of $65,000. No cavil was made at or argument directed to the three smaller amounts in this award but the appellant's counsel submitted that neither of the two larger amounts could stand and that there was no legal justification for adding $2,000 to the sum of the individual amounts at which he had arrived.

As different considerations apply to each of these amounts attacked I shall deal with them separately.

The first and most difficult matter is the $20,000 component of the overall award. At the outset the appellant's concession is to be noted that if this were the award of a Court in Australia although it may be regarded as high and indeed very high, it would probably be sustainable in an appellate court. The gravamen of his argument was that in Papua New Guinea different economic considerations apply and it is the duty of this Court to pay regard to those considerations and consequently to set a standard for damages of this nature appropriate to the economy of the country. That standard should be substantially lower than any standard found applicable in Australia.

The question of damages for non-pecuniary loss has bedevilled courts for a long time and has led to considerable divergencies in judicial reasoning and to a wide cleavage of opinion between the High Court of Australia and the House of Lords in England. I share the criticism of the late Sir John Barry in Tzouvelis v. Victorian Railways Commissioners [1968] V.R. 112.1 that in recent years there has been a vain desire to introduce rationality into what is really an intuitive process and I along with him share the hope of Windeyer J. "... that some day the law will provide some better way of meeting the consequences of day-to-day hazards than by actions for negligence and a measuring of damages by unprovable predictions, metaphysical assumptions and rationalised empiricism." — Skelton v. Collins (1965-1966) 115 C.L.R. 94 at p. 136.2. But that being said the task remains for this Court to consider whether the learned trial judge has erred.

In the light of the appellant's concession it is unnecessary to do more than briefly refer to the extent of the respondent's injuries and the sequelae of those injuries, to the circumstances in which he came to Papua New Guinea and to the future that he faces both in this country and in Australia to which he will eventually return. He was unconscious on admission to hospital and remained unconscious and then semi-conscious for several weeks. He had a large open wound extending from the root of his neck through the sternum and into the left thorax. He had a depressed fracture of the left malar and a fractured mandible. This resulted in his suffering a degree of double vision and affection of the infra-orbital nerve, and he has been left with a large insensitive area in his face. In addition he had a compound comminuted fracture of the left femur, compound fracture of the left tibia and fibula and fractures of the right tibial and femural condiles. The appellant was hospitalized first in Port Moresby and then i early January, 1972 in Brisbane from which he was discharged on 25th May, 1972. He had to be re-admitted on 15th July of that year for a further operation, a bone graft to the left tibia.

He came to Port Moresby in December, 1970 under a contract with the Papua New Guinea Development Bank after having worked for many years as a bank officer with the Bank of New South Wales in Queensland. He much preferred country to city life and this preference allied with a personal tragedy in the death of a child led to his coming here. He was a good bank officer, worked hard here and was in line for promotion. In addition he enjoyed life to the full both as a sportsman and a family man. His wage rate in Papua New Guinea was considerably higher than that which he had been receiving in Queensland and as far as I can see it was his intention to stay here at least until he had saved enough for the purchase of a home. His prospects of employment were good for some years to come. He has been left with a number of quite severe disabilities and is far from the man he was. I need say no more than I would not disagree with the monetary estimate arrived at by the learned trial judge were this case heard in Australia.

Two things are clear from the mass of authority cited to us. First, that in Australia the authorities show that there is no conventional sum or conventional range upon which or within which the award of damages for particular classes of injuries should be confined. As Barwick C.J. said in Arthur Robinson (Grafton) Pty. Limited v. Carter (1967-1968) 41 A.L.J.R. 327 at p. 330.3: "Comparisons with amounts awarded in other cases in near comparable or even in comparable circumstances ought not, in my opinion, to be used to achieve so called uniformity but merely used as an assistance in judging what in the community at or about the time the matter has to be decided is or has been regarded as fair: though even for this purpose I doubt that such comparisons have any great utility." See also Barry J. in Tzouvelis v. Victorian Railways Commissioners [1968] V.R. 112.4. The second is that assessment should be made having regard to the general standards prevailing in the community. As was said by the Court in Planet Fishries Pty. Ltd. v. La Rosa and Anor. (1968) 119 C.L.R. 118 at p. 125.5: "It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet's counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully; to allow for differences between the circumstances of those cases and the circumstances of the case in hand". And for example see also O'Brien v. Dunsdon (1965-1966) 39 A.L.J.R. 78 at p. 78.6 and Singh v. Toong...