McCleary, The State v [1976] PGSC 11; [1976] PNGLR 321 (6 August 1976)

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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:

N1>(1) the award was so inordinately high that it should be set aside; and an award of $40,000 substituted therefore.

N1>(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.

N1>(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”.

N1>(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”.

N1>(5) As to the head of “Pain and Suffering, Loss of Amenities”, the appropriate range was so excessive as to warrant interference.

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.

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[ccclxxi]¹. 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.[ccclxxii]², and also by the Privy Council in Nance v. British Columbia Electric Railway Company Ltd.[ccclxxiii]³. 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[ccclxxiv]⁴). 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[ccclxxv]⁵ which is referred to by Williams J. is to be taken as formulated for Australian circumstances.

N1>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.

N1>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[ccclxxvi]⁶ should be now reviewed by this Court.

N1>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.

N1>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.

N1>Leave of this Court is sought to appeal against two of the trial judge’s findings of fact, namely:

N2>1. that the plaintiff was rendered impotent by the accident and suffered injuries on that score within a range of K2000-K3000;

N2>2. that the plaintiff’s injuries lost him capacity to earn as a photographer.

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

The 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 K81,995 is reached.

The grounds of appeal, expressed as points of law, contend that marriage breakdown should not be treated as a separate head of damage and that there was no evidence to support awards approximating the mean figures set down above. I am of the opinion that the judgment of his Honour the trial judge, can only fairly be read as indicating that his Honour did in fact award within the lump sum figure, sums roughly equivalent to the mean figures expressed above. I consider that his Honour’s findings of fact (implicit and explicit) on the two matters challenged, are supported by the evidence and I would dismiss the appeal on these grounds. However, I am of the view that insofar as I consider his Honour to have made allowance as separate heads of damage for marriage breakdown, sexual problems, and for pain and suffering and loss of amenities of life; an element of overlapping has intruded into the calculation of damages.

The credibility of the plaintiff must have been very much a warning light in his Honour’s mind. But as I understand the correct approach, the inferences most favourable to the award reasonably open to the judge, must be accepted as the footing of any criticism.

Looking at the total sum awarded in the light of the injuries and resultant facts and setting it alongside other verdicts in Papua New Guinea (in the very limited way in which one may do so), I find the award herein so disproportionate on the findings of fact as to call for interference. As mentioned above I feel that his Honour may have introduced an element of overlapping. I consider also that he may have overlooked the need for caution against speculation as to economic loss based on other than a balance of probabilities established by evidence. I find the remarks of Sholl J. in Victorian Stevedoring Pty. Ltd. v. Farlow[ccclxxvii]⁷ a helpful reminder of what I consider an apt approach on this point. If these two aspects are insufficient to account for what I consider the inordinately high level of the verdict, nevertheless the figure is such to my mind as to demonstrate an error present though otherwise undisclosed.

N1>I agree with the opinion of the Chief Justice that the case of Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[ccclxxviii]⁸ should not now be reviewed by this Court.

N1>I have had the advantage of reading in draft also the judgment of my brother Williams. I agree generally in it. I would allow the appeal. I consider that the figure of K45,000 would be an appropriate one in the circumstances, and that this Court should substitute a verdict for the plaintiff in that amount.

N1>WILLIAMS J: The respondent sued the appellant for damages arising from a motor vehicle accident. On the 1st December, 1975 he was awarded damages totalling K82,000.00. As was the case in the trial, no issue as to liability arises in this appeal which is concerned only with the question of the quantum of the damages awarded.

N1>It is, I think, convenient to relate briefly a number of matters which give a general background to the matters and which are not in contest.

N1>At the time of the accident, namely 11th December, 1970, the respondent was aged about thirty-three years, was married and resided with his wife and children in Rabaul. In 1965 whilst employed as a shipping clerk he, in conjunction with his wife, started a poultry farm. At the end of 1969 he resigned his position as a shipping clerk and at the date of the accident was engaged in running the poultry farm and a photographic business which was apparently commenced early in 1970.

N1>Immediately following the accident it was not thought that the plaintiff had been seriously injured. He was admitted to hospital on the 11th December, 1970, he had a cut on the face and complained of pain in the right knee. It was thought that there may have been a fracture of the knee but an x-ray proved this to be not so. He was discharged from hospital on the 13th December, 1970. On the 21st January, 1971 he sought medical advice complaining of pain in the lower back. He received treatment for that condition and was hospitalized for a short time, as occurred on several subsequent occasions in 1971. In February, 1972 Mr. Pozzi, a Brisbane surgeon, performed an operation on the respondent’s back. He remained in Australia convalescing until May, 1972. Following the operation he continued to have trouble with his back. He also complained of trouble in passing urine and was unable to obtain penile erection. In addition he was generally depressed. He consulted a specialist psychiatrist, Dr. Apel, and a urologist, Dr. Lynch.

N1>Following the respondent’s return to Rabaul in May, 1972 a breakdown in his marriage occurred. The spouses parted in August, 1972. Proceedings relating to the custody of the children were brought. The wife was awarded custody of the children and the respondent was given access. However, the wife, apparently in breach of the Court’s order, removed the children from the jurisdiction thus, for all practical purposes, denying the respondent the access to which he was entitled. The partnership between the respondent and his wife in the poultry business broke up and an action for the winding-up of the partnership is pending. The land upon which the poultry business was conducted was owned by the respondent’s father-in-law who took action for the eviction of the respondent from this land. On 16th May, 1973 an order was made in the District Court, Rabaul against the respondent but the order was stayed pending the determination of the winding-up action. The photographic business was also carried on in premises belonging to the respondent’s father-in-law and a similar order was made in the District Court against the respondent with respect to these premises.

N1>There are two other matters to which reference should be made in this summary of the background facts. The first is that the respondent had a congenital back disorder. The other is that at the time of the trial the respondent was engaged in his former occupation of a shipping clerk on a salary of K6,000.00 per annum.

N1>It appears from the reasons for judgment of the learned trial judge that he had regard to four heads of damage when arriving at his assessment of damages. The first was “Economic Loss” which he thought should be in the range of K37,500.00 to K45,000.00 The second was “Sexual Problems” with a range of K2,000.00 to K3,500.00. The third was “Breakdown of Marriage” with a range of K1,500.00 to K3,000.00. The fourth was “Pain and Suffering, Loss of Amenities” with a range of K20,000.00 to K35,000.00. The verdict included a component of K5,000.00 for special damages which is not in contest in this appeal.

N1>The verdict and findings of the trial judge are challenged on a number of grounds. First, it is contended that the trial judge erred in law in awarding damages for economic loss within the range of K37,500.00 to K45,000.00 on the ground that there is no evidence or no more than a scintilla of evidence to support the award. Secondly, it is contended that his Honour erred in law in awarding damages under the heading of “Breakdown of Marriage” on the ground that it is contrary to authority to award damages for breakdown of marriage as a separate head of damage. Leave was also sought to add a ground of appeal to the effect that the trial judge’s finding that the respondent’s impotency caused the breakdown of his marriage and the award of damages under this head was against the weight of the evidence but this application was subsequently withdrawn. Thirdly, it is contended that the finding that the respondent was impotent was against the weight of the evidence. Fourthly, it is contended that the award within the range of K20,000.00 to K35,000.00 for pain, suffering and loss of amenities was grossly excessive in the circumstances of the case and paid no regard to comparable awards made in Papua New Guinea and in Australia. The same challenge is made to the whole award when considered as a global amount.

N1>For the respondent it is argued that this Court should not look at the award in the light of a number of components but that the Court should examine it as a global award. In this respect reference was made to the observations of Barwick C.J. in the High Court of Australia in Arthur Robinson (Grafton) Pty. Ltd. v. Carter[ccclxxix]⁹ and in the case of Wilson v. Peisley[ccclxxx]¹⁰. It is argued that when the award is considered as a global amount then it is not shown to be so excessive as to warrant interference from this Court. The test to be applied by an Appellate Court was that laid down by Barwick C.J. in Wilson v. Peisley[ccclxxxi]¹¹ where at p. 209 he said:

“These rules or principles stem from the fundamental desirability of the finality of a trial in our jurisprudence. Our method of resolution of claims for damages is by trial: not by appeal. Hence the great responsibility of the trial judge and the importance of his position and his work. The public interest is that litigation should end: not that it should be indefinitely prolonged by retrial or by reassessment. The setting aside of an award of damages in a trial which has not been irregular or unfair, and where there is neither challenge to the findings of fact made by the trial judge nor any demonstrated misconception of the evidence should, in my opinion, be a most unusual event, to occur only in circumstances where the disproportion between injury and award of damages is so great as to make the award quite unreasonable, indeed outrageous, in the circumstances, whether by being too great or too small: and therefore of itself a demonstration of error present though otherwise undisclosed.”

Reference should, however, I think be made to the judgments of the other members of the Court in Wilson v. Peisley[ccclxxxii]¹². McTiernan J. in this connection adopted the test laid down by Greer L.J. in Flint v. Lovell[ccclxxxiii]¹³ to the effect that a Court before it interferes with an award of damages should be satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered; that it is not enough that there is a balance of opinion or preference and that the scale must go down heavily against the figure attacked if the Appellate Court is to interfere. Mason J., with whom Gibbs J. agreed, stated the principle at p. 214 as follows:

“The settled rule, then, is that an appellate court will not disturb a primary judge’s award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages award is so inordinately low or so inordinately high as to be wholly erroneous estimate of the damage suffered.”

The test so propounded appears to accord with that laid down in Flint v. Lovell[ccclxxxiv]¹⁴. The introduction of the word “outrageous” by Barwick C.J. in Wilson v. Peisley[ccclxxxv]¹⁵ seems to make the test more stringent than that applied by the other members of the Court in that case and with the decision in Flint v. Lovell[ccclxxxvi]¹⁶ which appears to have been accepted over a long period of time as the proper test. Reading the judgment of Barwick C.J. as a whole I do not think that he was intending to introduce any new element into the well established principle. In my view the test propounded in Flint v. Lovell[ccclxxxvii]¹⁷ should be applied to this case.

N1>Whatever may be said concerning the necessity for or desirability of a trial judge disclosing the amounts of the various components of his award the fact is that the trial judge in this case did so. I think it is convenient in dealing with this appeal to consider the matter under the same headings as were used by the trial judge.

At the trial evidence was called for the respondent designed to show that were it not for the accident with its resulting diminution in the physical capacity of the respondent the poultry and photographic businesses may have prospered. I think it correct to say that the trial judge recognized that the successful operation of these businesses depended a great deal on the marriage relationship between the respondent and his wife. Not only did his wife assist in the business operation but also the premises upon which each business was carried on were occupied under licence from her father. In the result the hostility between the wife and her family on the one hand and the respondent on the other hand resulted in the termination of these licences and orders for the eviction of the respondent.

It was, I think, an important part of the respondent’s case that the collapse of the businesses was due to the accident rather than to a breakdown in the marriage relationship from some cause other than the accident. It is thus necessary to look to the findings of the trial judge on this issue. The following passage appears in his judgment:

“This brings me to the allegation that the marriage was broken up because the plaintiff suffered physical disabilities, and was unable, as he says, to satisfy his wife sexually, and also failed as a partner in the business and as a companion in the matrimonial home. I do not find that this has been proved on a balance of probabilities ...”

“I find it hard to comprehend that a modest woman, as Mrs. McCleary once seems to have been, the daughter of a rich man, married for about six years, with two, nearly three children, should have changed her whole way of life so abruptly and so completely, unless something was previously amiss. I suspect that Mrs. McCleary was beginning to get bored before the accident. The witness Bott says that she did not like the work on the poultry farm. She was the daughter of a very rich man, the plaintiff was not rich, far from it. The marriage got off to a rather tricky start. Not long before marrying, the McClearys were convicted together on a charge or charges of dishonesty. In addition, the plaintiff said, ‘unfortunately she always lived under the Chan family shadow’. The plaintiff agreed that Mr. Chan, senior, was opposed to the union and early on there were problems with this mixed marriage, which the plaintiff thought abated as the children arrived. He agreed that using hindsight it would have been better had they lived elsewhere; Rabaul is where the Chans live, and where, so it seems, their major business interests are centred.”

“I am far from satisfied that the plaintiff’s condition was the actual cause of the breakdown of the marriage, although no doubt, if the marriage was going on the rocks in any event, the plaintiff’s condition brought things to a head.”

The case made for the respondent at the trial largely centred around evidence of anticipated profits which may have been derived from the poultry and photographic businesses had the accident not intervened. However, it must be borne in mind, as counsel for the respondent submitted, that under this head the respondent is not to be compensated for loss of earnings but loss of earning capacity (Arthur Robinson (Grafton) Pty. Ltd. v. Carter[ccclxxxviii]¹⁸ per Barwick C.J.). His Honour discussed this evidence on this part of the case and made the following comment:

“What I have said about the McCleary marriage might, at first blush, seem to have largely demolished the case for the plaintiff ‘qua’ economic loss, because it depended on the marriage remaining a good marriage, and the two businesses being carried on upon Chan land. I must say that it would have been much easier for me if I had been satisfied, on a balance of probabilities, that the breakdown of the marriage stemmed from the sexual and physical problems that flowed from the accident. I say this because the loss extension figures, as I have called them, were easy to follow, and were well based. Also, as I have said, I thought that those who helped produce them tried to be reasonable and moderate. But without some help from Mrs. McCleary, without Chan land, they are really baseless, or very largely so. However, the considerable effort that has gone into mounting the economic loss claim is by no means wasted. Why do I say so? The reason is that the case mounted has shown very clearly that this plaintiff, as a whole man, was capable and energetic, keen to get on, and quite likely to get on.”

“As I have said, it would have been much easier for me to be able to more or less adopt the figures tendered. But I feel unable to do so. However they give some guide as to possible loss for a year or two, maybe two or three years after the accident, and I have the range of one to three years in mind when viewing the likelihood of the marriage folding up in any event.”

“Thus, for the uncertain period after 1970 when the marriage and the businesses, given no accident, might have subsisted, I considered the plaintiff was only entitled to token damages for economic loss.”

Although I do not think that it has been specifically stated it is implicit in his Honour’s findings that the physical and mental disabilities from which the respondent now suffers have flowed from the accident. His Honour found that the respondent “has been seriously disabled in body and mind” and that there had been no failure on his part to mitigate his damages; that the disability of the respondent was “serious indeed” but that he did not think “it will stop him working if he can get suitable work ... although I feel he will have interrupted employment, sometimes he will not want to work, sometimes he will not be able to find it” and that “his capacity to earn has been most seriously affected.”

His Honour’s findings with respect to the heading of economic loss may, I think, be summarized as follows: (1) that the respondent’s physical disability was attributable to the accident, (2) that as a result his earning potential has been seriously impaired and that he might have periods of interruption in his employment as a shipping clerk, (3) that the case put forward by the respondent based on the projected earnings from the poultry and photographic businesses was of little assistance in that the successful operation of the businesses depended upon the maintenance of the marriage relationship which broke down for reasons not including the occurrence of the accident which could not be said to have had a greater effect than to precipitate an inevitable breakdown.

As has been stated the case for the respondent under this head of damage rested heavily upon the projected estimate of earnings of the poultry and photographic businesses and the trial judge (rightly in my view) largely discarded them. However, he had regard to them as indicating that the respondent as a “whole man” was capable, energetic, keen to advance himself and quite likely to do so.

I do not understand counsel for the respondent to rely on the projected estimate of earnings as such. However, his contention is that the evidence indicated that the respondent had gained skill and experience and had shown that he had the capacity to conduct the businesses on his own account. In other words, he had a “marketable commodity” which he could not now use to his advantage by reason of the incapacity arising from the accident and that his future employment opportunities would be limited to those as an employee rather than as a self-employed businessman. It was the loss of this chance to make profits as a businessman which the respondent’s counsel submitted was to be compensated. It is also contended that the evidence of Mr. Nielsen, who for many years has conducted a poultry business in Port Moresby, indicated that there are employees in his organization who could earn $10,000.00 a year and that the respondent was now deprived of the opportunity to seek employment of this nature.

For the appellant it is argued that, as found by the trial judge, the businesses in Rabaul were likely to come to an end within a short time after the accident for reasons other than those associated with the injury to the respondent. There was no evidence that the respondent had available to him other land upon which he could commence a new poultry farming business and in the political and business conditions prevailing in the Rabaul area it might well be unlikely that he would be able to find suitable land. There was also no evidence that the respondent had plans or even an inclination to start a poultry business elsewhere in Papua New Guinea or any other place nor that he had the necessary capital to do so. Further, there was no evidence of employee opportunities in Papua New Guinea or elsewhere. So far as the evidence of Mr. Nielsen was concerned there was no evidence that the respondent would be prepared to undertake employment in Port Moresby with Mr. Nielsen or that any employment with Mr. Nielsen was in fact available to him. Upon Mr. Nielsen’s evidence there is no shortage of experienced Australian employees available to him.

Counsel for the appellant further submits that the evidence does not establish any economic loss. It is said that the respondent prior to entering into his business ventures was employed as a shipping clerk, a position to which he has now reverted. In the meantime the businesses had ceased to operate for no reason attributable to the appellant. It is also pointed out that this is not a case of a man unable to work by reason of his disabilities as in fact since the accident the respondent has worked as a shipping clerk and in fact conducted the poultry business without the aid of his wife as is shown by the income tax returns of the respondent for the financial years subsequent to the accident and up to and including the year ended 30th June, 1974 and his oral evidence on the trial. It is said that to award damages in the range mentioned by his Honour was to do so on a merely speculative basis. In this respect reliance is placed upon the decision of the Full Court of the Supreme Court of Victoria in Victorian Stevedoring Pty. Ltd. v. Farlow[ccclxxxix]¹⁹. In that case it was held that it is on the plaintiff, on the balance of probabilities, to prove the facts on which he relies as the basis of an assessment of the damage he has suffered, and it is wrong to allow the making of large awards of damages on no firmer basis than mere speculation in relation to future economic loss. Unless there is evidence upon which the jury can find it likely that he will earn less money, the most the jury can do is to compensate him to the extent of a reasonable and moderate evaluation in money of the mere chance or risk of further unemployment or less remunerative employment.

N1>Upon a consideration of the evidence it is my view that the evidence of future economic loss was slender indeed. I do not think that the matter can be put higher than that whilst engaged in the conduct of the Rabaul businesses, particularly that of the poultry business, the respondent gained experience and expertise in the running of a business of that kind. Further, it seems to me that there was no, or at least no sufficient, evidence to indicate the areas in which this experience and expertise may have been employed and no evidence of the level of remuneration which he might be expected to gain assuming he found an outlet. His Honour expressly found that between the accident and the trial the respondent was entitled only to token damages for economic loss. In my view the amount expressed by his Honour to be the appropriate range for this head of damage (which must have been very largely for future economic loss) is so inordinately high as to be a wholly erroneous estimate of the damage suffered.

The appellant contends that this should not be the subject of a separate head of damage and that if the evidence supports a finding of sexual impotence arising as a result of the accident (which the appellant denies) then it should properly be considered as an item under the head of “Pain and Suffering, Loss of Amenities”. This proposition is supported by authority (see, for example, McGregor on Damages, 13th ed., para. 1143). However, as the matter has been dealt with separately in the judgment appealed from it is convenient to consider the matter now.

His Honour found that the respondent has “a sexual problem”. He stated that he believed the respondent when he said that he cannot have sexual intercourse. This his Honour thought arose from psychosomatic rather than physical causes and that the respondent would probably recover although it might take time and treatment. Although it is not specifically stated I think it is implicit that the trial judge found that the incapacity was attributable to the accident.

These findings are challenged by counsel for the appellant on the basis that the evidence did not support a finding of impotence and attention was drawn to various aspects of the evidence. However, considering the evidence as a whole I consider that a finding of sexual incapacity on the part of the respondent was open and accordingly it is not the function of this Court to weigh the evidence and substitute its view of the facts for those preferred by the trial judge. In my view the respondent is entitled to some compensation on this aspect of the matter when considering the damages to be awarded for “Pain and Suffering, Loss of Amenities”. In assessing the quantum regard should be had to the trial judge’s finding that the incapacity would not be of a permanent character.

This also is, I think, a matter for consideration under the heading of “Pain and Suffering, Loss of Amenities”. However it is again convenient to consider it at this point. There is a difference of views expressed in the authorities as to whether this is a compensable item. The question was considered by a Full Court of the Supreme Court of Queensland in Hird v. Gibson[cccxc]²⁰. In that case the female plaintiff was injured in a motor vehicle accident. Following her injuries her marriage broke down. The trial judge found that the breakdown was in consequence of her injuries and their effect upon her and awarded her damages. The defendant appealed, inter alia, on the ground that the trial judge erred in law in awarding damages for the marriage breakdown. Hart J. reviewed the authorities and concluded that in the present state of the law the trial judge was correct in awarding damages. Williams J. came to a similar conclusion. Hanger C.J. dissented upon the basis that the evidence did not justify the trial judge’s finding of fact that the breakdown was caused by the plaintiff’s injuries.

N1>I did not understand counsel for the appellant in this case to challenge the conclusions of law reached by the majority of the Court in Hird v. Gibson[cccxci]²¹. However, he challenges the award of damages in this case on the basis that on the trial judge’s findings there was no casual connexion between the respondent’s injuries and the breakdown of his marriage and that the trial judge had so found.

N1>In this connexion it is to be noted that the trial judge specifically found that the fact that the breakdown was attributable to the respondent’s injuries had not been proved on the balance of probabilities. However, his Honour might be thought to have modified this finding in later passages in his judgment. His Honour later expressed the view that he was “far from satisfied” that the respondent’s condition was the actual cause of the marriage breakdown although “no doubt if the marriage was going on the rocks in any event the plaintiff’s condition brought things to a head.” And that “I think the damages must be small here because I incline to the view that the marriage could have been failing anyhow and might have failed ultimately.” Later he stated that he was not satisfied that the marriage would have subsisted in any event had the respondent not suffered his injuries. However, he thought it probable that the respondent’s condition plus his absence for a time in Queensland “brought things to a head”.

N1>The respondent, of course, bore the onus of proving his case on the balance of probabilities. Reading the trial judge’s various findings as a whole my view is that the most favourable construction to be placed upon them from the respondent’s point of view was that the breakdown would have occurred in any event and that the respondent’s injuries had the effect only of advancing by a short time this otherwise inevitable event. This is, I think, a conclusion of fact open upon the evidence. In my view the respondent is entitled to a small amount of compensation but that this should be taken into account when considering the damages to be awarded under the next head.

His Honour in the course of his judgment made a number of observations concerning the respondent’s injury. He found that he had “been seriously disabled in body and mind”; that it was “a bad case, one of those cruel ‘back cases’ that I often think are so much worse than the loss of limb cases”; that the respondent “is an invalid in my opinion”; that the respondent “was a lot less than a whole man”; that the respondent suffered “real pain” and that so far as the back injury was concerned it was not likely to get better.

Those observations are, of course, of a general nature and I think it is necessary, as was submitted by appellant’s counsel, to look at the evidence upon which these observations were apparently founded.

The respondent underwent a major operation to his back involving, as Dr. Toakley said, a painful post-operative period. Dr. Toakley also said that he felt that the respondent had a serious back injury although to some extent there was an aggravation of a pre-existing congenital disability. Dr. Toakley also expressed the opinion that the respondent will always have some degree of pain. He said “I think he’s got the pain and we can’t do any more”. As to the pre-existing congenital condition Dr. Toakley thought that it would have developed pain with the passage of the years although it was hard to say when, possibly when the respondent was aged forty-five to fifty-five years.

Dr. Apel, a specialist psychiatrist who gave evidence on behalf of the respondent, stated that the respondent was suffering from “a chronic low grade re-active depression” which means that he had a realization that he was not progressing medically and that this was affecting his marriage, business and personal life and brought about a mental state characterized by pessimism, hopelessness and a sense of despair. Dr. Apel also expressed the opinion that the respondent’s emotional condition may be permanent and that although treatment would help it would not cure him. A finalization of his present domestic and financial problems would also certainly help. In assessing the cause of the respondent’s depressed state he thought that it was attributable to several factors, his domestic situation, the fact that he had been denied access to his children, his court proceedings and his back pain and that the dominating factors were his diminished physical abilities and the destruction of his family situation. Dr. Apel also thought that upon completion of the legal proceedings involving his wife and the completion of this case he would become more emotionally secure. As to the respondent’s impotency Dr. Apel said that the major cause was depression, that with regard to this his marital situation could not be ignored and that he hoped “it would come good”.

The respondent in evidence stated that if sitting down a lot he has pain in the lower back in both legs and feet and at the base of the neck. He is unable to stand in one spot for long and has to keep moving. He develops a cramp in his right leg while driving a car, and has difficulty walking up and down steps. He frequently uses a walking stick. Lying in bed as his most comfortable position although he still has pain.

The evidence thus presents a picture of a man who although able to go about his daily affairs does so with pain and inconvenience. He also has his impotency problems. It seems from the medical evidence that to some extent his condition is allied with his mental state brought about by his domestic situation (particularly his inability to obtain access to his children) his litigation with his wife and this litigation and that when these difficulties are behind him his condition may well improve. The medical evidence, however, suggests that he may always suffer pain. It must also be taken into account that his congenital back condition may regardless of the accident have caused him back pain in later life.

As has been stated the trial judge considered that an award within the range of K20,000.00 to K35,000.00 was appropriate under this head. It is submitted for the appellant that an award in this area is grossly excessive particularly when considered in the light of other awards in Papua New Guinea and in Australia in cases where the disabilities suffered were said to have been of much higher degree. Comparison with other awards should be approached with considerable caution and may be used merely 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 compensation (Arthur Robinson (Grafton) Pty. Ltd. v. Carter[cccxcii]²² per Barwick C.J.). In the same case Barwick C.J. emphasized that the award must represent fair and reasonable compensation for the injuries received and that the assessment of damages for personal injuries must be essayed with moderation. In the circumstances of this case I am of the opinion that the award under this head is so excessive as to warrant the interference of this Court.

Further, considered as a global amount I think that the award, having regard to the extent of the damage proved by the respondent, is so excessive as to warrant interference.

The notice of appeal sought the leave of the Court to challenge two findings of fact made by his Honour. The first relates to the finding that the respondent through the accident lost the capacity to earn money as a photographer. As to this his Honour found that the photography business “would have been no more than a sideline producing no more than a bit of useful pin money”. It is thus apparent that the loss of earning capacity from this source assumed very minor importance in the trial judge’s assessment which largely centred around the poultry business. The second finding challenged related to the finding of impotency. As has already been stated earlier in this judgment I consider his finding was reasonably open upon the evidence. I would refuse each application.

In all the circumstances I do not consider it appropriate that there be a retrial. In my view this Court should exercise its powers under s. 15 (c) of the Supreme Court Act and substitute a verdict for the respondent in the total sum of K45,000.00.

Leave to appeal on question of fact refused. Appeal allowed. Judgment of the National Court varied by substituting the sum of K45,000 for the sum of K82,000. The respondent to pay the costs of the appeal.

[ccclxxi] [1935] 1 K.B. 354 at p. 360.

[ccclxxii][1952] A.C. 601.

[ccclxxiii] [1951] A.C. 601 at p. 613.

[ccclxxiv] [1935] 1 K.B. 354 at p. 360.

[ccclxxv](1976) 50 A.L.J.R. 207.

[ccclxxvi][1975] P.N.G.L.R. 262.

[ccclxxvii][1963] VicRp 80; [1963] V.R. 594 at p. 598.

[ccclxxviii][1975] P.N.G.L.R. 262.

[ccclxxix](1968-1970) 122 C.L.R. 649.

[ccclxxx](1976) 50 A.L.J.R. 207.

[ccclxxxi] (1976) 50 A.L.J.R. 207 at p. 209.

[ccclxxxii](1976) 50 A.L.J.R. 207.