N643

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KOSI BONGRI

V

THE INDEPENDENCE STATE OF PNG AND ANDREW KAUVE

Wewak & Waigani
Los J

12 September 1987
27 November 1987

DAMAGES- Personal injuries - Particular awards of general damages - Arm injury - Comminuted fracture of right elbow - Loss of efficient use for heavy labour - Male removalist in late forties - Award of K7,500 general damages - Award of K4,851 future economic loss.

DAMAGES- Contribution between tortfeasors - Master and servant - Negligence of servant/driver of motor vehicle - No common law right to indemnity - Statutory power to order contribution discretionary - Relevant considerations - Contribution of 20 per cent ordered - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 37(2)(c).

MASTER AND SERVANT- Liability of master - Negligence of servant driving motor vehicle - No common law right to indemnity - Statutory power to order contribution discretionary - Relevant considerations - Contribution of 20 per cent ordered - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 37(2)(c).

The plaintiff, a male in his late forties and an unskilled worker involved in the heavy packing and removalist business, was injured in a motor vehicle accident and suffered a comminuted fracture dislocation of the right elbow, which healed leaving a 100 per cent loss of the efficient use of the elbow for heavy manual labour. He sued the State of Papua New Guinea as owner of the vehicle and vicariously liable for the acts of its driver and the driver himself. At the hearing liability was admitted and the State sought a contribution from the driver.

Held:

(1) General damages for pain and suffering and loss of amenities should be assessed at K7,500.

(2) On the basis of a probable working life of 11 years with light duties, damages for future economic loss should be assessed at K4,851.

(3) At common law a master has no right to claim contribution or indemnity from a servant for breach of duty in respect of the performance of the servant’s duty.

Jones v Manchester Corporation [1952] 2 QB 852, followed.

(4) The provision under the Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 37(2)(c), that a tortfeasor "may recover contribution from any other [joint] tortfeasor" confers a discretionary power on the court to order contribution between joint tortfeasors, including between master and servant, where the master is vicariously liable for the acts of the servant.

(5) In the circumstances and having regard, inter alia, to the senior position of the driver, the acknowledged misuse of government vehicles and the increasing number of motor vehicle claims, the driver should be ordered to contribute 20 per cent of the damages.

Cases Cited

The following cases are cited in the judgment:

Jones v Manchester Corporation [1952] 2 QB 852; 2 All ER 125.
Kaka Kopun v Independent State of Papua New Guinea [1980] PNGLR 557.
Kokonas Kandapak v Independent State of Papua New Guinea [1980] PNGLR 573.
Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294.
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160.

Statement of claim

This was the hearing of a claim for damages for personal injuries suffered as a result of a motor vehicle accident. Liability was admitted at the hearing and his Honour dealt with damages and contribution.

Counsel:

A Jerewai, for the plaintiff.
L Karri, for first defendant.
Cur adv vult

27 November 1987

LOS J.: This claim arises from the personal injuries received by the plaintiff in a motor vehicle accident. The liability was admitted when the hearing commenced. Hence the only issue was the assessment of damages. The accident occurred along Boram Road at Wewak on 11 January 1982. The second defendant was driving an Isuzu tow truck registration No ZGA 111 to tow a broken down vehicle when he collided with another car, a Toyota stout, registration No ACW 559. The first defendant was and is the employer of the second defendant.

Soon after the accident the plaintiff was admitted to the Wewak Hospital and there he remained until 17 February 1982. He continued to receive physiotherapy in the succeeding weeks. The particulars of the injuries were admitted in the evidence by consent:
"His major injuries were comminuted fracture dislocation of the (R) elbow. He was treated conservatively and was discharged. He has a permanent disability of (R) upper limb as a result of injury and there is 100% loss of efficient use of (R) upper limb."

The report of further examination states:

"... findings are still the same. He has a pseudo arthiosis (false joint) of (R) elbow and as a result he has 100% loss of efficient use of (R) elbow for heavy manual labour but he can use his (R) upper limb for some light work."

The plaintiff at the time of the accident was allowed by his employer M C Cassell Pty Ltd to go and pick up his family from Angoram. The company was based in Madang and according to his employer, the plaintiff was employed on a casual basis as a packer and removalist. He was an extremely dependable worker. After the accident and discharge from the hospital the plaintiff was no longer employed. As appears from the nature of the job and supported by his own evidence he could no longer be useful in the employ of the company, in his former capacity.

For two weeks after the accident the plaintiff suffered pain. His arm was in a sling and the treatment continued for some four months. The injuries left him with wasting of the biceps and triceps, inability to probate and supernate. Light work can be undertaken which I will deal with later on but he continues to suffer a general discomfort of not being able to use the right arm.

Under the heading of pain and suffering the plaintiff seeks damages in a sum of K25,000. The basis of this claim is from the comparison of the percentage loss of the efficient use of the plaintiffs injured arm with the percentage loss in other cases, particularly the case of Kokonas Kandapak v Independent State of Papua New Guinea [1980] PNGLR 573 and Kaka Kopun v Independent State of Papua New Guinea [1980] PNGLR 557. Kandapak suffered a compound fracture of the right humerus with damages to the ulna nerve causing a claw hand and deformity. His treatment included bone plating and grafting. The end result was that he suffered 50 per cent loss of the effective use of his right hand and therefore he had difficulties with lifting and gripping. He was awarded K10,000 for pain and suffering. Kopun’s principal injuries were fractures of the left forearm and wrist resulting in a permanent deformity because of misalignment in union. He was awarded K18,000. In Pangis Toea v Motor Vehicles Insurance (PNG) Trust [1986] PNGLR 294 the plaintiff suffered multiple fractures being the fractures of the left arm and the left humerus, a compound fracture of the left femur, a fracture and dislocation of her left hip and a cut on her forehead. She was left with an arm that was between 95-100 per cent totally and permanently useless.

There are various but common features of those three cases. There are also special features that relate to each case. All of the three cases involve plaintiffs who live in the harsh conditions of the highlands area. All received extensive treatment. They suffered pain for longer periods of time. Their social lives were hampered as a result of the accident. Kandapak’s marriage was adversely affected, while Pangis Toea’s husband rejected her altogether.

In comparison with the plaintiff before me, the damages to Kandapak’s ulna caused claw hand and deformity. Pangis Toea developed an unattractive claw hanging uselessly on her side. In addition, the hand was susceptible to further injuries because the claw hand could neither move nor feel pain. The plaintiff before me suffered nothing of that sort. Kopun was a "one-handed-man" before the accident. His left hand, the only normal hand, was injured in the accident. This is like a one-legged man injuring his only leg or one-eyed man injuring the only eye that he has.

I observed the plaintiff in court and apart from the injuries described by Dr Srinivaska, he was not suffering from any peculiar injuries. His percentage loss according to Dr Srinivaska relates to heavy manual labour. In my view therefore the appropriate award under this heading is K7,500.

ECONOMIC LOSS

The plaintiff was an unskilled worker, involved in heavy packing and removing. He had been so employed for many years. An affidavit filed by the plaintiffs employer says that the plaintiff earned K45 per week. At the hearing the plaintiff could not come out with one figure when giving evidence. In the examination-in-chief he said he was getting K50 weekly. Later his lawyer told him that his former employer said K45 per week. He agreed. In the cross-examination he was asked to clarify whether K50 he mentioned earlier was a weekly payment or fortnightly payment. He said fortnightly. In re-examination he was again asked to clarify and his own lawyer ended up cross-examining him:

"Q: Did you receive weekly payment or fortnightly?
A: Fortnightly.

Q: You received K50 every fortnight?
A: Yes.

Q: Your boss said you received K45 per week?
A: If there was plenty of work I received K50. If there was less work I received K45."

There was no other witnesses to help out. The plaintiffs employer has left the country. I have to make sense out of the confused evidence. Relying on the general practice, I hold that the plaintiff was paid fortnightly. The pay varied depending on the availability of goods or effects to pack and remove. On average the plaintiff would have been on K24 per week. He was out of work from 11 January 1982 to 30 August 1982: seven months and 19 days. Hence K24 per week for 31 weeks he would have lost K744.

What would be the future loss? Heavy labour is certainly out of the way. During the employment he was at times asked to undertake lighter work like making tea. I am not informed whether that company still exists. The company appeared to have been in the name of one man, ie plaintiffs employer. He has since left the country. At any rate there is no short supply of manpower in relation to making tea or coffee or other lighter kind of work like sweeping or cleaning. The accused comes from the carving area generally but I do not have any evidence as to his specific area and as to whether he himself is skilled in carving but he cannot now utilise the skill because of the injury to his arm. Working in a vacuum, however, I would have to accept the argument by Mr Karri that a loss to a casual labourer employed on ad-hoc basis in the town like Wewak or Madang would be on K10 per week.

The plaintiff was about eight or nine during the Second World War. That would make him 49-50 years of age. His life expectancy would be around 19 years. He seems to be an urban dweller thus health services are within easy access. At a young age the health services might not have been good and that might have an effect on his future. The life expectancy might be about 16. But he is not expected to work until he drops dead of old age. I have seen the plaintiff in the witness box; his working life might be from 10-12, say, 11 years.

The proper discount rate for future economic loss as per Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 is 3 per cent. Hence K10 per week for 11 years computed at 3 per cent would give K5,390. Allowing for contingencies of life at 10 per cent a sum of K4,851 is awarded.

SPECIAL DAMAGES

The only special loss claimed by the plaintiff is a sum of K57 made up of small expenses for obtaining a police report, X-ray charges and other hospital expenses. This was agreed upon by the first defendant. This sum therefore is awarded to the plaintiff.

INTEREST

The statutory power to award interest on damages comes from the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52). Under this Act the National Court has a wide discretion as to the percentage of interest that can be awarded on pre-judgment losses. The percentage most commonly used is 4 per cent. The plaintiff was injured on 11 January 1982. It is five years and 10 months approximately since the accident.
Pain and suffering would have been greater in the pre-judgment period. I therefore apportion K5,000 for that period and award interest on that amount. Hence K5,000 at 4 per cent for five years and 10 months is K1,166.67. This sum is awarded to the plaintiff. I also award 4 per cent interest on the aggregate amount for special loss, K57, and loss of wages, K744. Hence K801 x 4 per cent x five years and 10 months is K186.90. This sum is awarded.

Summary of the awards.		
		
General damages		
pain and suffering	7,500.00 	
		
Economic loss		
Wages	744  	
Future	4,851 5,595.00 	
		
Special loss	57.00 	
		
Total	K13,152.00 	
Interest	K 1,353.57 	
Grand Total	K14,505.57 	

CONTRIBUTION

At the end of the arguments on damages and costs counsel for the first defendant claimed contribution from the second defendant. Counsel relied upon two authorities: first, a statutory claim which is clearer than the second one being a broad claim — breach of due care by the second defendant in the performance of his duty.

The second defendant was and is in the employ of the first defendant. The difficulty arises as to whether the first defendant as a master can claim indemnity or contribution from the second defendant as servant. This is not possible at common law according to the views of Singleton and Denning LJJ, in Jones v Manchester Corporation [1952] 2 QB 852. This was a case in which a patient died as a result of negligent administration of anaesthetic by an experienced doctor. The widow of the deceased successfully sued the doctor and the hospital board. The doctor and the board then claimed an indemnity against each other for damages and costs. The board was ordered to indemnify the doctor whereupon the board appealed. Denning LJ at 868-869 said:

"A servant promises, no doubt, to do his duty to his master to the best of his ability, but he does not promise to indemnify him against liability to third persons, and I see no reason why any such promise should be implied. The master’s claim against the servant, if it exists at all, must, I think, be based not on a promise of indemnity, but in damages for breach of contract. The servant, it can be said, promises to do his work with reasonable care; and if he fails to do so, with the result that the master is made liable to a third person, the master can recover the amount as damages. That is how it was put by Warrington LJ in Weld-Blundell v Stephens [1920] AC 956. But the difficulty about the way of putting it is that, although the servant is alone negligent, nevertheless in the eye of the law the master and the servant are both tortfeasors. They are indeed joint tortfeasors. (See per Scrutton LJ in The Koursk [1924] 9 P 140.) This is shown by the fact that they could, even in the old days, be sued jointly for the one cause of action: see Stephens v Elwall (1915) 4 M & S 259; 105 ER 830 per Lord Ellenborough CJ. If the plaintiff only sued one of them and obtained judgment, it was a bar to an action against the other: Wright v London General Omnibus Co (1877) 2 QBD 271. As they were joint tort-feasors, it followed at common law that, if one of them was made to pay, he could not claim contribution or indemnity from the other, for there could be no contribution between joint wrongdoers: Merryweather v Nixan (1799) 8 TR 186. There were, of course, some exceptions to that rule, but, so far as I know, no exception was ever introduced to allow a master to claim contribution or indemnity from his servant."

The second defendant occupies a senior position, as senior plant inspector. At the time of the accident he was a plant inspector. He was told by his foreman and the supervisor to go and tow a broken down government vehicle and it was when he was driving a tow truck for that purpose that the accident occurred. As a civil servant he is required to know the Public Service Act and the regulations. He is required to know that he must perform his duties diligently. There are penalties should he fail to so perform. But I am not sure one can imply from a civil servant’s obligation to perform his duties diligently that failure to observe the obligation means an agreement to indemnify the State for damages payable to a third person.

Counsel for the first defendant advises that there is now a practice where the State collects contribution from the negligent employee drivers.

Counsel also adduced evidence through the examination of the second defendant that the practice has been established and is in existence. No legal basis has been shown to me for such a contribution, or whether it has been in existence for so long that it can be recognised as amounting to an enforceable rule; I cannot assume too much. I understand many of the policy considerations behind counsel’s submission, but this could be left until another time where more facts or data are made known to the court.

This leaves me to look at s 37 of the Wrongs (Miscellaneous) Provisions Act (Ch No 297) (the Wrongs Act). Section 372(c) provides:

"(c) a tort-feasor liable in respect of the damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage (whether as a joint tort-feasor or otherwise), but no person is entitled to recover contribution under this section from a person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought; and ..."

Both Singleton and Denning LJJ thought that in the absence of breach of any contract or absence of any rules of common law, a master could only claim contribution under s 6 of the Law Reform (Married Women and Tortfeasors) Act 1935. The reason being that the statute gave the court a discretion to order any contribution between tortfeasors. This is so because of the language of the statute especially the use of the words, "may recover contribution". With respect I adopt the reasoning of their Honours and apply it to the case before me because the language of s 37 of the Wrongs Act is similar: a tortfeasor liable in respect of the damage may recover contribution from any other tortfeasor.

The discretionary power extends to and includes an order on proportion of payment. The matters to be taken into account includes skills of a servant, errors due to inexperience and lack of supervision or other personal failure by a master.

The second defendant was in a senior position. He was found guilty by the National Court of driving without due care (this he admitted in evidence). The first defendant also pointed out in support of the claim for contribution and the rate of contribution, that general misuse and careless driving of the government vehicles seem to be on the rise and the personal injury claims against the first defendant triple every year. These are in my view valid considerations. However, if I could make three observations here. The matters of fact though important, have been submitted from the bar table. Secondly, the proportion I determine should not appear to amount to a punishment upon the second defendant who had already been punished by the National Court in the exercise of its criminal jurisdiction. Thirdly, courts should not be expected to stand in for a master’s lack of proper supervision and control over a servant. Fourthly, and where applicable, a servant should not be made to be an insurer of the master against property damages or personal injuries caused to a third party.

I am not sure whether the second defendant was required as a matter of normal duty to drive a tow truck and tow the broken down vehicle, or whether he was merely required to undertake that duty because other officers whose normal duty was to drive tow trucks were not available. Doing the best as I can I apportion the contribution at 80 per cent to the first defendant and 20 per cent to the second defendant. That is, first defendant K11,604.45 and second defendant, K2,901.12.

As to the method of payment I leave it to the first defendant and the second defendant to organise. Whether the first defendant pays the full amount then recoups 20 per cent from the second defendant. Or each defendant pays the contribution separately, noting of course that liability was admitted in full by the first defendant though vicariously.

COSTS

There was little or no indication that the liability would be admitted. The plaintiff was ready to call witnesses to adduce evidence to prove liability as well as damages. Only on the first day of the hearing was liability admitted. The admission of course led to the shortening of the trial.

The second defendant was not in a position to influence any decision as to whether there should be a trial or whether there should be an admission of liability. I do not therefore order any costs against him. However, I award two thirds of the total costs against the first defendant.

Judgment accordingly

_____________________

Lawyer for the plaintiff: Alois Jerewai.
Lawyer for first defendant: State Solicitor.