The State [The Government of Papua New Guinea] v Trevor McCleary

• Jurisdiction: Papua New Guinea
• Judge: Frost CJ, Prentice DCJ, Williams J
• Judgment Date: 06 August 1976
• Citation: [1976] PNGLR 321
• Court: Supreme Court
• Year: 1976
• Judgement Number: SC102

Supreme Court: Frost CJ, Prentice DCJ, Williams J

Judgment Delivered: 6 August 1976

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE GOVERNMENT OF PAPUA NEW GUINEA

V

MCCLEARY

Waigani

Frost CJ Prentice DCJ Williams J

28-29 June 1976

6 August 1976

APPEAL — Damages — Excessive damages — Personal injuries — In what circumstances appeal court will interfere — Wrong principle of law — So inordinately low or so inordinately high as to be wholly erroneous.

DAMAGES — Measure of damages — Personal injuries — General principles — Economic loss — Marriage breakdown — Sexual impotency — Pain and suffering — Loss of amenities.

DAMAGES — Personal injuries — Particular awards of general damages — Spinal injury — Aggravation of pre-existing congenital condition — Severely restricted agility — Chronic low grade re-active depression — Marriage breakdown advanced — Sexual impotency — Some loss of earning capacity — Male aged 33 conducting poultry and photography business in partnership with wife working as shipping clerk at date of trial — Award of K40,000 general damages substituted for award of K77,000 general damages.

On appeal against an award of damages for personal injuries on the ground that it is excessive, before the appellate court can properly intervene, it must be satisfied, either that the trial judge, in assessing the damages, applied a wrong principle of law, or that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

Flint v. Lovell, [1935] 1 K.B. 354 at p. 360, Davies v. Powell Duffryn Associated Collieries, Ltd., (No. 2) [1942] A.C. 601 and Nance v. British Columbia Electric Railway Company Ltd. [1951] A.C. 601 at p. 613 adopted and applied.

The plaintiff (respondent), a married man with two children formerly employed as a shipping clerk and engaged in conducting, in conjunction with his wife, a poultry farm and a photographic business was injured in a motor vehicle accident in December, 1970 when aged about 33. His principal injury was aggravation of a pre-existing congenital back condition necessitating an operation to his lumbar spine, resulting in severe limitations in agility, impotency and a "chronic low grade re-active depression". Some eighteen months after the accident the plaintiffs marriage broke up and subsequently the partnership in the poultry business folded and this business together with the photographic business were wound up by court orders. The plaintiff continued his employment as a shipping clerk. In proceedings for damages the plaintiff was awarded general damages of K77,000 on the following bases:

Economic lossK37,500-K45,000

Marriage breakdown1,500-3,000

Impotence2,000-3,500

Pain and suffering and loss of amenities25,000-35,000

On appeal therefrom on the ground that the damages awarded were excessive;

Held

(1) the award was so inordinately high that it should be set aside; and an award of $40,000 substituted therefore.

(2) As to the head of economic loss, bearing in mind that the plaintiff is to be compensated for loss of earning capacity and not loss of earnings, the appropriate range was so inordinately high as to be a wholly erroneous estimate of the damage suffered.

Arthur Robinson (Grafton) Pty. Ltd. v. Carter (1968-1970), 122 C.L.R. 649 referred to.

(3) As to the head of marriage breakdown, the most favourable construction to be placed upon the trial judge's findings was that the breakdown would have occurred in any event and that the injuries had the effect only of advancing an otherwise inevitable event, for which the plaintiff was entitled to a small amount of compensation more appropriately taken into account under the heading of "Pain and Suffering, Loss of Amenities".

Hird v. Gibson, [1974] Qd. R. 14 referred to.

(4) As to the head of sexual impotence, this should properly be considered as an item under the head of "Pain and Suffering, Loss of Amenities".

McGregor on Damages 13th ed. para. 1143.

(5) As to the head of "Pain and Suffering, Loss of Amenities", the appropriate range was so excessive as to warrant interference.

Appeal

This was an appeal against an award of $77,000 general damages for personal injuries suffered as a result of a motor vehicle accident, on the ground that the award was excessive.

Counsel

JA Griffin and CJ Witteveen for the appellant (defendant)

RHB Wood for the respondent (plaintiff)

Cur. adv. vult.

6 August 1976

FROST CJ: For the decision of this appeal, which is against an award of damages for personal injuries on the ground that it was excessive, the law to be applied consists of the relevant principles and rules of the common law of England, except to the extent that they are inapplicable or inappropriate to the circumstances of the country from time to time. (Constitution, Sch. 2.2 (1) (b) ). In England the rule is well-established that, in the words of Greer L.J. an appellate Court "will be disinclined to reverse the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum." Flint v. Lovell [1935] 1 K.B. 354 at p. 360. The learned Lord Justice then went on to state the rule in a passage which was approved and adopted by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ltd. [1952] A.C. 601, and also by the Privy Council in Nance v. British Columbia Electric Railway Company Ltd. [195] A.C. 601 at p. 613. The Privy Council there expressed the principle in the following terms:

"Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage ..."

That passage is entirely appropriate to the jurisdiction of this Court because an appeal to the Supreme Court is an appeal by way of rehearing as is the case of an appeal to the Court of Appeal in England. (Flint v. Lovell [1935] 1 K.B. 354 at p. 360). It is also, in my opinion, clearly applicable to the circumstances of Papua New Guinea. To the extent that it lays down a more stringent rule before an appellate court may intervene, the judgment of Barwick C.J. in Wilson v. Peisley (1976) 50 A.L.J.R. 207 which is referred to by Williams J. is to be taken as formulated for Australian circumstances.

Applying the principle as stated by the Privy Council and also the requirement that damages assessed for personal injuries should be moderate and fair in the circumstances of the case, I agree with the Deputy Chief Justice and Williams J., generally for the reasons stated by them, that upon the findings of the trial judge, the award was so inordinately high that it should be set aside, and that judgment should be given for the respondent in the sum of K45,000 in the terms as stated by Williams J.

Before leaving the case I wish to add only that, in my opinion, there are no valid reasons to support the submission by counsel for the appellant that the case of Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz [1975] P.N.G.L.R. 262 should be now reviewed by this Court.

PRENTICE DCJ: The appellant was the defendant in an action for damages based on the negligent driving of a motor vehicle. There was an award for the respondent (plaintiff) in the trial, in the sum of K82,000, which included an undisputed figure of K5,000 for out-of-pocket expenses. The remainder of the damages K77,000 is challenged on a number of grounds.

The respondent suffered injuries principally to his back from which it is alleged impotence, marriage breakdown, pain and suffering and loss of amenities and economic loss from breakdown of a poultry business and of a photographic business, and loss of earning capacity — resulted.

Leave of this Court is sought to appeal against two of the trial judge's findings of fact, namely:

1. that the plaintiff was rendered impotent by the accident and suffered injuries on that score within a range of K2000-K3000;

2. that the plaintiff's injuries lost him capacity to earn as a photographer.

I would grant the leave requested.

The trial judge expressed findings in the shape of comprehensive ranges of damages as follows:

Economic lossK37,500-K45,000Marriage breakdown1,500-3,000Impotence2,000-3,500Pain and suffering and loss of amenities25,000-35,000The appellant contends that in testing the lump sum award actually made, this Court should assume that his Honour made an award of a mean in the range for each head of damage, made allowance for over-lapping, and then rounded off. Thus, if mean figures are taken and rounded off so as to read K43,065, K2,349, K2,871 and K28,710 and added to the figure of K5,000 out-of-pocket; a figure of...