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Smerdon v Raquel [1973] PNGLR 313 (27 June 1973)

[1973] PNGLR 313

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

JOHN ALAN SMERDON

V

TALI KAIPENG RAQUEL

Port Moresby
Minogue CJ Frost SPJ Clarkson J

27-28 March 1973
27 June 1973

APPEAL - Damages - General damages - Personal injury - Assessment by judge - Review by appellate court - Grounds for review.

DAMAGES - General damages - Personal injury - Assessment by judge - Review by appellate court - Grounds for review.

In order to justify a review by an appellate court of an assessment of damages for personal injuries an appellant must satisfy the court that the trial 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.

Miller v. Jennings [1954] HCA 65; (1954), 92 C.L.R. 190, at p. 196 followed; O’Brien v. McKean [1968] HCA 58; (1968), 42 A.L.JR. 223 and Faulkner v. Keffalinos (1971), 45 A.L.JR. 80, at p. 87 referred to.

As a result of a motor vehicle accident caused by the negligence of S., R. an ungraded teacher who was then 37 or 38 years old and had been teaching since approximately 1951, suffered substantial and permanent injuries including complete and permanent paralysis of the left arm rendering it useless, and a “closed head” injury leaving him with what the trial judge described as a “permanent impairment of intellect, a disturbance of thinking processes and an emotional overlay which in combination with his physical injury has had the result that he will never be able to carry out his teaching work again”. The trial judge assessed damages at $27,540.00 including a figure of $19,000.00 for future economic loss, which latter sum was calculated on the basis that R. had suffered a total and permanent loss of earning capacity. There was evidence before the trial judge that R. was righthanded and from which it could be said that R. was still in good physical health, able to read and write and had experience in the sort of administrative work ordinarily associated with school teaching.

Held

(1) ¦t It appeared that the trial judge was allowed so to misapprehend tcts te ass damageamages on s on the basis that the plhe plaintiff’s total earning capacity had been destroyed when this had not been established; accordingly it would be proper to reduce the award of general damages to $5,000.00, thereby arriving at a total sum of $22,540.00 which could be considered fair and reasonable compensation for the injuries received and the disabilities caused.

Methods of calculation of damages for personal injuries, awards made, in other jurisdictions, and necessity to give weight to “current general ideas of fairness and moderation”, referred to by Clarkson J

Appeal

This was an appeal against a judgment given in the Supreme Court on 13th October, 1972, whereby the respondent (plaintiff) was awarded $27,540.00 damages for personal injuries suffered in a motor vehicle accident. The only ground of appeal argued before the Full Court was that the damages awarded were excessive. Relevant facts are to be found in the reasons for judgment of Clarkson J

Counsel
C. W. Pincus, for the appellant.
K. F. O’Leary, for the respondent.
Cur. adv. vult.

27 June 1973

MINOGUE CJ: I have had the advantage of reading the reasons for judgment of Frost SPJ and Clarkson J in this case. As would be expected I have no cavil with the statements of principle contained therein.

Had I been able to come to the conclusion that there was evidence to support the finding of the learned trial judge that the respondent would never be able to work again, i.e., to work in some remunerative employment (although for my own part I would have thought his assessment of damages in so far as it was based on future economic loss to have been rather high) I would not think it was so high that an appellate court should interfere. However, I cannot see that there was such evidence. The respondent himself was not asked about nor did he state his inability to work at any occupation nor can I see anything in his evidence from which such an inability could be inferred. The fact seems to be that his attention was not directed to the possibility of doing clerical work (lowly-paid or otherwise) either in or out of the Department of Education, nor was that of the witnesses Kenna or Neitz from that department. The learned trial judge does not himself specifically find that the respondent would never work again. What he said was:

“I am satisfied that in the accident the plaintiff suffered some cerebral injury which has left him with permanent impairment of intellect, a disturbance of thinking processes and an emotional overlay which in combination with his physical injury has had the result that he will never be able to carry out his teaching work again.”

However, he made his award on the basis of the respondent’s not being able to work at anything. On the evidence, such as it was, I think he fell into error.

Earlier he had said that Dr. Robson, a specialist surgeon who examined the respondent in December 1971 (the trial being in September 1972) observed that the left arm had almost negligible function present and he agreed in the patient’s opinion of himself that the patient would probably not work again. I cannot find that opinion expressed by the respondent. The doctor did not give evidence and it appears that a report of his was tendered without objection. The report in my view is directed to his ability to teach again and the doctor’s concurrence with the expression of the “Education people” that he should not be expected to return to work seems to me to refer to the work of teaching. The evidence of Mr. Lumsden, the psychologist, also seems to me to be equivocal and to be directed to the respondent’s work as a teacher.

For my own part in the rapidly changing and developing economic and social situation in Papua New Guinea without some evidence on this aspect I cannot conclude that a primary school teacher of thirty-nine or forty who is left in the condition specifically found by the learned trial judge is incapable of earning some remuneration. As it is only in this regard that I am of opinion that his Honour was wrong I have found myself in some difficulty in coming to a conclusion as to what would be a proper reduction to make in the damages awarded. After anxious reflection I have come to the view that $5,000 is such a reduction.

The appeal so far as it related to his Honour’s finding of no contributory negligence and to the refusal of leave to amend the statement of claim was not pursued and to that extent I would dismiss it. I would allow the appeal against the assessment of damages and vary the judgment below by substituting the sum of $22,540 for the sum of $27,540 therein awarded.

FROST SPJ: As I have had the advantage of reading the judgment of Clarkson J it is unnecessary for me to state the facts or the issues which arise in this appeal. I agree with his Honour’s conclusions concerning the principles applicable upon the review by an appellate court of an assessment of damages made by a judge sitting without a jury. Upon the facts of this case I do not consider that the allowance for pain and suffering and loss of amenities made by the trial judge was too low having regard to the economic standards of this country. The only question, in my opinion, is whether the sum of $19,000.00 awarded for economic loss is excessive. The trial judge arrived at this figure, as it seems, by a composite use of the method used in England by determining the annual loss of dependency and dealing with the figure thus obtained, by way of a multiplier, and of a table based on an interest rate of 6 per cent to arrive at the present capital value of future likely earnings. Upon the average annual loss of earnings assessed by the trial judge at $1,900.00, ten years purchase seems to have been in fact taken as the multiplier. In relation to that method it is useful to cite a passage from the speech of Lord Reid in Taylor v. O’Connor[cccxliv]1 whiovides ades a description of the years’ purchase method of assessing damages. The passage follows:

“Damages to make good the loss of dependency over a period of years must be awarded as a lump sum and that sum is generally calculated by applying a multiplier to the amount of one year’s dependency. That is a perfectly good method in the ordinary case but it conceals the fact that there are two quite separate matters involved—the present value of the series of future payments, and the discounting of that present value to allow for the fact that for one reason or another the person receiving the damages might never have enjoyed the whole of the benefit of the dependency. It is quite unnecessary in the ordinary case to deal with these matters separately. Judges and counsel have a wealth of experience which is an adequate guide to the selection of the multiplier and any expert evidence is rightly discouraged. But in a case where the facts are special I think that these matters must have separate consideration if even rough justice is to be done, and expert evidence may be valuable or even almost essential ...”

It will be noted that the basis for the use of this method is the familiarity of judges and counsel in its use. See also op. cit. per Lord Morris of Borth-y-Guest at p. 134 and. per Lord Guest at pp. 135, 136. Although I have on several occasions used this method (it was also adopted by Kelly J in Leemba Yosuwe v. Kumren Behekona and Another [cccxlv]2), I now think that because, in the special circumstances that exist in this country, as yet neither judges nor counsel have really had the necessary experience in its application, the more satisfactory method for assessing damages for economic loss is that used commonly in Australia, viz. by the use of an appropriate table or actuarial evidence to arrive at the present capital value of the future likely earnings, and then proceeding to make such deductions as the facts of the case warrant. In this case the appropriate test is thus to be found in the use of the tables referred to by the trial judge. Upon the annual average loss of earnings of $1,900.00 the weekly figure is, as I calculate It, $36.50 less $3.00 tax, making $33.50. The trial judge considered that the respondent would continue to work for some years after attaining the retiring age of fifty-five years, and as his Honour was not apparently able to say that the respondent’s service would continue until the statutory age of sixty when a teacher may be compulsorily retired, I would take the period his Honour had in mind as continuing until the age of, say, fifty-eight years. As the respondent said he was thirty-nine or forty years at the time of the accident, The maximum period over which the loss of earnings was incurred, as I consider the appellant was entitled to have it assessed, was a period of 18 years. If one looks at the table the maximum capital sum for such loss of earnings can only be found by estimating it from the figures provided for the present value of a weekly economic loss of $30.00 for the periods respectively of fifteen years and twenty years, and of a weekly economic loss of $35.00 for periods of fifteen years and twenty years. So far as I can estimate it, for a weekly economic loss of $33.50 over eighteen years the capital sum is about $19,500.00.

The appellant’s counsel submitted that the award was excessive for two reasons, the first being that that sum was arrived at upon the basis that the plaintiff’s total earning capacity had been destroyed when this had not been established on the evidence. The trial judge’s only finding was that the respondent would never be able to teach again, which was justified upon the evidence. The question is whether, on the evidence, it was shown that the respondent would be unable to carry out some other occupation less exacting than teaching, such as that of a clerk or an assistant in a trade store. This was not adverted to at the trial; but I am not convinced on the evidence that it was wrong for the trial judge to have taken as the basis of his judgment that upon the probabilities the respondent would not work again at any occupation. Mr. Lumsden, the psychologist, said that he believed the injury left the respondent unable to work, and although the witness then went on to say that the respondent would be unable to teach, his evidence as a whole, in my opinion, is capable of supporting, the judge’s finding.

Upon the second ground of appeal the appellant’s counsel submitted that whilst the trial judge had arrived at the figure of $19,000.00 by allowing, the respondent the entire loss of his future weekly earnings for the rest of his estimated working life, there has been no significant deduction for the ordinary contingencies of life such as early death, sickness or supervening accident. I consider that this submission is sound. The table used by the trial judge states that mortality has been ignored so the possibility that the respondent may not have survived until the age of fifty-eight was not taken into account. Loss of earnings by sickness and supervening accident is a real possibility for the people of this country and, in my opinion, should have been taken substantially into account. As his Honour made no significant deduction for these contingencies it is for this Court to make such deduction as it considers the facts warrant.

On the whole I have come to the conclusion that a deduction of $5,000.00 from the award should be made, and that the judgment should be reduced by that sum.

CLARKSON J: This is an appeal against a judgment given on 13th October, 1972, for $27,540 in favour of the respondent (plaintiff) for damages for personal injuries suffered in a traffic accident.

On 27th May, 1970, the plaintiff was riding a motor cycle at the intersection of Markham Road and Huon Road in Lae when the motor cycle came into collision with a motor vehicle driven by the appellant (defendant). As a result the plaintiff suffered serious injuries. His action against the defendant was defended on the ground that these injuries were caused by the plaintiff’s own negligence but the learned trial judge found that the collision was due to the negligence of the defendant alone and thereupon awarded the damages to which I have referred.

The defendant’s appeal to the Full Court set up in substance, firstly, that the plaintiff should have been found guilty of contributory negligence; secondly, that the damages awarded were excessive; and thirdly, that the trial judge was wrong in not permitting a further particular of the plaintiff’s negligence to be added during the trial.

Before us the first and third grounds of appeal were abandoned and we have heard argument on the sole ground that the damages awarded to the plaintiff were excessive.

At the time of the trial, in September and October 1972, the plaintiff was thirty-nine or forty years of age. Immediately prior to his injuries he was what is known as an ungraded teacher, which appears to mean that because of a comparatively low standard of formal education he had not yet qualified for appointment as a teacher of Grade I or higher although he had been teaching since he finished his training in approximately 1951.

It is unnecessary to review the evidence of his qualifications, experience and prospects. This was carefully done by the trial judge who concluded that the plaintiff “was an enthusiastic teacher devoted to, and enjoying the practice of his profession, who was among the best teachers of his level, who would have looked forward to and whom I would have expected to have gained, promotion up as far as Grade 3, and who -might well have in his dedication, gone beyond the retiring age of 55 years”.

The plaintiff’s principal injuries were to his left arm, left leg, jaw and head. The injuries to the left leg and jaw have recovered leaving no substantial disability. However, substantial and permanent disability has resulted from the injuries to the left arm. Apart from bone fractures there was a rupture of the brachial plexus which has resulted in a complete and permanent paralysis of the left arm which is now a useless appendage. At the time of the trial the plaintiff had so far not accepted medical advice that the arm should be amputated.

As to the head injury the plaintiff appears to have suffered what is described as a “closed bead injury” which rendered him unconscious for some ten days after the accident. There is some dispute as to the extent of this injury. No psychiatrist or neuro- surgeon was called to give evidence although some views were expressed by an orthopaedic surgeon and by a psychologist who had no medical qualification nor experience and who appears to have been in practice for only two years or so.

The trial judge’s finding in respect of this injury was as follows:

“I am satisfied that in the accident the plaintiff suffered some cerebral injury which has left him with permanent impairment of intellect, a disturbance of thinking processes and an emotional overlay which in combination with his physical injury has had the result that he will never be able to carry out his teaching work again.”

The trial judge set out the various components which made up the total damages awarded and these may be summarized as follows:

It is conceded by the appellant that the plaintiff would have undergone pain and suffering as a result of his injuries and clearly the plaintiff was entitled to substantial compensation for the complete loss of the use of his arm. The appellant’s challenge is directed at the assessment made by the trial judge of the plaintiff’s future economic loss, and to understand the arguments it is desirable to set out the relevant passage in the judgment. It reads as follows:

“At the time of the accident Mr. Raquel’s gross annual salary was $1,070. From a gross fortnightly figure of $41.02 there were deductions of 80 cents for tax and 25 cents for P.S.A. subscription. Other deductions for rent and retirement benefits fund made weekly, should not I consider be deducted in trying to arrive at a net figure for purposes of computing his out-of-pocket losses to date. It is now two years four months since the accident. During that period he was employed back by the Education Department for some eight months, and the amounts received for sick leave both at a full-pay rate and half-pay rate, are the equivalent of another seven months’ pay. Taking this as indicating that he has been paid for fifteen of these months, the result is that he has remained unpaid for thirteen months of this two years four months period. I have adopted $40 per fortnight as an appropriate figure of real loss which for thirteen months I compute at $1,040.

In attempting to compute his future economic loss, I have had regard to the salary ranges relating to the grades immediately above that in which he was employed at the time of the accident. At present the rates are as follows:

in Grade 1—$1,070 to $1,785;

in Grade 2—$1,785 to $2,155; and

in Grade 3—$2,155 to $2,555.

I consider that he would by now have been reclassified as a teacher Grade 1 and be receiving yearly increments that would take him up to the figure of $1,785 per annum. From the evidence as to his abilities and professional dedication, I consider it more probable than not that he would have remained in the service at least sixteen years and that in that time he would have progressed to the present range of Grade 2 salary which goes up to $2,155; and thence again by yearly increments to the top range of Grade 3 as at his retirement period. Given his disposition and abilities I think it quite reasonable to expect that he would have continued working for some years after reaching the fifty-five year mark and one would expect of course the ranges of salaries to increase over that period.

It is difficult to arrive at a proper figure in all the circumstances obtaining here of a man’s economic future. Doing the best I can on the material before me I have considered it reasonable to assume that he would have been employed at Grade 1 level for some five years and at each of Grades 2 and 3 for some five years. I consider the figure of $1,900 to fairly represent the average annual earnings which I would expect him to achieve. In arriving at what has now come to be called the ‘multiplicand’ in the English courts’ jargon, I take this figure represented weekly as $38; and I allow a deduction of $3 for taxation purposes to arrive at a net figure of $35 per week. As I have accepted that he would work for at least sixteen years I think it is fair to accept this as the ‘multiplier’. In arriving at these I have allowed for the vicissitudes of life and the possibility of other incapacitating factors and such other contingencies as I can envisage; and making discount for the enhanced value of having the present sum of future earnings; I have then had some regard to the tables of economic loss appearing in Leslie and Britts, Motor Vehicle Law (N.S.W.) 3rd edition at p. 704-5—those computed on an interest rate of 6 per cent per annum. I consider that the figure of $19,000 would fairly represent compensation for future economic loss.”

The appellant’s argument is summarized by saying, firstly, that the trial judge assumed that the plaintiff has suffered a total and permanent loss of earning capacity when the evidence does not establish such a loss and, secondly, that in making the calculations set out above the trial judge treated probabilities as certainties and made no proper allowance for what is commonly referred to in similar cases as contingencies.

As to the first of these arguments it will be noted that at the time of trial the plaintiff if he had been working would have been receiving a salary at the rate of $1,040 per annum net, and would have had a working life of 15 or 16 years before reaching a voluntary retiring age.

The trial judge calculated that the plaintiff would have remained in the service at least 16 years, that but for the accident he would have already been classified as a Grade 1 teacher, and that at intervals of five years thereafter he would have been reclassified as a Grade 2 and Grade 3 teacher respectively; that is, that on the basis of present salaries his income would have risen from $1,070 per annum to $2,555 per annum over that period. He considered the sum of $1,900 to fairly represent the average annual earnings the plaintiff might be expected to achieve.

On this basis his Honour arrived at a net figure of $35 per week—which on his Honour’s figures appears to be $1.50 too high—or $70 per fortnight, and then proceeds:

“As I have accepted that he would work for at least sixteen years I think it is fair to accept this as the ‘multiplier’. In arriving at these I have allowed for the vicissitudes of life and the possibility of other incapacitating factors, and such other contingencies as I can envisage;”

His Honour then recognizes that the total sum should be discounted in calculating the present capital value of the future likely earnings and adopting a 6 per cent table to which he refers arrives at a figure of $19,000. The table mentioned shows the present day value of a weekly economic loss of $35 for fifteen years to be $18,256.

The appellant complains that while such a calculation might be appropriate in respect of the loss of earning capacity of a person who is shown to be a total and permanent invalid it is not appropriate to the plaintiff, for a number of reasons. Firstly, it has not been established that the plaintiff will never be able to resume employment as a schoolteacher. Secondly, the plaintiff’s inability to engage in this occupation is as his Honour recognized partly due to an emotional overlay and this may well improve or even disappear when this case is finalized. Further, even if his incapacity to resume teaching is accepted it has not been shown that he could not either now or in the future engage in some other productive employment. The plaintiff is a man of intelligence and education who, being right-handed, is still able to write and who could well be employed as for instance a clerk. On this argument the plaintiff’s capacity to earn has not been totally destroyed although his field of employment has been restricted.

In support of the second argument raised it is contended that, whilst his Honour accepted that the plaintiff would have worked for “at least 16 years” and gave him the benefit of assuming that his average weekly earnings over that period would be $70 per fortnight net compared with his pre-accident earnings of only $40 per fortnight net and stated that he had allowed for the vicissitudes of life, other possible incapacitating factors and other contingencies, he appears not to have done so because he chose as the appropriate period for the calculation something in excess of 15 years and it is only the difference between this and “at least 16 years” which is the basis of the monetary measure of the allowance for the matters to which he referred. It was suggested that the possibility of either premature death or disability would justify a greater deduction than that which was made.

Before dealing with these arguments I think it desirable to record what I consider to be the function of the court in dealing with this appeal.

In recent years there has been considerable discussion in cases regarding the circumstances which justify an appellate Court interfering with an assessment of damages made by a judge sitting without a jury.

Miller v. Jennings[cccxlvi]3 was an appeal to the High Court of Australia against an award of damages by a judge on the grounds that the awas inadequadequate. Dixon CJ and Kitto J at p. 196 pointed out that where the award is that of a judge alone the appeal is by way of rehearing on damages as on all other issues; “but as there is generally so much room for individual choice so that the assessment of damages is more like an exercise of discretion than an ordinary act of decision, the appellate court is particularly slow to reverse the trial judge on a question of the amount of damages.”

Their Honours then proceed:

“It is difficult to lay down any precise rule which will cover all cases, but a good general guide is given by Greer L.J in Flint v. Lovell ([1935] 1 K.B. 354, at p. 360). In effect the 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. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency ([1942] A.C., at pp. 616-617). We have had before us cases in which consistently with these principles we have increased the damages awarded by a judge although they were damages for bodily injuries; a notable example is Pamment v. Pawelski ((1949)[1949] HCA 43; , 79 C.L.R. 406), where an attempt was made briefly to restate the considerations which at the present day should enter into an assessment of such damages. In that case we considered that the disparity between the sum fixed and what appeared proper was so extreme as to justify our interference. Can we say that of the assessment in the present case? Or can we discover any error of principle in the manner in which the learned judge arrived at his award? In other words is the case one to which either branch of the general proposition of Greer L.J in Flint v. Lovell ([1935] 1 K.B. 354, at p. 360) applies, namely that the appellate court must be convinced either that the judge acted on a wrong principle or that the amount awarded was so extremely small as to make it, in its judgment, an entirely erroneous estimate of the damage to which the party is entitled.”

The same view was taken by the High Court in O’Brien v. McKean [cccxlvii]4, and I am not aware of anything said in later cases which would diminish the authority of Miller’s case (supra)[cccxlviii]5. It is applied in Queensland. See Rudken v. Rickman [cccxlix]6, and was applied again by Gibbs J in Faulkner v. Keffalinos[cccl]7 in a jut apnt approved of by other members of the High Court.

I turn now to the two criticisms directed at the calculations in respect to loss of earning capacity.

The plaintiff was earning at the rate of $1040 per annum at the time of the accident. The allowance made for loss of earning capacity is the present value, calculated on the 6 per cent table, of an annuity of $1820 per annum payable by weekly instalments for a period of about 15 ½ years. The plaintiff’s future working life was estimated to be “at least 16 years”. If any allowance was made for what are commonly called the contingencies then it seems clear that it is assumed in this calculation that the plaintiff will be totally incapacitated for the rest of his working life. There is nothing in the record to show that this aspect was raised during the trial and I can only assume that at the trial the present appellant by not cross-examining the plaintiff or his witnesses on this issue nor directing evidence to it himself in effect allowed the trial judge to adopt a view which, with respect, I think misapprehends the effect of the evidence.

In a country where a facility in reading and writing is far from universal, the plaintiff is still in good physical health and able to read and write, and has had experience in the sort of administrative work ordinarily associated with school-teaching. One of the disabilities which make him unable to teach is what the trial judge described as an emotional overlay and the psychologist who examined him in October 1971 and again about a year later at the time of the trial found that on the latter occasion his memory had improved a little and that he was definitely less confused. The possibility of future improvement certainly cannot be disregarded.

How should this situation be met in this Court? There are undoubtedly cases where a burden of introducing evidence may fall on the defendant and may shift in the course of the trial. Watts v. Rake [cccli]8, as explained in Purkess v. Crittenden [ccclii]9, was such a case where the plaintiff was able to show that before the accident he was able to lead an active life and that a cause of his subsequent crippled condition had been the injuries he sustained in the accident. It was held a presumption arose in favour of the plaintiff which the defendant should overcome if the defendant wished to assert, for instance, that had there been no accident the plaintiff would have been prematurely incapacitated by other causes.

In that case Dixon CJ (at p. 159) makes it clear that a plaintiff who sues in tort for unliquidated damages carries the burden of satisfying the tribunal of the damages he has suffered both special and general and of the quantification in money that should be adapted in the sum awarded.

But I do not think it necessary to pursue these considerations here because I am not drawing my own inferences from the evidence but accepting in substance the expressed findings of the trial judge. The trial judge found that as a result of the plaintiff’s injuries he would never be able to carry out his teaching work again. He did not find that the plaintiff would never be able to engage in any remunerative employment, and I should add I do not think that on the evidence before him he would have been justified in so finding, nevertheless he awarded damages on this latter basis.

The nature of the contingencies referred to in the appellant’s second argument and the weight to be given to them have been considered by the High Court in a number of recent cases. See for instance Bresatz v. Przibilla [cccliii]10, General Motors-Holden’s Pty. Ltd. v. Moularas[cccliv]11 and v. Keffalinos [ccclv]12.

I do not attempt a suma summary of what is discussed in these and other cases but two points may be made in respect of the present case; firstly, that in this country the vicissitudes referred to are by no means unreal risks and, secondly, that arithmetical tables assist in arithmetical calculations, but they say nothing useful about the prospects, risks, future health or earning reliability of the plaintiff himself in the type of developing society in which he will live. There can be no certainty that but for the accident the plaintiff would earn an average of $1,900 per annum for the rest, or even the greater part, of his working life, nor any certainty that because of the accident he will be quite incapable of earning anything for a similar period. For an indigenous man thirty-nine or forty years old the chances of death, sickness, accident or unemployment, or other interruptions to earning, at some time during the following fifteen or sixteen years are real.

But it is the particular circumstances of the plaintiff himself which are important and the practice sometimes adopted of scaling down the initial calculation by a generally accepted percentage, say 25 or 30 per cent, without close regard to the particular contingencies in the case concerned has been criticized. See Teubner v. Humble[ccclvi]13 and v. Przibilla (supra)[ccclvii]

It is difficulticult on the material available to say what weight should be given to these contingencies in attempting to estimate the plaintiff’s loss of earning capacity nor, as I have pointed out, is it clear what weight the trial judge gave to them. It was said that the plaintiff could retire at any time after reaching the age of fifty-five years. Presumably that is the age at which he could on retirement obtain benefits for the Retirement Benefits Fund, but he was not asked about his intentions nor was there any evidence to show whether it was usual or unusual for teachers to retire at fifty-five.

The trial judge found that the plaintiff was “some 39 or 40 years of age” and considered it more probable than not that he would have remained in the service “at least 16 years”. It was reasonable to expect that he would have continued working “for some years after reaching the 55 year mark”. Then follows the passage from the judgment I have already set out. The multiplier in fact selected was about 15 ½. It seems to me that on this material and adopting the method employed by the trial judge it would be open to argue that he first selected as a multiplier a figure of anything between 16 and, say, 19 or 20 which he then reduced to 15 1/2. For myself, I would think a reduction from 16 to 15 ½ as a proper allowance for the contingencies in this case would be too little, but opinions may properly vary whether a reduction from 20, or even from 19, to 15 ½ was reasonable. The trial judge has said that he made allowance for vicissitudes and contingencies and in the circumstances I can see no reason for supposing that he did not make a proper allowance. An estimate that in ordinary circumstances the plaintiff would probably have continued working until he was sixty years old cannot in my view be attacked as unreasonable and this is what the trial judge may be taken in effect to say.

This is the first appeal to come to this Court against an award of damages and it is appropriate to record a warning against the too ready acceptance of the scale of damages awarded or the general method of calculation used in other jurisdictions or, more importantly, the implicit assumptions on which those awards are based.

The High Court of Australia has rejected the notion that the propriety of an award can be tested by comparison with some norm or standard to be found in other decisions of that Court. Planet Fisheries Pty. Ltd. v. La Rosa[ccclviii]15. The Court said: “The judgment of a court awarding damages is not to be overborne by what other minds have judged right and proper for other situations. It may be granted that a judge who is making such an assessment will be aware of and give weight to current general ideas of fairness and moderation. But this general awareness is quite a different thing from what we were invited by Planet’s counsel to act upon in this case. The awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavoring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.”

A different view appears to have been adopted by the Court of Appeal for East Africa. In Adye’s case[ccclix]16 that Courtrreferred to an earlier case in which it “gave approval tompts to relate the award of general damagesmages to some notional standard to be gathered from the general level of such awards in parallel cases ...” The same approach has been adopted by the Court of Appeal of Singapore, Ng Kay Thiam [ccclx]17.

Another point which will require consideration is the necessity to give weight to “current general ideas of fairness and moderation” which in the present state of economic and social development may well differ significantly in standard and quality from ideas generally accepted in other countries. This also is a matter which has been noted by the Court of Appeal for East Africa. Speaking for the court in Kimothia[ccclxi]18 La said, ind, in considering an appeal against an award of damages:

“Mr. Cohra has cited a number of English cases in which higher damages were awarded for comparable injuries. In my view awards made by foreign courts although helpful as a guide do not necessarily represent the standards which should prevail in Kenya, where the conditions relevant to the assessment of damages, such as wages, rents and cost of living generally may be very different.”

I add that it may be necessary to go further and to examine the underlying assumptions which are made when estimating damages where the emphasis is more on social and personal, rather than economic, considerations under such headings as pain and suffering and loss of amenities. The trial judge in this case, for instance, has referred to the effect on a villager in a village community of the loss of a limb.

It is undesirable and unnecessary to attempt in this case any answers to the questions I have raised. It is however desirable in this, the first case of its kind to come to the Full Court, to point to the existence of the problems.

I return to the particular problem before us and my conclusions are that while the appellant cannot show that a proper allowance for contingencies was not made, it does appear that the trial judge was allowed so to misapprehend the facts that he assessed damages on the basis that the plaintiff’s total earning capacity had been destroyed when this had not been established.

This conclusion demands another inquiry.

The fact that one component in a total sum of damages awarded is shown to be excessive or inadequate is not itself sufficient to upset the award. “. . . The question is ultimately what total sum represents a fair compensation for the injuries the plaintiff suffered.” Faulkner v. Keffalinos (supra)[ccclxii]19. See also Bresatz v. Przibilla (supra)[ccclxiii]20, Arthur Robinson (Grafton) Pty. Limited v. Carter [ccclxiv]21, and a case where the total sum was treated by the Court of Appeal as being of both special and general damages — Povey v. Jackson [ccclxv]22. Other cases are referred to by Windeyer J in Faulkner v. Keffalinos [ccclxvi]23.

I have already set out the particulars which the trial judge gave showing the components of the total award. My own view is that the allowance for pain and suffering may be lower than I would have assessed but no reasonable increase of this figure could affect the substantial over-allowance which appears to have been made for loss of earning capacity.

The figure allowed for loss of earnings prior to trial has not been challenged and I do not see that it can be. The balance of the award, $26,500, was in effect for general damages. Bearing in mind the matters I have discussed and all that the trial judge has said I ask myself what total sum would be fair and reasonable compensation for the injuries received and the disabilities caused. The other members of the Court agree the award should be reduced by $5,000. I think this gives a fair assessment and concur in an order reducing the award by that figure.

Appeal allowed. Amount of judgment reduced to $22,540.00.

Solicitors for the appellant: White, Reitano & Young.
Solicitors for the respondent: G. R. Keenan, Acting Public Solicitor.

[cccxliv] [1971] AC. 115, at p. 128.
[cccxlv] [1971-72] PNGLR. 459.
[cccxlvi][1954] HCA 65; (1954) 92 CLR. 190.
[cccxlvii][1968] HCA 58; (1968) 42 ALJR. 223.
[cccxlviii][1954] HCA 65; (1954) 92 CLR. 190.
[cccxlix] [1967] QWN. 6.
[cccl] (1971) 45 A.L.J.R. 80, at p. 87.
[cccli][1960] HCA 58; (1962-63) 108 CLR. 158.
[ccclii][1965] HCA 34; (1965-66) 114 CLR. 164.
[cccliii][1962] HCA 54; (1962-63) 108 CLR. 541 (per Windeyer J., at pp. 543-4).
[cccliv][1964] HCA 39; (1963-64) 111 CLR. 234 (per Barwick C.J., at p. 242, Menzies J., at pp. 250-252, Windeyer J., at pp. 257-8, Owen J., at p. 262).
[ccclv] (1971) 45 ALJR. 80.
[ccclvi][1963] HCA 11; (1962-63) 108 CLR. 491, at p. 508.
[ccclvii][1962] HCA 54; (1962-63) 108 CLR. 541, at pp. 544-5 (per Windeyer J.).
[ccclviii][1968] HCA 62; (1968-69) 42 ALJR. 237, at pp. 238-9.
[ccclix](1956) 23 EACA.
[ccclx] (1971) 2 MLJ. 256.
[ccclxi] [1971] EA. 81.
[ccclxii] (1971) 45 ALJR. 80, at p. 83.
[ccclxiii][1962] HCA 54; (1962-63) 108 CLR. 541, at p. 543.
[ccclxiv][1968] HCA 9; (1968) 41 ALJR. 327, at p. 332.
[ccclxv] [1970] 2 All ER. 495.
[ccclxvi] (1971) 45 ALJ.R. 80, at pp. 83-4.