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Kidu v Port Moresby Freezing Company Ltd [1967-68] PNGLR 466 (18 November 1968)

Papua New Guinea Law Reports - 1967-68

[1967-68] PNGLR 466 - Gaudi-Kidu v Port Moresby Freezing Co. Ltd.

[1967-68] PNGLR 466

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GAUDI KIDU

THE PORT MORESBY FREEZING COMPANY LIMITED AND ANOTHER

Port Moresby

Frost J

23-24 September 1968

30 October 1968

18 November 1968

NEGLIGENCE - Joint tortfeasors - Contribution - Limitations - Law Reform (Miscellaneous Provisions) Ordinance 1962, s. 20(4)^*[dlxxxi]¹.

NEGLIGENCE - Reasonable foreseeability of risk - Seat projecting from motor truck.

DAMAGES - Personal injuries - Loss of leg - Quantum - Principles referred to.

Section 20(4) of the Law Reform (Miscellaneous Provisions) Ordinance, 1962 is of general application and operates to bar all claims for contribution at the end of twelve months from the receipt by the party seeking contribution of notice in writing of the claim by the original plaintiff whether or not there is some other statutory provision as to notices of action or prescribing the time within which an action may be brought.

Allman v. Daly: Country Roads Board (Third Party)[1959] VicRp 26; , [1959] V.R. 175, followed; Brambles Constructions Pty. Ltd. v. Helmers [1966] HCA 3; (1966), 114 C.L.R. 213, referred to.

Semble:

The principles upon which the Court fixes the amount of contribution recoverable from a joint tortfeasor under s. 20(2) of the Law Reform (Miscellaneous Provisions) Ordinance 1962 are the same as those applicable in the case of apportionment of liability between a plaintiff and a defendant found guilty of contributory negligence.

Pennington v. Norris [1956] HCA 26; (1956), 96 C.L.R. 10, at p. 16, applied.

The plaintiff, a school boy aged thirteen, received injuries, which resulted in the amputation of his right leg, while he was sitting on a seat on the back of a moving truck owned by the second defendant and driven by its servant. The end of the seat which projected half an inch over the side of the truck and was not firmly fixed in position was struck a glancing blow by a vehicle owned by the first defendant driven by its servant over the centre of the road.

Held:

That the provision of such a seat constituted a real risk which the second defendant’s servants and agents ought to have known about and guarded against and a reasonable man careful of the safety of the passengers could not have thought it right to neglect such risk.

Donoghue v. Stevenson, [1932] A.C. 562; Fardon v. Harcourt-Rivington (1932), 146 L.T. 391; Bolton v. Stone[1951] UKHL 2; , [1951] A.C. 850; Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty.[1966] UKPC 1; , [1967] 1 A.C. 617; Grant v. Sun Shipping Co. Ltd., [1948] A.C. 549; Chapman v. Hearse [1961] HCA 46; (1961), 106 C.L.R. 112; Nesterczuk v. Mortimore [1965] HCA 60; (1965), 115 C.L.R. 140, referred to.

Principles of assessment of general damages considered—Teubner v. Humble [1963] HCA 11; (1963), 108 C.L.R. 491; Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1968] HCA 9; (1968), 41 A.L.J.R. 327; Skelton v. Collins [1966] HCA 14; (1966), 115 C.L.R. 94; The Director of Native Affairs v. Green, [1964] P. & N.G.L.R. 24; McCarthy v. The Public Curator, [1964] P. & N.G.L.R. 134; Iapidik v. Green and Towinanana, [1964] P. & N.G.L.R. 178, referred to.

Action.

Gaudi Kidu, an infant by his next friend Buri Kidu, brought an action in negligence against The Port Moresby Freezing Co. Ltd. and the Administration of the Territory of Papua and New Guinea claiming damages for personal injuries sustained on 21st October, 1966, as a result of a collision near Port Moresby between a tipper truck driven by an employee of the first defendant and a truck driven by an employee of the second defendant. Each defendant denied liability and gave notice to the other defendant claiming contribution under s. 20 of the Law Reform (Miscellaneous Provisions) Ordinance 1962. Both notices were given more than twelve months after service of the plaintiff’s writ. The relevant facts appear in the reasons hereafter.

Counsel:

P. Luke, for the plaintiff.

Reitano, for the first defendant.

Kinna, for the second defendant.

Cur. adv. vult.

18 November 1968

FROST J: This is an action for damages for personal injuries suffered by the plaintiff, a school boy of thirteen years, on 21st October, 1966, as a result of a collision on the Pari Road near Port Moresby between a tipper truck driven by an employee of the first defendant and a truck driven by an employee of the second defendant. Each defendant has denied that the collision and damage was caused by any negligence on its part.

On the morning of the day in question, the second defendant’s truck had been sent to Pari Village to pick up some school children and carry them to school at Boroko. The plaintiff was one of about sixteen children who were travelling on the back of the truck. It was an open tray body truck fitted with short drop sides and back. Three wooden seats were fitted across the vehicle, resting on and protruding slightly over the sides, two near the front and one at least two feet from the back, on which the plaintiff was sitting. The method of construction of these seats was one of the issues in this case, for the plaintiff alleged that they had been negligently installed by the second defendant and unsafe, and one of the causes of his injuries

The accident occurred on a straight flat stretch of gravel road, between Pari Village and Port Moresby. As the Administration truck was proceeding to Port Moresby it passed the tipper truck which was travelling in the opposite direction and a collision occurred when the protruding edge of the rear seat, upon which the plaintiff was sitting, and also part of the off side of the truck, were struck by the side of the tipper truck. Although it was only a scrape or glancing blow, and there was no damage to either vehicle, other than that the seat on the truck was dislodged, it had tragic consequences. The seat was broken down the length, and one of the planks was broken across the width causing the plaintiff to be thrown to the floor of the truck, his right leg became pinned underneath a piece of broken timber and he suffered injuries which necessitated the amputation of his leg below the knee.

The plaintiff’s case against the first defendant is that the driver of the tipper truck was negligent in that he drove on the wrong side of the road, and this is the first issue for me to determine. The plaintiff himself did not see the tipper truck before the accident, and so was unable to give evidence as to what part of the road the truck was travelling on. His counsel called a school teacher, Puka Vagi, who was seated on the tray of the truck on the off side against the side board, facing the front. His account of the accident was that he saw the tipper truck coming towards Pari, it was raising dust, be did not know how far away it was, but it was a long way off. The tipper truck left its correct side of the road and was running on the centre. The tipper truck bumped the truck at the back, and caused the seat to break into two pieces. The truck was on its correct side, and could not have gone further to the left. In cross-examination by counsel for the second defendant, the witness said that when the tipper truck started to come across the road further it was very close to the truck. He did not know how far on the incorrect side of the road the tipper truck was, but its wheels were well over the centre of the road. Neither vehicle stopped after the accident. The girls on the truck knocked on the cabin, and the driver then stopped. The witness then examined the truck and noticed red marks of the same colour as the tipper truck on the edge of the seat and on the truck near where the seat was.

The first defendant called John Bio, the driver of the tipper truck. There was one passenger on the tipper truck, but he was at the back, and he was not called as a witness. Bio’s evidence was exactly the opposite to Vagi’s. He said that it was the tipper truck which was on its left, and the truck came over from the middle of the road, and Bio had to swerve to avoid it. Bio stated that he saw the truck coming in the middle of the road, it was then a long way away, there was no space for the tipper truck to pass through, the truck came very close so he turned his wheels to the left and went as far as the grass on the side of the road. He said the tipper truck was on its correct side of the road, and he denied that it was in the middle of the road.

The first defendant also called Gordon Edward Mousley, a loss assessor from Port Moresby to give evidence as to the road and the vehicles. He stated that the road was 18’10 3/4” wide from shoulder to shoulder, and reasonably straight. There was a small gutter on the left hand side going towards the village about three feet in width. It was 2” or 3” deep and filled with sand, almost at road level, but it would be useable for a motor vehicle if necessary to travel on. There was a slight down hill grade from Port Moresby. The tipper truck was about 16’ long and the tray 7’5” wide, and 7’ from the ground. The truck was 11’11” long, and the cabin 8’ long making it 19’11” overall, and the tray was 7’7” wide. The sides were 1’4” high. On the side of the tray there were shackle pins which protruded about half an inch and which were used to fix the sides and back in position. There was of course, no centre line on the road. If the two vehicles passed each other on the road they would occupy 15’ of road space, and if for example each vehicle was a foot from the edge of the road there would be less than two feet between the vehicles as they passed each other. However the tipper truck could in an emergency have travelled, for a short distance at any rate, on the gutter’s surface to the left of the road.

The plaintiff’s case was supported by the driver of the truck John Yapli who was called by the second defendant. He said the accident happened at about 7.15 in the morning which was fine. He saw the tipper truck come down the hill and it was in the middle of the road. He was on the left hand side of the road, and when he saw the truck coming straight at him, he was afraid for the school children so he turned to the left and then straightened it up. The tipper truck came very close and that was why he turned the wheels to the left. He said he was about four to six inches from the edge of the road when he turned his wheels which got on to the grass and then he turned it back to the road again.

A school boy, Ovia Tobora also gave evidence that shortly before the accident, the truck was on its correct side of the road, but he did not see the tipper truck and I was not assisted by his evidence.

Mr. Reitano submitted that on this conflict of evidence, I could not be satisfied on the balance of probabilities which vehicle was being driven on its correct side, and as there was no other evidence from which I could infer that the collision occurred in or near the centre of the road, and thus enable me to find that each driver was negligent in driving too close to the centre of the road, the plaintiff had failed to establish negligence as against the first defendant. He relied strongly on Nesterczuk v. Mortimore[dlxxxii]². That was a case of a head-on collision at night.

“Both vehicles had their lights on and each driver saw the other vehicle approaching. Each said in his evidence that he was on his correct side of the road and that as they approached one another the other vehicle was on its correct side. Each said that he held to his course on his correct side of the road and that the other vehicle must have swerved to its right although neither could say that he had seen the other swerve. The vehicles struck one another a glancing blow. Apart from the evidence of the parties, there was nothing to indicate whereabouts in the road the collision had occurred and, in these circumstances, the learned trial judge was unable to say that the account given by one party was more probably correct than that given by the other and for this reason held that neither had established his case that the other had been negligent”[dlxxxiii]³.

The High Court in dismissing the appeal, held that in the absence of evidence that the collision had occurred in the centre of the road, no inference could be drawn that both drivers were to blame, rather than one.

Now although each of the native witnesses spoke English—John Yapli, however, found it necessary to give his evidence in Pidgin through an interpreter—the account given by each witness was somewhat bald and there was an absence of evidence as to speeds and distances which is a usual feature in the trial of running down actions in Australia. Indeed the estimates given by native witnesses as to such matters are not usually reliable. Having heard the witnesses and from their demeanour in the witness box, I was impressed by the school teacher Vagi and the truck driver John Yapli. Each I consider was truthfully describing the movements of the vehicles as he actually saw them, and I accept their evidence to be true. I was not impressed by John Bio, the tipper truck driver.

Accordingly I do not find myself in the position of being unable to form any opinion at all as to whether the account given by one driver was more probably correct than that given by the other, which was the position of the learned trial Judge in Nesterczuk v. Mortimore[dlxxxiv]⁴. On the balance of probabilities I am satisfied that it was the tipper truck which came over on its wrong side of the road when it was close to the truck, that the truck was then on its correct side of the road and Yapli moved as far left as was reasonably practicable to avoid the tipper truck.

Accordingly I find that there was negligence on the part of the driver of the first defendant for which that defendant is responsible on the pleadings, that such negligence caused the collision of the two vehicles and was a direct cause of the seat being dislodged and broken and thus of the plaintiff’s injuries.

The next issue is whether the plaintiff has satisfied me that there was negligence on the part of the second defendant. As I have said, I consider that the sole blame for the actual collision between the two vehicles rests on the first defendant’s driver. On the evidence of the witnesses, Vagi and Yapli, which I accept, this was not a case of two vehicles both travelling too close to the centre of the road, and therefore of both drivers being at fault. Yapli was travelling on his correct side of the road, and in moving as far over as he could when the tipper truck came close to him, he did all he could to avoid the collision. Indeed the plaintiff grounded his case against the second defendant on its failure to provide safe seating for the child passengers. Mr. Luke submitted that the seats were dangerous in that the edges protruded over the side of the truck, and as they were not fixed in position, nor supported by vertical legs, even a glancing blow was sufficient to dislodge the seat so that there was a real risk, as in fact happened, that with the weight of the children upon the seat, once it was dislodged it would be broken and thus cause injury.

To meet this case, the second defendant called Mr. Hodges, who was transport operations supervisor employed by the Administration at the time of the accident. He said that the seats were made in 1965 for the temporary use of a large number of Navy personnel who were visiting Port Moresby. Afterwards some of the seats continued to be used for the transport of passengers including school children.

They were made of two pieces of hardwood, 4” x 2” cleated together and laid across the lip or flange at the top of the truck sides, which was about two inches wide. For purposes of stability, the seats were so constructed as to protrude over the side about 1/2 inch (which was about the diameter of the shackle pins). Apparently the Administration officers considered the seats quite safe so long as they did not protrude further than the shackle pins. But the fact that the shackle pins protruded the same distance could not protect the edge of the seat, some feet away, from a glancing blow by a swerving vehicle, such as happened in this case. The only means adopted to give the seats stability were two cleats nailed underneath the planks which kept the planks together and which were so placed that when the seats were laid on top of the lips of the truck sides the cleats fitted closely against each side. But there was nothing else to prevent the seats sliding along the sides, other than the weight of those sitting on the seats. Mr. Hodges admitted that the seats could be lifted up by hand, and moved along the top of the sides. Two other cleats were spaced across to the bottom of the seats, but there was no other vertical support for the seats. The seats had no backs, and no side rail to protect those sitting near the side of the truck.

When one pictures this moving truck, with the children perched about 8’ above the ground, upon these insecure forms protruding over the sides, albeit half an inch only, and unprotected at the sides or back, I can come to no other conclusion but that the truck and the seats were dangerous and unsafe for the carriage of passengers. But the question is whether there was negligence in law on the part of the second defendant. Plainly that defendant owed a duty to the plaintiff, as a passenger on the truck, to take reasonable care to avoid acts or omissions which it could reasonably foresee would be likely to injure the plaintiff: Donoghue v. Stevenson[dlxxxv]⁵. Thus it was obliged to take reasonable care to provide a vehicle safe for the carriage of passengers. Mr. Kinna’s argument was that having regard to the slight protrusion of the seat, the risk of injury was not reasonably foreseeable. He relied on a passage from Salmond on Torts, 14th ed. (1965), p. 302:

“The general principle is that before negligence can be established it must be shown not only that the event was foreseeable but also that there is a reasonable likelihood of injury. . . . So on the one hand, it is clear that ‘if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions . . . . People must guard against reasonable probabilities, but they are not bound to guard against fantastic possibilities.’“: Fardon v. Harcourt-Rivington[dlxxxvi]⁶.

Mr. Kinna also relied on the principle of the well-known case of Bolton v. Stone[dlxxxvii]⁷ “the cricket ball case”. As on the evidence there had been no prior accident during the year or so the seats had been in use, he submitted that it was not reasonably foreseeable that another vehicle being driven on its incorrect side of the road would be driven so close to the truck as to strike a seat protruding only half an inch, and yet not close enough to damage the truck. I take his argument to be that such minor collisions were not reasonably foreseeable, or any collisions other than those of such force to the back of the truck that any consequential injury to passengers would have occurred irrespective of the unsafe installation of the seats which therefore was not a causative factor. Thus he submitted it was not negligent for the Administration driver to drive such a vehicle, the evidence being that it was on its correct side of the road.

However Bolton v. Stone[dlxxxviii]⁸ has been explained by the Privy Council in Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty.[dlxxxix]⁹ and I take as the statement of principle which binds me upon this matter, the following passage from the judgment delivered by Lord Reid:

“In their Lordships’ judgment Bolton v. Stone[dxc]¹⁰ did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognize and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it”[dxci]¹¹.

Further, it cannot be said, “that everyone is entitled to assume, in all circumstances, that other persons will be careful. On the contrary a prudent man will guard against the possible negligence of others when experience shows such negligence to be common”: Grant v. Sun Shipping Co. Ltd.[dxcii]¹², see also Chapman v. Hearse[dxciii]¹³.

In my opinion, this argument cannot succeed. Having regard to the density of traffic about Port Moresby, which is certainly as great as any town of comparable size in Australia, and the many narrow roads, in my opinion, there was a real risk, which the defendant’s servants and agents ought to have known about and guarded against that this truck would encounter some collision on the roadway which would be sufficient to cause this highly insecure and unprotected seat to be dislodged and thus a passenger to be injured. If it is necessary for me to descend to such particularity, the ambit of this real risk included minor collisions of the nature of a glancing blow caused by another vehicle being driven on its wrong side of the roadway. The plaintiff has satisfied me on the balance of probabilities that in permitting this truck fitted in the manner it was for seating the passengers, and for its driver to drive it on the road in that condition, the second defendant was negligent for no reasonable man careful of the safety of the passengers, would have thought it right to neglect the risk of injury.

Accordingly the plaintiff is entitled to judgment against both defendants.

The next issue is that of damages. The blow to the knee caused a fractured fibula associated with injuries to the ligaments of the knee, as it was diagnosed when the plaintiff was taken to hospital immediately after the accident. His leg was then placed in plaster. He was allowed to go home, but five days later it came to the notice of the surgeon at the hospital, Mr. Reid, that the leg was swollen and warm, and the plaintiff’s temperature was raised. He was re-admitted to hospital, two operations were then carried out to determine whether first the tibia bone and second the fibula bone was infected, but nothing was found. However, Mr. Reid was unable to find any pulsation in the foot—which he felt was ominous—so a third operation was carried out which revealed that the femoral and popliteal arteries were in spasm and constricted and the blood supply to the foot interrupted. Treatment was administered to revive the pulsation of the vessels but without success. Unfortunately the leg became gangrenous, and it became necessary to amputate the leg. A below-knee amputation was accordingly carried out on 9th November, 1966. It was the surgeon’s opinion that the vessels in the knee had been injured by the original trauma to the leg, and this led directly to the gangrenous condition, the amputation being the inevitable sequel.

Naturally the operations caused the plaintiff pain in spite of the use of pain-killing drugs. A fourth operation was performed to remove a piece of bone from the stump of the right leg. The plaintiff was taught to use crutches, and he was finally discharged from hospital on 28th January, 1967. He then went to Lae for an artificial limb to be fitted, but that was not satisfactory, and it was necessary for him to go to Brisbane at the end of 1967 for the fitting of a new artificial limb. At present he has some blisters on the stump but these should soon clear up.

The plaintiff has thus suffered in his early youth this grave disability of the loss of a leg which he must bear throughout his life.

The plaintiff is entitled to receive his special damages which are agreed at the sum of $240.50. This sum includes the cost of an artificial limb $101.50, which will need to be renewed over the years. No evidence was led as to the period which such a limb normally lasts. The inner stocking lasts only six months, but again there is no evidence of the cost. So there is very little evidence on which to make some estimate of the sum to be allowed for the cost of future artificial limbs and stockings, which is to be included in the award of general damages.

The heads of general damage for which the plaintiff is to be compensated are, of course, pain and suffering, past and future, loss of amenities of life, and any diminished loss of earning capacity. The loss of his leg has caused a tragedy in the boy’s life. A village boy, he was one of a group of gifted Papuan children who were taken from the Primary T School and admitted to the Coronation Primary A School. Primary ‘A’ Schools are attended by children whose home language is English. Mr. Rogers, the headmaster of the school was called as a witness. He stated that in the 2 1/2 years he was at the school, the plaintiff made marked improvement, so much so that when he left the school, in most of his subjects, he was well above the normal standard for a European child. He excelled at football and cricket, and was a member of the Rugby League and soccer teams which reached the finals. He gained much from his excellence at sports, which proved to be a means of integrating outside the class room and gave him confidence in his school studies. He was able to do the final exams in 1966 after the accident, but, although his results were very good, Mr. Rogers felt that he was capable of having done even better. The boy also has a brother studying final year law at Queensland University and this fired him with ambition, in his case, to study medicine. Mr. Rogers considered that on his primary school results he would have a good chance of undertaking a University course.

His enrolment at the Port Moresby High School was delayed until April, 1967, and it was a different boy who then began his secondary education. The future has changed from that of the active confident boy, popular and respected because of his prowess at sport. Now we see him, to cover his artificial leg, dressed in long trousers—the only one so dressed at the school —in the role of an onlooker, as the other children carry on the life of the school. He was given special tuition, because of his late arrival, but instead of being placed in the top third of the Form I pupils, as his primary school results would have justified, he could do no better than remain in the lowest of the three classes. In the 1967 examinations he was placed 75 out of 105 students. This year he was near the top of his class, so he has been promoted to credit level. But Mr. Wells, the headmaster, considers it unlikely he will reach the advanced level, and this gives him very little chance of matriculating, or going beyond Form IV. Mr. Wells considers that the loss of the limb would have a real effect on the plaintiff’s future. Other Papuan children are able to adjust by excelling at sport and taking a full part in the life of the school, but the plaintiff will never be able to take a full part in these activities. He is self-conscious about his disability; he is the only one at the school who is physically handicapped. Mr. Wells stated that the normal Papuan child who enters Form III and Form IV finds it very difficult to continue at the standard shown at earlier levels, and indeed to continue past Form IV, but the plaintiff was one of a carefully selected group, who had been under a skilled teacher at the Primary A School, of whom better results were expected. Mr. Wells feels because of his injury the plaintiff is now back in the middle of the field, as it were, so that with his physical disabilities, the outlook is not very good for him.

Now it is plain that the plaintiff suffered pain as a result of the injuries, the operations at the hospital, and in his adjustment to wearing the artificial leg. Fortunately, on the medical evidence, he should suffer little pain or discomfort in the future. There has been a grave impairment of his capacity to enjoy life, particularly sport, in which he was so active and proficient, and of the mere ability to walk about, or engage in the games in the village. In one so young this is a particularly severe deprivation, because he will miss all the sport and activity which plays such a large part of youth and young manhood. There is the daily use of the artificial limb, there is the mental distress which he must feel as a permanent cripple. These matters require a substantial award of damages. But I did not understand Mr. Luke to contend that a case of future economic loss had been made out. Indeed, although his prospects prior to the accident were bright, the plaintiff’s case cannot be put so high as involving the loss of a reasonable likelihood that he would have succeeded in matriculating or entering the Medical College and then going on to qualify as a doctor.

Despite the high hopes for him, he may not have gone past Form IV. Indeed he may still reach this standard and go even further. But it is on this aspect of the case that the boy’s real tragedy appears. Before the accident it seemed that he had an excellent chance of going on to the University or achieving his ambition of becoming a doctor. But he needed all his natural advantages; not only has he lost them but he is left with a physical disability. So his prospects in life have been greatly reduced. As I see it, what he has suffered in this respect is a serious impairment of his capacity to make the most of his educational opportunities for which he is to be compensated for under the heading of “loss of amenities”, but so that there is no duplication with the loss of other amenities, such as inability to play sport: Teubner v. Humble[dxciv]¹⁴.

In the final result “the amount to be awarded for general damages is a single amount that is appropriate in the circumstances of the case, and . . . it is not the sum of rigidly separate and independent items”: Teubner v. Humble[dxcv]¹⁵. A perfect compensation is not to be attempted; the plaintiff is entitled to a fair and reasonable compensation which should be assessed with moderation and the position of the defendant not ignored or left out of sight: Arthur Robinson (Grafton) Pty. Ltd. v. Carter[dxcvi]¹⁶. Further the background against which these principles operate is not the same in the Territory as in England or Australia. I have to take into account the local circumstances existing in this community especially the different rates of wages cf. Skelton v. Collins[dxcvii]¹⁷: and see also: The Director of Native Affairs v. Green[dxcviii]¹⁸; McCarthy v. The Public Curator[dxcix]¹⁹ and Iapidik v. Green and Towinanana[dc]²⁰.

I have reached the conclusion that the sum to be awarded for general damages is $8,000.00 so that, including the special damages, the total award is $8,240.50.

The remaining question is the apportionment of the damages between the two defendants. Both defendants gave notices claiming contribution. Both Mr. Kinna and Mr. Reitano asked me to apportion liability as between the defendants if I reached the conclusion that both defendants were liable in damages. But Mr. Kinna drew to my attention that, as appears from the documents filed in the Court, each notice was given more than twelve months after the service of the writ, and the question has accordingly arisen whether by reason of the provisions of the Law Reform (Miscellaneous Provisions) Ordinance 1962, s. 20(4), each defendant’s right to contribution has been extinguished.

The Territory legislation conferring upon a tortfeasor liable in respect of damage suffered by a person as a result of a tort the right to recover contribution from any other tortfeasor who is, or would if sued have been liable in respect of the same damage, (s. 20(1)(c)), follows the form of the original English legislation, but the provisions of s. 20(4) are different from the English legislation and that of the Australian States.

The subsection is as follows:

“Notwithstanding any provision in any law in force in the Territory or a part of the Territory contained requiring notice to be given before action or prescribing the time within which an action may be brought, proceedings for contribution under this section may, although no such notice has been given or that time has expired, be commenced at any time within twelve months after the receipt by the party seeking the contribution of notice in writing of the claim of the original plaintiff against him in respect of the damage or within twelve months after settlement of the claim, whichever first occurs, but at the expiry of that period of twelve months the right to recover contribution is extinguished.”

The subsection follows the same form as the Victorian provision, except that the latter provides, in my opinion, more conveniently, for the action “to be commenced at any time within twelve months after the writ in the original action was served on the party seeking to recover ... contribution ...” (Wrongs Tortfeasors Act 1949, s. 2(4)).

Mr. Kinna argued that s. 20(4) did not provide a general limitation of time applicable to all claims for contribution under the Act, but was intended to deal only with cases where there was a special statutory provision as to notices of action or as to the time in which the defendant might be sued, so that it did not apply to the present case. He very properly drew my attention to the case of Allman v. Daly; Country Roads Board (Third Party)[dci]²¹ where Dean J. rejected this interpretation of the Victorian sections I have referred to. In the meantime the High Court of Australia has considered the legislation and has followed the English authorities referred to by Dean J. in his consideration of the history of the legislation: B rambles Constructions Pty. Ltd. v. Helmers[dcii]²². I respectfully agree with Dean J., and I propose to follow his decision and hold that the Territory subsection is of general application and operates to bar all claims for contribution at the end of twelve months from the receipt by the party seeking contribution of notice in writing of the claim by the original plaintiff.

Both Mr. Kinna and Mr. Reitano then referred me to the provisions of Order 17 of The Rules of the Supreme Court (Queensland, adopted) as enabling me to try the issue of liability as between the defendants, but the liability of one or both of the defendants to contribution for the trial of which Order 17 provides the procedure, must depend upon the provisions of Pt VIII of the Law Reform (Miscellaneous Provisions) Ordinance, including s. 20(4).

Counsel for each defendant accepted the view that if I reached the conclusion that s. 20(4) applied, as I have, then the claims to contribution must fail, for plainly service of the writ was receipt of notice in writing of the claim.

However, in case this issue is taken on appeal, and an appellate Court takes a different view of the legislation, it may be convenient if I indicate upon what proportion, in my opinion, the damages should be apportioned if the claims had been made within time. The Ordinance provides that in any proceedings for contribution, the amount of the contribution recoverable from a person shall be such as is found by the Court to be just and equitable, having regard to the extent of that person’s responsibility for damage: (s. 20(2)). The same principles would seem to be applicable as in the case of apportionment between plaintiff and a defendant found guilty of contributory negligence: Law Reform (Miscellaneous Provisions) Ordinance, s. 22(1). What is involved is accordingly “a comparison of culpability. By ‘culpability’ we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man”: Pennington v. Norris[dciii]²³. Whilst in my opinion, the negligence of the first defendant in driving on the wrong side of the road was more culpable than that of the second defendant, the failure of the second defendant to provide safe seating for its passengers was not a minor default, and accordingly I would have apportioned the liability 75% as against the first defendant, and 25% against the second defendant.

Before leaving this case I should draw attention to the provision contained in s. 20(4) (supra) the effect of which is that in all claims for contribution, time is to run from the receipt by the party seeking contribution of notice in writing of the claim of the original plaintiff. Thus usually time will commence to run before the action is commenced. This seems to me neither necessary nor convenient. Consideration should be given to amending the section by substituting the Victorian provision that time is to run from service of the Writ by the original plaintiff, except, of course, in the case of settlements, and together with any consequential amendments. In England the matter is provided for by the Limitation Act 1963, s. 4, but see the comments on this Section in Salmond on Torts, 14th ed. (1965), pp. 635-638.

Judgment for the plaintiff against both defendants in the sum of $8,240.50 together with costs to be taxed.

Solicitor for the plaintiff: W. A. Lalor, Public Solicitor.

Solicitors for the first defendant: Norman White & Reitano.

Solicitor for the second defendant: S. H. Johnson, Crown Solicitor.

[dlxxxi]* Section 20(4) of the Law Reform (Miscellaneous Provisions) Ordinance 1962 provides: “Notwithstanding any provision in any law in force in the Territory or a part of the Territory contained requiring notice to be given before action or prescribing the time within which an action may be brought, proceedings for contribution under this section may, although no such notice has been given or that the time has expired, be commenced at any time within twelve months after the receipt by the party seeking the contribution of notice in writing of the claim of the original plaintiff against him in respect of the damage or within twelve months after settlement of the claim, whichever first occurs, but at the expiry of that period of twelve months the right to recover contribution is extinguished.”

[dlxxxii](1965) 115 C.L.R. 140.

[dlxxxiii](1965) 115 C.L.R., at pp. 154, 155.

[dlxxxiv](1965) 115 C.L.R. 140.

[dlxxxv][1932] A.C. 562, per Lord Atkin, at p. 580.

[dlxxxvi] (1932) 146 L.T. 391, at p. 392, per Lord Dunedin.

[dlxxxvii][1951] A.C. 850.

[dlxxxviii][1951] A.C. 850.

[dlxxxix][1967] 1 A.C. 617.

[dxc][1951] A.C. 850.

[dxci][1967] 1 A.C., at pp. 642, 643.

[dxcii] [1948] A.C. 549, at p. 567, per Lord Du Parcq.

[dxciii][1961] HCA 46; (1961) 106 C.L.R. 112, at pp. 121-122, 125.