Bernard Julien Coady, an Infant, by his next friend, Christopher John Coady v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 55

• Jurisdiction: Papua New Guinea
• Judge: Cory J:
• Judgment Date: 04 May 1987
• Court: Supreme Court
• Citation: [1987] PNGLR 55
• Year: 1987
• Judgement Number: SC331

Full Title: Bernard Julien Coady, an Infant, by his next friend, Christopher John Coady v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 55

Supreme Court: Kapi DCJ, Amet J, Cory J

Judgment Delivered: 4 May 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BERNARD JULIEN COADY

AN INFANT BY HIS NEXT FRIEND CHRISTOPHER JOHN COADY

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Kapi DCJ Amet Cory JJ

27 May 1986

4 May 1987

DAMAGES — Measure of damages — Personal injuries — Loss of earning capacity — Infant plaintiff — Relevant principles — Need for real or substantial risk of restriction on employment.

A child aged four and a half years suffered head and facial injuries in a motor vehicle accident. His residual disabilities included severe scarring, occasional double vision and tiredness in one eye and loss of feeling in the forehead. In assessing damages the trial judge declined to make an award for future economic loss on the basis that there was no evidence of any intellectual impairment nor any evidence that any vision problems would actually affect future employment or career. On appeal:

Held

(1) In assessing liability for damages for loss of earning capacity in an award of damages for personal injuries in respect of an infant plaintiff, the tests to be applied are:

(a) Whether there is a substantial risk that the plaintiff's range of employment opportunities will be restricted or affected as a result of the injuries;

(b) If there is such a substantial risk the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if the risk materialises.

(c) Damages should be assessed according to established practice rather than by adopting an award of a conventional sum.

Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9 at 16, adopted and applied.

(2) (Amet J dissenting)

The appeal should be dismissed:

(per Kapi Dep CJ) The appellant had failed to prove that the nature of his injury was such that there was any substantial risk of restricting or affecting his future employment.

(per Cory J) There was a substantial risk that the range of the plaintiff's employment opportunities would be restricted on account of the injuries, but the injury was not so seriously disabling as to cause any financial damage to the plaintiff in the future.

Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450, affirmed.

Cases Cited

A P Davies v Taylor [1974] AC 207; [1972] 3 WLR 801; [1972] 3 All ER 836.

Clarke v Rotax Aircraft Equipment Ltd [1975] 1 WLR 1570; [1975] 3 All ER 794.

Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450.

D'Ambrosio v De Souza Lima (1985) 60 ACTR 18.

Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd's Rep 40.

Hutchinson v Sward (1966) 39 ALJR 500; [1966] ALR 1021.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

Jones v Lawrence [1969] 3 All ER 267.

Komisars v Guardian Assurance Co Ltd (1973) 5 SASR 515.

Lewis v Independent State of Papua New Guinea [1980] PNGLR 219.

Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132; [1977] 1 All ER 9.

SCR No 4 of 1980 (No 2); Re Petition of MT Somare [1982] PNGLR 65.

Smith v Manchester Corporation (1974) 17 KIR 1.

Taylor v Bristol Omnibus Co Ltd [1975] 1 WLR 1054; [1975] 2 All ER 1107.

Wahgi Savings & Loans Society Ltd v Bank of South Pacific Ltd (Unreported, Supreme Court judgment SC 185, dated 25 November 1980).

Appeal

This was an appeal from an award of damages in a personal injuries case, viz, Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450. The case is reported only in respect of the question of loss of earning capacity of the infant plaintiff.

Counsel

D Roebuck, for the appellant.

I Molloy, for the respondent.

Cur adv vult

4 May 1987

KAPI DCJ: This is an appeal against an award of damages for personal injuries in the National Court (see Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450). The appellant has appealed on the basis that the damages awarded are inadequate. There was a cross-appeal by the respondent but this was not proceeded with at the hearing.

The appellant, a child, was aged four and a half years at the time of the accident in June 1984. The trial judge described the injuries and the treatment received by the appellant immediately after the accident as follows (at 451):

"... lacerations to the forehead and to the eyelids and a piece of glass went through the roof of the left orbit into the front lobe of the brain.

On the day of the accident, he was operated on at Port Moresby General Hospital where multiple series of sutures were performed to the lacerations on the forehead and eyelids. The plaintiff was flown to Brisbane the next day where he was operated on to remove the glass fragment from the front lobe of the brain. The plaintiff was in hospital for about ten days and for part of that time he would have been unable to see because of the wounds and the bandaging.

The head wounds have now apparently healed well, however, there is substantial scarring."

The trial judge went on to find that,

"There is no evidence of any personality or intellectual impairment or permanent injury to vision, however, there is evidence of occasional double vision and some sensory loss over the forehead. The double vision would appear to be a symptom of tiredness and appears when the plaintiff tries to read or concentrate for too long. It is perhaps still too near to the accident for any problem in this area to have settled".

In exercising appellate jurisdiction, this Court,

"shall give paramount consideration to the dispensation of justice".

See s 158 of the Constitution.

The nature of this Court's appellate jurisdiction since Independence is clearly set out in the judgment of Miles J in Lewis v Independent State of Papua New Guinea [1980] PNGLR 219. He has set out the principles clearly, having in mind the constitutional provisions. I adopt those principles in determining this appeal.

The first two grounds of appeal involve findings of fact by the trial judge. [His Honour then considered these grounds of appeal in a manner not calling for report concluding that there were no errors in the conclusions reached by the trial judge.]

LOSS OF EARNING CAPACITY

In respect of this head of damage, the trial judge reached a conclusion that there was no real evidence that there could be future economic loss and made no award. The appellant has argued that there is evidence to show that the injuries received by the appellant have affected his earning capacity and therefore he should be awarded damages.

The claim for damages arises out of injuries and is a common law action. Therefore, the law applicable is the common law as adopted under Sch 2.2 of the Constitution which becomes part of the underlying law. The common law principles which are binding on this Court (by virtue of the words, "... shall be applied and enforced,..." under Sch 2.2 of the Constitution) are the principles applicable in England. That is the primary source of common law. See Wahgi Savings & Loans Society Ltd v Bank of South Pacific Ltd (Unreported, Supreme Court judgment SC 185, dated 25 November 1980), see Iambakey Okuk v Fallscheer [1980] PNGLR 274 and SCR No 4 of 1980 (No 2); Re Petition of MT Somare [1982] PNGLR 65. The common law principles relating to economic loss based on loss of earning capacity may be found in the leading case of Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9. Although this is a case decided after 16 September 1975, the Court of Appeal adopted the principles in England which existed immediately before Indeendence in Papua New Guinea. In this case, Browne LJ (at 15) makes a sharp distinction between two separate claims which may be considered under the general head, economic loss. They are:

(1) loss of actual earnings by persons who were employed at the time of injuries received in the accident; and

(2) loss of earning capacity.

The first deals with the actual losses which can be calculated mathematically. Whereas, the second category deals with the risk that the plaintiff has lost the earning capacity to obtain an equivalent or a better job in the future. This head of claim presents the court with difficulty in assessment.

The claim for loss of earning capacity is different in nature. To use the words of Browne LJ, who described it (at 15) as:

"A plaintiff's loss of earning capacity where as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his injury.... This head of damage generally arises..., but there is a risk that he may lose this employment at some time in the future and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job".

Browne LJ then goes on and sets out the proper approach to assessing this head of claim (at 17):

"The consideration of this head of damages should be made in two...