Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 20 October 1983
• Citation: [1983] PNGLR 350
• Judgement Number: N435

Full Title: Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350

National Court: Bredmeyer J

Judgment Delivered: 20 October 1983

1 Negligence—common law claim for damages for personal injuries not defeated by custom—customary compensation received to be deducted from common law damages—volenti non fit injuria discussed—contributory negligence applied

2 Evidence—use of a criminal conviction in a civil case—rule in Hollington v Hewthorn [1943] KB 487 abolished by s47 Evidence Act

3 Damages—paraplegic—pain and suffering and loss of amenities—K90,000 to one plaintiff, K75,000 to another—economic loss—hire of labourer is a measure of the plaintiff's loss—future nursing expenses—done voluntarily by wife—Griffiths v Kerkemeyer (1977) 39 CLR 161 applied—periodic award for future medical and nursing expenses and economic loss—to terminate on death

4 Interest—principles discussed—rate of 8%

5 DAMAGES—Personal injuries—Negligence—Common law system appropriate to PNG—Customary compensation—Enforceability—Value to be deducted from common law damages.

6 NEGLIGENCE—Road accident cases—Common law claim for damages not defeated by custom—Customary compensation—Enforceability—Value to be deducted from common law damages.

As to Customary Compensation (354–363).

Held:

(1) The common law system of recoverability of damages for personal injuries arising out of the negligent use of a motor vehicle is not "inapplicable or inappropriate to the circumstances" of Papua New Guinea at this time.

(2) A custom as to compensation for motor vehicle accidents, (such as the Waghi custom) which provides for a claim for compensation by the victim and his clan against the driver and his clan which may be met in whole or in part by payment of cash, pigs and muruks, is not inconsistent with a constitutional law, the Customs Recognition Act (Ch19), any other statute or the general principles of humanity and is therefore, pursuant to the Constitution, Sch2.1, enforceable.

(3) A custom as to compensation for motor vehicle accidents (such as the Waghi custom) which provides for a sanction for non–payment of a claim for customary compensation, which is a killing of, or threat to kill, a member of the driver's clan, offends against the Constitution, various statutes, and is repugnant to the general principles of humanity and is therefore unenforceable.

(4) In proceedings to recover damages for personal injuries arising out of the negligent use of a motor vehicle, where there is proof of a custom as to compensation for such accidents and where there is proof of payment in accordance with that custom, the total value of the customary compensation should, in the public interest, be deducted from the common law damages assessed.

EVIDENCE—Civil proceedings—Use of criminal conviction—Use permitted to establish facts—Evidence Act (Ch48).

As to evidence of criminal conviction (s47).

Held:

The rule in Hollington v Hewthorn [1943] KB 587, that a plaintiff involved in civil proceedings arising out of the same facts as those involved in a criminal prosecution cannot adduce evidence of the conviction to establish those facts has been abolished by s47 of the Evidence Act (Ch48).

NEGLIGENCE—Road accident cases—Defences—Contributory negligence—Volenti non fit injuria—Defence of contributory negligence to be first applied to facts—"Fault".

NEGLIGENCE—Road accident cases—Contributory negligence—Passengers injured—Drunken driver situation—"Fault"—Carelessness for own safety in continuing to ride—Driver drinking en route—Wrongs (Miscellaneous Provisions) Act (Ch297), s40(1).

As to defences of contributory negligence and volenti non fit injuria (365–369).

Held:

(1) In proceedings for damages for negligence where the defences of contributory negligence and volenti non fit injuria are raised together the statutory defence of contributory negligence must be applied to the facts before the common law defence of volenti non fit injuria.

Brown v MVIT [1980] PNGLR 409 at 415, applied.

(2) Contributory negligence under s40(1) of the Wrongs (Miscellaneous Provisions) Act (Ch297) is based on "fault" which means a failure to take reasonable care for one's own safety.

(3) A passenger in a motor vehicle who en route saw the driver (whom he knew to have been drinking but not to be affected by the drink), open a bottle of liquor and begin to drink therefrom, and did nothing about it, in circumstances where it was feasible that he did something such as getting out of the motor vehicle and walking, was careless in looking after his own safety and his damages ought to be reduced by 15 per cent.

Discussion of the defence of volenti non fit injuria.

DAMAGES—Measure of—Future economic loss—Medical needs—Personal injuries—Road accident cases—Paraplegic—Five year life expectancy—Lump sum inappropriate—Power to make periodic payments—Periodic payments necessary to do justice—Constitution, s155(4).

JUDGMENTS AND ORDERS—National Court—Order necessary to do justice in circumstances—Assessment of damages for personal injuries—Future economic loss—Medical needs—Paraplegic—Five year life expectancy—Lump sum inappropriate—Power to make periodic payments—Periodic payments necessary to do justice—Constitution, s155(4).

As to Periodic Payments (381–386).

In proceedings to recover damages for personal injuries as a result of a motor vehicle accident where both plaintiffs were rendered paraplegic with a life expectancy of five years.

Held:

(1) The common law requirement that all parts of an award of damages for personal injuries should be contained in a lump sum was inapplicable and inappropriate to the circumstances of the country in this case.

(2) The court has power to make orders awarding damages by way of periodic payments for life, in lieu of a lump sum payment under s155(4) of the Constitution where it is "necessary to do justice in the circumstances of a particular case".

Mauga Logging Co Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 1) [1977] PNGLR 80; Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329; Avia Aihi v The State (No 1) [1981] PNGLR 81; New Guinea Cocoa (Export) Co Pty Ltd v Basis Vedbaek [1980] PNGLR 205; Dent v Kavali [1981] PNGLR 488 considered and applied.

INTEREST—Award of interest as damages—Time for claiming—Claim permitted at trial where no disadvantage—Same rate for pre–trial pain and suffering and economic loss—Interest allowed at 8 per cent.

As to Interest (386–390).

Held:

(1) A claim for interest on damages awarded or to be awarded should be claimed in the writ or the pleadings:

Riches v Westminster Bank Ltd [1943] 2 All ER 725, referred to.

(2) A claim for interest on damages awarded or to be awarded may with leave of the court be permitted at trial if the defendant is not disadvantaged by the lateness of the claim.

(3) A claim for interest on damages awarded for personal injuries should be allowed at the same rate for pre–trial pain and suffering as for pre–trial economic loss.

Pickett v British Rail Engineering Ltd [1978] 3 WLR 955 at 963, adopted and applied.

Cullen v Trappell (1980) 54 ALJR 295, considered.

Aspinall v Government of PNG [1980] PNGLR 50, not followed.

(4) The rate of such interest should be applied at 8 per cent.

DAMAGES—Personal injuries—Particular awards of general damages—Paraplegic—Confined to waterbed—Not motivated for activity or use of wheelchair—Life expectancy five years—Villager aged thirty–five with three wives—Active involvement in family vegetable gardens and sale of timber—Driver—Award of K90,000 for pain and suffering—Periodic payment for future economic loss and medical needs.

The plaintiff Aundak, a National villager, aged about thirty five with three wives and six children claimed damages for personal injuries arising out of a motor vehicle accident. As a result of the injuries sustained including a major fracture and dislocation of the spine at T12–L1,...