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Bradford v Bradford [1975] PNGLR 305 (6 October 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 305 - Bradford v Bradford 

[1975] PNGLR 305

N4

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BRADFORD

V

BRADFORD

Port Moresby

Prentice DCJ

30 September 1975

6 October 1975

INFANTS AND CHILDREN - Sanctioning of settlements - Powers of Court - Compromise - Benefit of infant - Duty of court to act on proper evidence of benefit - Royal prerogative extending to resident of Australia at date of trial.

INFANTS AND CHILDREN - Sanctioning of settlements - Settlement including compromise - Relevant considerations - Parent defendant - Possibility of parental financial loss disadvantaging infant plaintiff irrelevant.

DAMAGES - Assessment of general damages - Expatriate Australian - Australian resident at date of trial - Award not to be moderated on account of differing community standards.

In an action for damages for personal injuries arising out of a motor vehicle accident the plaintiff (aged 15 years at the date of trial) by her next friend (her mother) sued the defendant (her father). Liability was admitted and settlement in the amount of K8000.00 (inclusive of K1558.00 special damages) agreed to, subject to the sanction of the Court. At the date of the accident the plaintiff, an Australian, was resident in Papua New Guinea but at the date of trial was resident in Australia. Senior counsel’s opinion as to the propriety of the proposed settlement was that general damages could well be assessed at between K12,000.00 and K16,000.00, but that making a reduction in accordance with the Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265, the range would be between K9,000.00 and K12,000.00, and on the basis that the defendant’s insurance cover was limited to K8,000.00 and any additional financial strain on the defendant would be counter-productive to the plaintiff’s welfare within the family, an award of K8,000.00 would be reasonable.

Held

(1)      Any award of general damages for an Australian expatriate should not be moderated by reason of the different level of community standards in Papua New Guinea.

Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz [1975] P.N.G.L.R. 262 followed. Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265 not followed.

(2)      The power of the National Court of Justice in relation to the sanctioning of settlements upon infant plaintiffs, as it was in the Supreme Court of Papua New Guinea prior to Independence, is that of the royal prerogative as parens patriae, and does not as such extend to non resident aliens, but the plaintiff now an Australian resident would not be an “alien” qua the Queen of Papua New Guinea who is also Queen of Australia.

Maria Akawe v. Wells, [1973] P.N.G.L.R. 334 and Katundi and Katundi (Infants) v. Hay, [1940] St.R.Qd. 39 at p. 45 referred to.

(3)      The duty of the Court in sanctioning a compromise being to consider whether or not the compromise will be beneficial to the infant, the power should only be exercised upon proper evidence of benefit to the infant.

Katundi and Katundi (Infants) v. Hay [1940] St.R.Qd. 39 followed.

(4)      The possibility of parental financial loss reacting to the disadvantage of the infant plaintiff was irrelevant to the assessment of general damages; and

(5)      There being no evidence of any positive benefit to the infant plaintiff, the proposed settlement embodying as it did a compromise, should not be sanctioned.

Application

This was an action for damages for personal injuries, arising out of a motor vehicle accident in Port Moresby on 16th January, 1972. The plaintiff (an infant) was resident in Papua New Guinea at the date of the accident but was resident in Australia at the date of trial. Liability having been admitted, the plaintiff by the next friend (her mother) sought to have a proposed settlement sanctioned by the Court.

Counsel

M. J. Wright, for the plaintiff.

G. B. Evans, for the defendant.

Cur. adv. vult.

6 October 1975

PRENTICE DCJ: Miss Bradford, a child, was rather badly injured in a motor car accident on 16th January, 1972 in Port Moresby. The vehicle in which she was travelling as a passenger was driven by the defendant her father into the rear of another vehicle which was stationary. A settlement in the amount of K8,000 plus costs has been agreed to, subject to the approval of the Court being given — the plaintiff yet being only fifteen years of age.

I am informed by counsel, and I accept to be the fact, that no issue could reasonably arise as to the liability of the defendant for damages for the injuries caused his daughter.

The principal injuries inflicted were to the head. They included laceration of the left eyeball involving prolapse of the iris; extensive facial lacerations with some skin loss and baring of bone; a twisting of the left upper eyelid. There were some upper body lacerations, and there is some suggestion that the plaintiff was unconscious for forty-eight hours. Reparative work involving removal of glass, and surgery were performed by ophthalmologists at Port Moresby and Townsville. A Brisbane plastic surgeon also carried out some operations to reduce scarring and lessen cosmetic damage to the face. Further plastic surgery is contemplated for the future. As could be expected in a young girl, psychological upset was caused.

No medical reports later than June 1974 were put before me. But the mother, next friend, states on affidavit, that as at July 1975 certain residual injuries were observable. These include, scarring of forehead, left temple and left cheek, a grafted area of skin involving the left upper eyelid, abnormal twitching of the left side of the face, impairment of vision of the left eye. It is averred that K1558.11 has been incurred for and in connection with medical treatment — including fares to and while in Brisbane, on behalf of the next friend in attendance on her daughter.

The psychiatrist who interviewed the plaintiff once in June 1974, took an optimistic view of her personality adjustment to the injury, though predicting headaches would continue for some years. It is clear that until December 1973 at least, she suffered torment as a schoolgirl from her facial appearance.

The plastic surgeon last saw her in April 1974, and while recommending further surgery, considered that it should be postponed and that nevertheless the aftermath would include permanent facial scarring (including a linear scar of the left cheek). He appeared to think in February 1974, that a twitch associated with eye-blinking would be a noticeable and disfiguring permanent feature; and that a permanent disfigurement of the eye and eyelid would ensure. In summary it seems that there has been and will be cosmetic improvement from the initial injuries; but that a marked permanent disfigurement to the face will continue.

The ophthalmologists report that the permanent injury to the iris produced some intolerance to light and a deterioration of vision. There is corneal scarring which could degenerate into cataract development and secondary glaucoma (the latter up to fifteen to twenty years after the accident). The loss of visual efficiency was originally expressed at fifty per cent to the left eye (or seventeen per cent overall, between both eyes). Improvement to visual acuity was not expected in November 1973. However in August 1974, it was thought some slight improvement might have occurred. Spectacles were not recommended.

No photographs have been put before me; so that I am unable to form my own opinion such as a jury might do, as to the possible effect on this girl’s life, that the cosmetic injuries might wreak.

In accordance with practice, an opinion was obtained from Mr. Libling of counsel as to the propriety of the proposed settlement. He formed the opinion that apart from the effect of the decision of the former Full Court in Carroll’s case[cdviii]¹ general damages could well be assessed at between K12,000-K16,000. Making a reduction of the order called for by Carroll’s case[cdix]² the range of general damages as he saw it, would lie between K9,000-K12,000. On the basis that the insurance cover was for only K8,000, counsel considered that an award of K8,000 (inclusive of K1558.11 special damages) was reasonable. He came to this conclusion on a consideration of what he understood to be the defendant’s means. An award of damages which would have to be borne by the defendant, would place, he thought, “financial strain on the defendant”, and produce emotional strain in the family life that “would be counter-productive to the plaintiff’s welfare in the context of her currently warm and happy relationship with the defendant”.

Carroll’s case[cdx]³ has been considered and expressly overruled by a recent decision of the newly constituted Supreme Court of Papua New Guinea. It is possible that had Mr. Libling had the advantage of having before him that decision (Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz [cdxi]⁴) he would not have recommended that the offered figure be accepted.

I find myself troubled not only by this aspect; but by the approach which suggests that the relationship of the parties may be taken into account in the manner suggested. No authorities have been cited to me in support of the proposition stated by Mr. Libling and now urged by counsel representing the next friend.

I feel I should say at the outset, that I consider it was a mistake to have had the mother appointed next friend in this case. The possibility of conflict of interest and duty should have been anticipated in an action in which a mother of a child sues her husband on behalf of the injured child, when mother and father and child are living in normal family relationship. It is at this stage, and through the submissions put to me, apparent. I have in mind the limited insurance cover, which ensures that any damages over K8,000 must come from the husband’s pocket (or if the household joint income be considered — the wife’s as well).

The duty of this Court and the power it exercises in relation to scrutinising and sanctioning infants’ settlements in Papua New Guinea was examined in my judgment in Maria Akawe by her next friend Loa Ya v. Wells [cdxii]⁵.

The infant plaintiff is now resident in Australia, a foreign (though Commonwealth) country. As Philp J. pointed out in Katundi and Katundi (Infants) v. Hay[cdxiii]⁶ the Queen’s power, and the Court’s does not extend to regarding non-resident aliens as being under the Royal care. However I should form the view that in regard to rights accruing to an Australian child at the time resident in Papua New Guinea (then part of Australia’s dominion) the facts would call for the exercise of parens patriae power — after all the child is still under the Royal protection through the Queen of Papua New Guinea’s right as Queen of Australia; and the child is not an “alien” qua the Queen.

Before the Court’s power of making a compromise into an order of the Court may be invoked, the Court requires proper evidence of benefit to the infant (Philp J. in Katundi and Katundi (Infants) v. Hay[cdxiv]⁷). The curial duty in sanctioning a compromise, says Halsbury (3rd ed., Vol. 21 at p. 326), requires it to “consider whether or not the compromise will be beneficial to the infant”. The notes to Rules of the Supreme Court, O. 80, r. 10 (1970 White Book U.K.) state that:

“In considering whether to approve a settlement, the question before the Court is, not what amount of damages should be or would have been awarded to the plaintiff on the trial of the action, but whether itself the settlement is a reasonable one, and is for the benefit of the infant, having regard to all the circumstances of the case, including the risks of litigation, the desire of the parties to settle, and the disinclination of the plaintiff to go to trial.”

The dangers inherent in approving a settlement where a benefit accrues to a next friend have been flagged by the Court of Appeal in Rhodes v. Swithenbank[cdxv]⁸ where a judgment of non suit coupled with an agreement not to pursue costs against the next friend, was set aside.

I find difficulty in allowing the fact that the defendant is presently amicably supporting his daughter and might encounter financial strain in continuing to do so if he is personally mulcted of some proportion of the damages, to be relevant. I am reminded of Philp J.’s statement in Phillips v. Munro[cdxvi]⁹ of the tendency to confuse the availability of monies awarded to an infant with the continuing liability of a parent to maintain his child.

It has been stated that the next friend and the defendant as husband and wife operate a country post office outside Ayr in Queensland. Such an operation is commonly allied with some sort of business. Its profitability varies from location to location. Some I have known of, produced a substantial competence. No information has been put before this Court as to the parents’ joint income, outgoings, or assets and resources. No real information is in any event available as to the manner in which a liability in the father to contribute any particular amount to the verdict could be met, or what effects it would have on the family’s life. I can appreciate that the effect could be somewhat serious.

Such a serious effect could conceivably react against the economic security and happiness of the infant plaintiff. But normally parents are astute to shield their offspring from the worries of money troubles, and I see no reason why these parents would not do so in this case; nor any reason why the plaintiff should not be able to complete her high school studies at Ayr State High School. Should any worry spring up in the plaintiff’s mind (some feeling that she had deprived her parents of anything) she could no doubt repay her father, upon her attaining her majority, any money she then thought he should have returned to him.

On the other hand what would be the present and continuing effect on a child who has suffered already psychological upset for a period, and remains saddled for life with facial disfigurement and some marked degree of loss of vision, of the knowledge that though she could and should have been compensated by her father, through his negligence in the setting of Papua New Guinea he failed properly to insure himself and later prayed his own folly in aid of not having to himself compensate properly the daughter he had injured by his negligence. I can readily see benefits accruing from the suggested settlement to the next friend and to the defendant. I think the field explored by counsel of the possibility of a parental financial loss reacting to the disadvantage of the plaintiff (and this is the only way that I believe the potential family dislocation may be taken into account) to be quite nebulous. The picture painted seems to depend upon an immaturity of character and personality weaknesses in the parents which are not evidenced and should not be supposed. I am unable to see that any positive benefit to the plaintiff from a sanctioning of the proposal has been demonstrated.

I make these observations in the setting of my firm opinion that the range of proper verdicts is somewhat akin to that proposed initially by Mr. Libling, viz. K12,000-K16,000 to which I think the out of pocket figure of K1558.11 should in any event be added. But the sanctioning of such a figure could not be arrived at satisfactorily I think, without the medical reports having been brought up to date and photographs evidencing the facial disfigurement now (and possibly those existing soon after the accident, if available) produced.

I refuse to sanction the proposed settlement. I direct that any further and more reliable proposal be supported by additional evidence of the kind I have outlined in the last paragraph. I express the opinion that strong efforts should be made to bring the matter to a conclusion as quickly as possible — some years of loss of interest on verdict have already (necessarily in view of the non-static injuries) occurred.

Orders refused.

Solicitor for the plaintiff: Craig Kirke & Wright.

Solicitor for the defendant: Gadens.

[cdviii][1974] P.N.G.L.R. 265.

[cdix][1974] P.N.G.L.R. 265.

[cdx][1974] P.N.G.L.R. 265.

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

[cdxii][1973] P.N.G.L.R. 334.

[cdxiii] [1940] St.R.Qd. 39, at p. 45.

[cdxiv] [1940] St.R.Qd. 39, at p. 44.

[cdxv](1889) 22 Q.B.D. 577.

[cdxvi] [1957] St.R.Qd. 427, at p. 430.