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O'Hello v Kayel Shipping Co [1980] PNGLR 361 (30 October 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 361 - Jeremiah O'Hello v Kayel Shipping Co 

[1980] PNGLR 361

N262(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JEREMIAH O’HELLO

V.

KAYEL SHIPPING CO. PTY. LTD.

Rabaul & Waigani

Pratt J.

13-15 August 1980

30 October 1980

MASTER AND SERVANT - Common law liability of master for servant - Contributory negligence - Maintenance engineer performing work with forklift in dangerous manner - No evidence of appreciation of danger - Inadvertence not contributory negligence.

DAMAGES - Personal injuries - Particular awards of general damages - Pelvic and hip fractures - Ruptured urethra - Impotency - Six monthly dilations necessary - Some change of personality - Restricted mobility - Continuing discomfort with prolonged silting etc. - Working life reduced by five years - Male marine maintenance engineer aged forty-four (forty-six at trial) married with six children - Award of K42,000 including K22,000 for future loss of earnings.

The plaintiff, a marine maintenance engineer aged forty-four (forty-six at trial) was injured in the course of his employment, when he jumped off a wharf into four feet of water to avoid an out of control forklift, which then landed on top of him pinning his body to the harbour floor. Prior to this accident, the plaintiff had been requested by a fellow employee to give assistance with the forklift, which had stalled, and after repairing it was requested to help lift a large rock which he proceeded to do by lifting it onto the back of the forklift. It was part of the plaintiff’s job to carry out minor mechanical repairs to the forklift, but he had no training in or knowledge of the working of forklifts. It was conceded that there was no (safe) system of work laid down for removing the rocks and that there had been a failure to supervise and it was argued that the plaintiff had been guilty of contributory negligence.

As a result of the accident, the plaintiff, a married man with six children, was rendered unconscious, he suffered a fracture in three places to the pelvis with displacement, a ruptured urethra with consequent need for six monthly dilation for the rest of his life, permanent impotency and some personality change. The plaintiff’s mobility was permanently restricted and he would continue to suffer pain and discomfort particularly with prolonged sitting, standing, bending, climbing ladders etc. and because of recurrent bouts of urinary tract infection and skeletal damage generally his working life would be reduced by five years.

Held:

(1)      The evidence did not support a finding of contributory negligence because inter alia:

(a)      Inadventure on the part of an employee will not of itself amount to contributory negligence;

Hutchinson v. London and North Eastern Railway Company [1942] 1 K.B. 481 referred to.

(b)      To find contributory negligence there must be added to the dangerous nature of what is being done, an ability on the part of a reasonable worker, circumstanced as the plaintiff might be, to appreciate that danger;

Commissioner for Railways v. Halley [1914] ArgusLawRp 117; (1978) 20 A.L.R. 409 at pp. 413, 418 adopted and applied.

(c)      In the circumstances, the plaintiff’s knowledge of forklifts was such that he did not contemplate or appreciate the danger of the situation; what in fact he did do, was a natural and understandable extension of the task in which he had been absorbed; as a result of his absorption or pre-occupation with the task in hand, the accident occurred: such conduct did not amount to contributory negligence.

Carlyle v. Commissioner for Railways [1954] 54 S.R. (N.S.W.) 238 at p. 249;

Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152, and

Commissioner for Railways v. Halley [1914] ArgusLawRp 117; (1978) 20 A.L.R. 409 at p. 412, referred to.

(2)      General damages should be assessed at K42,000 including K22,000 for loss of future earnings.

Trial.

This was the hearing of a claim for damages by an employee of the defendant company for injuries suffered by the plaintiff in the course of his employment.

Counsel:

J. A. Griffin, for the plaintiff.

M. Challinger, for the defendant.

Cur. adv. vult.

30 October 1980

PRATT J.: This action arises from injuries sustained by the plaintiff whilst driving a forklift truck, owned by the defendant company, during the afternoon of 27th September, 1978, in the defendant’s premises in Rabaul. At the time the plaintiff was employed by the defendant company, although the exact nature of his employment is in some dispute. Certainly up until the previous Friday, he had been employed as a shore engineer and his duties concerned mainly the maintenance and overhaul of ships’ engines owned and operated by the company. For several days prior to the accident, rocks had been transported from the Rabaul Quarry to the water’s edge in the defendant’s premises for the purpose of reclaiming some land. Until the day of the accident, these rocks were brought on the tipper trucks belonging to, or employed by Rabaul Quarry. On the day of the accident however, a number of rocks were placed on a flat-topped truck which belonged to, or was being used by, the defendant company and were removed by hand from the truck, and placed in the area being reclaimed.

Some time after lunch on that day the plaintiff was asked by Ben Bubu, a fellow employee, to come across to the truck and give assistance as the forklift which was being used to remove a large flat rock from the tray of the truck had stalled. According to the plaintiff, Ben Bubu said to him: “Can you come over and see what has happened. The engine has stopped and we can’t start it.” The plaintiff then examined the forklift and after obtaining a replacement battery and some jumper-leads managed to bring the engine back to life. As soon as this happened Ben Bubu again spoke to the plaintiff saying: “You try and lift the rock up.” The plaintiff caused the forks to be placed underneath the rock and started to lift it from the tray. According to the plaintiff the engine then stopped and the forklift commenced to move in a reverse direction because of the weight of the rock falling off the fork onto the tray of the truck. The plaintiff says that he tried to apply the brakes but nothing happened and the forklift continued to move backwards with the pedal flat to the floor. It moved, he said, over a distance of some six feet and then fell into the sea. As it was going over the edge the plaintiff jumped into the water. Unfortunately for him, the forklift landed on top, pinning his body to the harbour floor. At that point there was about four feet of water over the sea-bed. The plaintiff apparently passed out and woke up on the land for a short period of time before lapsing again into unconsciousness. It is also apparent from other evidence that assistance came immediately to hand, although the plaintiff was still some three or four minutes in the water. Undoubtedly the prompt assistance, together with the artificial respiration applied by the managing director of the defendant company was responsible for saving the plaintiff’s life. It seems that the protective cage which covers the driving seat on the forklift was the part of the vehicle which pinned the plaintiff to the sea-bed.

The account given by the plaintiff was substantially corroborated by Ben Bubu himself, except for one important difference. According to Ben Bubu, when the forklift went into the sea the engine was still operating. Mr. Foot, an expert called by the defendant company to give evidence as to the mechanical condition of the forklift, is of the view that had the engine stopped, as the plaintiff claims, it would be next to impossible for the forklift to have been propelled backwards whether as a result of bouncing off the side of the truck or the stone falling off the forks. Indeed if the weight of the stone had been too heavy, Mr. Foot states that the back wheels would lift off the ground. If the forklift had suddenly moved forward and struck the side of the truck and then an engine cut-out occurred, the forklift itself might possible go backwards for some distance, but at a very slow pace. He examined the forklift on 20th February, 1979, and states that there were ample indications that the nuts on the wheels had not been interfered with since the time the vehicle had been lifted from the sea-floor. He found no defects in the brake cylinders, the brake lining or the shoes, and there were no leaks in the brake cylinders. His evidence may be summed up by simply stating that the brakes operated properly. I accept the evidence of Mr. Foot and I am therefore led to the conclusion that the brakes were operating “satisfactorily” at the time of the accident. I must also accept the evidence, both because of this witness, and others, that at the time the vehicle reversed from the truck and went over the edge of the sea wall the engine was running.

Mr. Foot did explain the general mechanism of the forklift operation and indicated that where a heavy weight was being lifted, considerable power is required from the engine. Obviously the heavier the weight the more power is needed to operate the lifting mechanism. The same power is also transmitted to the wheels of the forklift so that if the vehicle was in reverse gear at the time it was lifting a load, and the load was suddenly dropped from the fork, there would be a sudden surge back by the forklift which would be initially difficult to control as the brakes on this particular type of forklift truck only operate on the forward wheels and are not particularly efficient when the vehicle is proceeding in reverse.

Herein, I think, lies the answer to what in fact took place on the day of the accident. As I understand Mr. Foot’s evidence, with the sudden loss of weight caused by the rock falling from the forks of the truck, the considerable power being employed to operate the lifting mechanism was suddenly transmitted to the driving wheels. Why the vehicle was in reverse gear is not at all clear, but it is clear that it was so engaged. This reconstruction, is of course, at odds with the plaintiff’s own evidence, but I am not at all surprised in view of the nature of the injuries he received and the speed with which events took place that the plaintiff is in error in attempting his own reconstruction. I do not think that he is basically a dishonest witness.

There is between the defendant company’s manager and the plaintiff a major conflict on the distance which was travelled by the forklift before it went into the sea. According to the plaintiff the distance was about six feet or so. Mr. Ellis, the manager, maintains that the forklift travelled in a semi circle a distance of some thirty-five to forty feet. He came to this conclusion by observing tracks in the dirt which he says were left by the forklift on its journey to the edge of the jetty. Mr. Paton, who was also called by the defendant, puts the distance at some twenty to twenty-five feet, but says it was in a straight line. From the photographs produced in evidence, and bearing in mind the difficulties that one encounters in attempting to assess distance from a photograph, it seems to be that twenty to twenty-five feet might be nearer the mark.

Another area of conflict between the plaintiff and the defendant stems from the condition of the hydraulic brakes on the forklift. As just stated, Mr. Foot is of the opinion that the brakes were not tampered with after the accident and were in good working order. If that was so, then of course the plaintiff is again wrong when he says that he applied the brakes but the pedal went to the floor (if he meant by that he encountered no resistance). Once again, however, I think that the plaintiff may have been in honest error in endeavouring to reconstruct the sequence of events and I am not prepared to draw any adverse inference one way or the other from this particular error. I must, and have found, that the brakes were in good working order, but on the other hand I do not accept the evidence of John Paton, that he saw the plaintiff working on the brakes earlier that day. The plaintiff said in his evidence that he had no knowledge of the hydraulic system used in a forklift vehicle and that it was not part of his duties to attend to the braking systems. He emphatically denies the defence claim that earlier in the morning of that day he had been instructed to attend to the brakes and that, in fact, he had done so. I rather had the feeling that Mr. Paton, who was a second engineer with the defendant company in 1978, and is now a chief engineer with the same company, was endeavouring to do as much as possible to assist his employer. I do not find him a particularly impressive witness. Although part of the plaintiff’s task was to carry out minor repairs on the forklift and on other vehicles used by the defendant company, such work was apparently confined to changing spark plugs, cleaning the carburettor, fixing lights and so forth. I believe that the plaintiff was neither trained, nor had any knowledge of the braking system of a forklift vehicle and that this was no part of his task to perform. He was trained in diesel engines, and more particularly diesel engines used in seagoing vessels. He would certainly have a mechanical aptitude, but a knowledge of the operation of a diesel engine does not of itself indicate that one should have any appreciation of the intricacies of an hydraulic braking system.

The plaintiff is a holder of a certificate of competency as a mechanic grade 1. This certificate is dated 1st July, 1974, and was issued under the then Navigation Act by the Marine Board of Papua New Guinea. On my understanding of the evidence there are a number of grades of mechanic forming one tier, and then there is a more senior certificate issued to various grades of mechanic in a second or more senior tier. The certificate, of course, merely certifies to competency by examination of the plaintiff on marine diesel engines up to 200 h.p. Of itself, it has no relevance to ability or knowledge in relation to motor vehicles or their various systems. He occupies a position therefore in the bottom tier, but I am uncertain as to whether it is on the base or apex.

It is also relevant to establish what functions the plaintiff was required to perform in the course of his work. As I indicated earlier, there is some conflict in this area. The plaintiff says that his second period of employment with the defendant company commenced on 26th July, 1978. There has been produced in evidence a copy of his letter of appointment which shows that his salary was to be at the rate of K320 per fortnight, and that he was employed as an engineer, class 1. His duties “will be that as required within your classification of class 1. In addition, you will be expected to go to sea, if and when required to do so”. In fact, says the plaintiff, he received only K300 per fortnight. The plaintiff’s main task was to attend to the maintenance and functioning of engines of such vessels as were tied up at the Rabaul berth. If an emergency arose that required an engineer at sea, he was then directed to join the particular vessel concerned. According to the plaintiff, he only spent one period of five days at sea between 26th July and the date of the accident. Other tasks which he was required to do included work on the forklift engines if they had trouble. He had some knowledge of driving forklifts. There were three of these vehicles in all, and the plaintiff says that they were not serviced by any one at all following the dismissal from the company of Danny Wong, some three weeks before the plaintiff joined. Generally, the plaintiff has described his tasks as follows: “To help with the engines on shore, and when necessary to help unloading and loading.” He also “got parts for the vehicles at Boroko Motors and Rabaul Garage and there were six trucks on which I did minor repairs”. None of these minor repairs involved work on the braking systems. He had carried out some maintenance on the carburettor and fitted a new muffler to the particular forklift involved in the accident some short time before the accident occurred. During the testing of the engine after this maintenance he says that “the brakes did not appear to be particularly good, but on no occasion was it necessary to apply the brakes hard”.

At the time of the accident the plaintiff says that the manager was in his office, as was the plaintiff’s immediate superior, Mr. Max Ono. Neither of them was attending the unloading of the rocks during the afternoon. The plaintiff also says that the regular forklift drivers had been sacked two weeks before, and that the main forklift driving had been done by Ben Bubu and Max Ono, with himself filling in on the odd occasion. He received no instruction in forklift driving, and had not received any warnings from his employers. In particular, he had not been advised of the braking system, or told that if the vehicle is driven in reverse the brakes are less effective. I accept this evidence and find accordingly.

On Friday 22nd September, 1978, there was a discussion between the defendant’s manager, Mr. Ellis, and the plaintiff concerning reduction in salary. The manager claims that he advised the plaintiff that the company was not satisfied with the quality of his work, and that he was going to be dismissed. According to the manager the plaintiff requested a reconsideration of the matter and asked to be kept on at a reduced salary. The plaintiff on the other hand, denies that there was any mention about his competency or change in his functions, but merely that he was advised of a reduction in salary pending. The manager claims that the plaintiff was found to be incompetent during work at sea, although apparently his work on land was reasonably satisfactory as he was there subject to regular supervision. It is stated that he was put in charge of the general maintenance of motor vehicles and the forklift trucks. However, the plaintiff denies that there was any change in the nature of his employment or the tasks that he was required to undertake, and specifically denies that he was taken off general work involving maintenance and repairs to marine engines and placed exclusively in charge of maintenance for vehicles and forklifts.

It is not without significance that the letter confirming the alleged arrangements between the plaintiff and the manager for the defendant company on Friday, 22nd September was not dated until the 28th, and I think it even more significant that the letter was delivered personally to the plaintiff whilst in hospital on the day immediately following his accident, despite the fact that one would have thought his condition at that stage was extremely serious. I find the motivation and the timing of the dating and delivery of this letter somewhat suspect, to say the least.

On the matter of general supervision over employees of the defendant company, and particularly over the person whose task it was to deposit the rocks on the reclaimed area, it seems quite clear from the evidence that the plaintiff had no real supervisory role at all. The persons obviously in charge of the removal and depositing of the rocks were the plaintiff’s immediate superior, Max Ono and the company’s general manager. As the plaintiff had however obviously some association with the maintenance of the forklift engines, it is not surprising that he was requested by Ben Bubu to detect the cause of the engine failure. I find it equally unsurprising that having succeeded in re-activating the engine, he started to test it. One obvious way to carry out the test was to place the engine under load, and consequently, especially following the invitation by Ben Bubu to “try and lift the rock up”, this is precisely what he did. It is not clear on the evidence whether he intended only to lift the rock, or to lift it and then transport it to the edge of the jetty.

In his final address, counsel for the defendant dealt with a number of points and I do not propose to set out each individual matter. Counsel conceded that there was a failure by Max Ono to supervise, or adequately supervise, the operation of the forklift. It was also conceded that such supervision fell within the duties of Mr. Ono. In the light of the evidence such concession could hardly be avoided. I agree with counsel for the plaintiff however, that what the defendant is trying to do is have a bit both ways. The point is, however, that there was no system at all laid down for the removal of this particular rock, and I agree that it is nothing to the point for the employer to maintain that he had no knowledge of the existence of such rock. He certainly had at least vicarious knowledge, through his more senior supervisor Max Ono. On the one hand the defendant says that there was no lack of care on the defendant’s part, in that this particular type of machine was used rather than any other type. On the other hand he also says that the machine was not meant to be used, and was not intended to be used by the defendant for the purpose of lifting rocks off a truck. What all this highlights is a failure on the part of the defendant firstly to set out a satisfactory system of work for the unloading of the rocks, secondly as a result of inadequate supervision a failure to take into account the possibility of encountering a rock of somewhat unusual shape and size, and thirdly a failure to take into account the possibility that if a rock of more than ordinary weight was encountered during the unloading process the temptation to use the forklift would certainly arise. Furthermore, I am satisfied that adequate warning was not given to the plaintiff on the dangers of using this machine in the way he did use it. He was not trained, or even partly trained as a forklift driver. Such activity was not part of the task allotted to him within the work of the defendant company, although in fact he did fill in from time to time. In a country where demarcation disputes are unheard of, it is not unusual to see a man being utilized in various ways, although his knowledge or expertise in the particular area is minimal indeed. Apart from a restricted degree of knowledge sufficient to permit a certain amount of limited servicing of a forklift, I find that the plaintiff’s knowledge of forklifts was severely limited and I am sure that he did not even contemplate the danger of the situation which was emerging as he commenced to lift the heavy stone off the back of the vehicle. What he was doing was not merely to help his workmates, as pointed out by counsel for the defence, but also, and far more importantly, to help his employer. If for example it was held not to be negligent on the part of the employee to take a deliberate risk in the employer’s interest in such cases as Hutchinson v. London and North Eastern Railway Company[dcxxviii]¹ and other similar cases listed in Munkman’s Employers’ Liability at Common Law (7th ed.), p. 545, then clearly it is even less negligent to do something in the employer’s interest where the risk is not fully or even partially appreciated. There is a whole line of authorities which makes it clear that inadvertence on the part of an employee will not amount to contributory negligence.

The plaintiff was concentrating on the task of assuring himself that the engine would not cut out once more when subjected to a full load. In the process of seeing to this task he was asked to shift the rock, and it would be quite unrealistic to expect that having ensured the apparent operation of the engine, he would at that point in time get down from the driving seat and hand it over to another workmate. What in fact he did do, that is, endeavour to see if he could remove the rock from the back of the vehicle, was a natural and understandable extension of the task in which he had been absorbed. As a result of his absorption or preoccupation with the task in hand, the accident occurred. I cannot understand how such conduct could be said to amount to contributory negligence (see Carlyle v. Commissioner for Railways[dcxxix]² and Caswell v. Powell Duffryn Associated Collieries Ltd.[dcxxx]³.

In my view, what the plaintiff was doing was certainly dangerous. The equipment was quite unsuitable for the task and should never have been used. The load was a heavy and unstable one. It required much power from the engine, with a result that if the load was suddenly shed, all such power was transmitted to the driving wheels if the vehicle happened to be in gear. During the process of lifting the rock from the truck, it is not surprising that the plaintiff did in fact put the forklift into gear, though at that stage he may not have intended to transport it to the edge of the jetty. Any manoeuvring at the side of the truck would have required the forklift to have been placed in gear. Following expert evidence, the court of course appreciates the braking system on a forklift when travelling in reverse is very inefficient, but I doubt that the plaintiff had the benefit of such knowledge. In summary, although the situation was dangerous, I am not at all satisfied that the plaintiff appreciated the danger into which he had placed himself. Max Ono should have appreciated the danger and should have prevented it then and there. He was the senior supervisor concerned with these matters and he failed to act.

It was submitted by Mr. Challinger that a recent High Court decision, Commissioner for Railways v. Halley[dcxxxi]⁴, has produced an extension of common law liability between employer and employee, so that the position in Australia is now one of almost strict liability. With that submission I do not agree. However, even if Halley’s case did extend the principles laid down by the English authorities and therefore extend part of the underlying law in Papua New Guinea, I would adopt such extension as one suitable for the development of the law in this country and particularly suitable for the circumstances of the country. In Papua New Guinea we have a large number of unskilled workers who are subject to varying degrees of efficient and inefficient supervision. We have language difficulties and educational deficiencies. There is therefore a heavy responsibility on the employer to ensure that proper supervision is always employed, and that a proper system of work is laid out. This of course must be conjoined with a necessity to give repeated warnings to cope with the emergence and development of a potentially dangerous situation. For these reasons alone I would adopt the words of Stephen J. where he says[dcxxxii]⁵:

“... what the plaintiff was doing when he was injured was ‘part of the plaintiff’s duties to do’; it was not the result either of any consciously slip-shod approach to his work or of any disobedience to instructions that he was injured. On the contrary it was, if anything, excessive zeal which led him to tackle a job in a way in which no experienced shunter would have done.”

I interpolate at this point, that although the plaintiff’s present case was not completely within the terms of the words used by Stephen J. nevertheless it was one of his tasks to ensure that the motors of the forklift truck were working properly, and to that extent he was carrying out part of his duties. Continuing with the quote from Halley’s case (supra) I particularly emphasise the words of McNair J. as cited by Mr. Justice Stephen:

“In Machray v. Stewarts and Lloyds Ltd.[dcxxxiii]⁶, McNair J. said of an employee who was ‘adopting a course of conduct not for the sake of saving himself trouble but in order to get on with his employer’s business’, that that fact, together with others, made him ‘very slow to put any blame on him’ in the sense of finding any contributory negligence ... A reasonable employee in an occupation involving risks of injury who encounters such a risk in the course of what he reasonably believes to be the proper performance of his allotted task, may, for that reason, be the less likely to appreciate that the risk is not one to which he should submit himself: he may be the less likely fully to recognise the extent of the danger it involves.”

A little further on I find further words of Stephen J. which I adopt[dcxxxiv]⁷:

“However, to find contributory negligence there must be added to the dangerous nature of what the plaintiff did an ability on the part of a reasonable trainee shunter, circumstanced as was the plaintiff, to appreciate that danger.”

The plain fact of the matter in this case was, for reasons best known to themselves, on their own evidence the defendant company had decided to employ the plaintiff in a capacity other than that for which he was trained, and instead of using him as a marine engineer, they decided to direct him into other tasks. Certainly his training as such would have given him a basic knowledge of most engines, but the driving and hydraulics of a forklift has little relevance for a marine engineer class 1.

As I have also indicated, I find that there was a failure to give proper instruction to the plaintiff and consequently I consider the words of Jacobs J. in Halley’s case[dcxxxv]⁸ to be likewise applicable to the circumstances of this case:

“... it appears to me that a finding that the respondent was injured through a negligent failure to instruct him on the particular danger of attempting to carry out the operation which he attempted in the manner which he did hardly leaves room for a finding that he was guilty of contributory negligence in undertaking the operation in the manner in which he did. If it was obvious that he ought not to have done what he did, then it is difficult to see how a failure to tell him was a cause of the injury ... Proper instruction would have disclosed to the respondent that what he did was both highly dangerous and unnecessary in his work. The finding that it was obviously highly dangerous is not a sufficient basis for a finding of contributory negligence in the circumstances of this case. It would need to be established that the respondent knew or ought to have known that it was unnecessary and improper for him to do what he did.”

I am quite satisfied that there was no contributory negligence on the part of the plaintiff, or at least none which could fall within the principles as enunciated both in the English authorities and in the recent decision of the High Court of Australia that I have just referred to.

The injuries suffered by the plaintiff may be roughly placed into the following categories:

1.       Fracture in three places of the pelvis with displacement thereof;

2.       Rupture of the urethra;

3.       Permanent disability insofar as the urethra will require dilation every six months for the rest of his life, and as a consequence of either damage to the pelvis or to the urethra or both, permanent impotency;

4.       Pain and suffering both at the time of the accident and during hospitalization and continuing pain and suffering, but of a much lesser degree;

5.       A twenty percent reduction in life expectancy and also in his working life, due largely to the strong possibility of urethral infection and consequent bladder infection.

The plaintiff was forty-four years of age at the time of the accident and forty-six at the time of the trial. He is a Papua New Guinean national who was born in the Gazmata area. His mother was a Gazmata woman and his father was part Irish and part Filipino. Although he had little formal education, he has, nevertheless, applied himself to learning from observation and from doing, and I have no doubt that he is a reasonably competent mechanic. He was able to pass the necessary examinations in order to obtain his basic marine mechanics certificate. He produced as a witness during his case a Mr. Hampton, who like the plaintiff was also employed at the time of trial in Coconut Products Ltd., Rabaul. Mr. Hampton has known the plaintiff over the past twelve years, both socially and as a co-worker. Prior to the accident they did quite a lot of fishing together. Apparently the plaintiff no longer has any desire to go fishing and in view of the difficulties he has with bodily movement in a small boat, it is not surprising. Mr. Hampton was production supervisor at the same time as the plaintiff was working for the company as a maintenance engineer. The plaintiff’s job involved a considerable amount of activity and he was noted to be a healthy active person who was both punctual and reliable and well thought of as an employee.

I accept there has been some personality change in the plaintiff since the accident. It would indeed be surprising if there were not. I also accept that there have been certain strains introduced into the family circumstances. The plaintiff was married to his present wife in 1959 and has had six children of that union now aged from twenty years to four and a half years. He says, and I accept his evidence, that sexual intercourse had been a regular part of his married life, but this of course is now not possible. This introduces one aspect which I shall deal with forthwith. He was asked by his counsel whether this troubled him or not and the plaintiff replied: “No, I understand the situation.” The statement reminds me of a passage from Lord Pearce’s judgment in H. West & Son, Ltd. and Anor. v. Shephard which reads[dcxxxvi]⁹:

“It would be lamentable if the trial of a personal injury claim put a premium on protestations of misery and if a long face was the only safe passport to a large award ... there is no call for a parade of personal unhappiness. A plaintiff who cheerfully admits that he is as happy as he was, may yet receive a large award for compensation for the grave injury and loss of amenity over which he has managed to triumph.”

One of course does not necessarily accept understatement at its face value. In my view, the very nature of the reply by the plaintiff has impressed me considerably with his general honesty. He has not tried to make anything special out of the tremendous loss which has occurred to him, not only the loss of enjoyment of life but a loss of his general feeling of manliness. It is true that the full effect of this loss may yet be some time in manifesting itself, but I am sure that it is a major setback for him, particularly as he is a man whose pursuits are such as not to fall within the intellectual area, a man who is active and given to physical action and pastimes rather than exercises of the mind.

The plaintiff was admitted to hospital on the day of the accident and discharged on 23rd November, 1978. Following his discharge he recuperated at home and recommenced employment with Morehead Shipping on 14th February, 1979. Apart from the major injuries which I have already set down, he suffers a number of subsidiary aches and pains together with a restriction of movement. I shall not deal with these in detail. Suffice it to say, he has difficulty in moving around a ship’s engine-room, especially if the space is somewhat confined. Further, he has difficulty in bending and lifting heavy objects. He also has difficulty in climbing ladders and finds it painful to sit in one position for any length of time. He is unable to run any distance. To my mind the plaintiff is not a man who exaggerates or maximises his injuries or pains. I adopt his counsel’s description that the plaintiff is indeed a person somewhat given to understatement. All the matters which he has described in court have been supported by his medical witness, Dr. Hamilton, whose evidence impressed me greatly. Indeed, my conclusion that the plaintiff is not given to exaggeration is based not only on the plaintiff’s own demeanour but also on the evidence of Dr. Hamilton. The doctor says that the plaintiff would have experienced considerable pain from the fractured pelvis for about six weeks and that in addition to that, he also suffered considerable pain from the initial two or three dilations of the urethra. Following his discharge from hospital it was necessary for the plaintiff to undergo four or five further urethral dilations, all painful, and he will continue to require such dilations each six months for the rest of his life. The dilations mean that the plaintiff will have to enter hospital for an overnight period which at the present rate works out at K37 per visit. The plaintiff also says that each time he passes urine there is an initial period of pain until the urine commences to pass. Apparently this will continue also for the rest of his life.

The medical evidence also draws attention to the fact that the restriction to the urethra, even with dilation, can cause urinary infection which may pass into the bladder. Two factors which the doctor considers contributes to a loss of expectation of life are:

1.       Recurrent bouts of urinary tract infection with a danger of such infection travelling to the bladder. As I understand the doctor’s evidence, although the bladder infection can be treated each time it occurs, it weakens the bladder and increases the possibility of further infection. He points out also that following the urinary tract infection, there will be general lethargy which will make the plaintiff disinclined to work, especially where that work involves physical activity.

2.       One must also look at the damage to the basic skeletal structure of the pelvis and the urethra and take these into account in the general context of the ageing process. As I understand it, the ordinary process of ageing will be exacerbated as a result of the injuries the plaintiff has sustained to these areas. Another factor to take into account is that in Papua New Guinea specialist equipment, facilities, and personnel, which exist in other countries to deal with urinary tract infection, do not exist here. Obviously this increases the difficulties for a person suffering from urethral problems.

In all the circumstances, I do not think it unreasonable to assess a loss of working life at five years. However, it is clear that the plaintiff is able to obtain employment at a rate similar to that which he was being paid before the wage reduction just prior to his accident. He is restricted in the type of manual work he can do, and he will require some assistance from others if it is necessary to lift heavy objects. Until just before the accident the plaintiff was receiving K300 per fortnight from the defendant company and since returning to work he has held a number of positions with different companies until the present where he is receiving K400 gross per fortnight as an engineer on the mission vessel “St. Theresa”. This compares very favourably with the K300 per fortnight the plaintiff was receiving from the defendant company just prior to the accident. Of course that salary was reduced to K160 per fortnight as and from 25th September, 1978. I accept that there was a reduction in salary but I do not accept that it was for the reasons given by the defendant company. There are a number of unsatisfactory aspects in the evidence of the manager of the defendant company, and I am not persuaded that the reduction was brought about because of dissatisfaction with the plaintiff’s work ability. It seems to be that there was a general tightening of the belt in the company at the time and that this was accompanied by a number of dismissals and in the plaintiff’s case, a salary reduction—a salary reduction probably forced on the plaintiff in order to hold on to a job. As has happened on other occasions, the plaintiff accepted the reduction in salary until he could find a more remunerative area.

The plaintiff’s legal advisers have suggested that he would have found better employment within a period of a fortnight. As defence counsel has rightly pointed out, that is a matter of conjecture, but in view of the defendant’s own admission that marine mechanics in Rabaul are in rather short supply, I do not think that the period would have lasted more than a month. I my view, therefore, the plaintiff correctly submits that his salary during the period of his accident would have been, but for the accident, K300 per fortnight clear but I would give the commencing date for that salary as approximately one month after the accident, say from 1st November, 1978.

Apparently a workers’ compensation form was lodged with the defendant company, but this has not been processed. The defendant continued to pay the plaintiff the reduced salary of K160 per fortnight before tax until the time he recommenced employment with another company in February 1979. Obviously during the period of the first few weeks following recommencement of work, the plaintiff was operating at a much lower capacity and consequently his salary of K100 per fortnight does not reflect the salary he would have received had the accident not taken place. I am therefore prepared to accept the plaintiff’s submission during the course of the trial, concerning an allowance representing the net difference in loss of salary, (taking into account my amendment of two weeks that he would have spent on the reduced employment and extending that to a period of a month) and find that the loss amounts to K1,746.15.

Concerning future loss of earnings, the plaintiff has submitted his figures on the basis of K172 per week (that is K200 per week gross) which I do not consider an unreasonable figure. The figures submitted have been worked out on two bases, one using the six per cent table with the assumption of a remaining working life of twenty years; the other, assuming cessation of work at the age of sixty rather than sixty-five, and thus fifteen years from now he will suffer that loss. I have followed the second system as reflecting a more accurate assessment of the facts. The sum required to produce the then figure of the actual loss of salary is close to K20,000. In both instances the plaintiff has requested that three factors be taken into account in order to round out the suggested amount of K25,000.

They are:

(a)      the possibility of the plaintiff continuing to work after the age of sixty-five;

(b)      time off required to have urethral dilation and convalescing;

(c)      time off due to urinary tract infections.

It is submitted that these factors outweigh such contingencies as earlier death or period of illness unconnected with the injury. Whilst I give some weight to these submissions and therefore make a nominal allowance for them, I consider they fail to give sufficient weight to the ordinary exigencies of life. All in all, I consider that a figure of K22,000 be a proper rounding out figure.

It was mentioned in passing that account might be made of inflation. The view of the common law in England now and that enunciated by the High Court of Australia has had divergences, and so far as I am aware, the High Court of Australia still refuses to take inflation into account. The matter was not really argued before me and considering that if the sum awarded were invested at the proper rate, it could to a large extent meet inflation; I am not prepared, nor do I consider it necessary in this case, to make any ruling on whether or not inflation should be taken into account.

This then brings me to the much more difficult matter of damages in respect of loss of amenities, pain and suffering and particularly the plaintiff’s impotency. This loss of course is a terrible one, particularly to a man who has reached early middle age and who has obviously pursued a vigorous and virile life. In the cultural content of the marriage, the loss of virility will undoubtedly require a great deal of understanding and severe psychological strains will be imposed within the family unit. In addition, he has given up regular fishing, primarily because of the pain created by confinement necessarily imposed on a person when travelling in a small boat. He will continue to suffer pain in the sitting posture and likewise he is no longer able to run with his accustomed vigour. Of course one must take into account that the ordinary ageing process to some extent restricts one’s sporting pursuits and often occasions a more sedentary pastime to be pursued. I accept that there has been some strain already introduced into the family and that the plaintiff has become less involved in family affairs than he did heretofore. Nevertheless, he still has quite a young family and it is to be hoped that the difficulties which he has been facing will be resolved more satisfactorily in the future. He has certainly been making a genuine effort to readjust himself to his new way of life. He will of course continue to have brief pain on passing urine and must look forward to many years of repeated entry into hospital for urethral dilation.

I accept, as indeed I must, the majority decision in Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[dcxxxvii]¹⁰ and therefore I can obtain some assistance from authorities outside Papua New Guinea in endeavouring to establish a fair and just compensation for the matters which I have just outlined. In addition to the cases mentioned by counsel which I list below[dcxxxviii]¹¹, I have also had regard to two other reports: Vassilef v. B.G.C. Marine Services (N.S.W.) Pty. Ltd.[dcxxxix]¹² and The Government of Papua New Guinea v. McCleary[dcxl]¹³. Of course, in considering these authorities one must make due allowance for a conversion from kina to the Australian dollar as Mr. Challinger has pointed out. Nevertheless, as is well known, each case must be examined and decided in the light of its own special circumstances. Not only has the plaintiff suffered a considerable amount but he has a dismal prospect to look forward to of repeated short periods of hospitalization for the rest of his life, together with the ever-increasing possibility of infection. There has been an interference with his freedom of choice on avenues of employment insofar as there are certain vessels now which he could not work because of the confined engine room spaces. There has also been an interference with his leisure pursuits, but the most significant single factor in the circumstances is the onset of impotency. In all the circumstances, I consider an amount of K20,000 to be an appropriate award under this heading.

Counsel for the defendant properly drew my attention to the question of interest on any judgment which I might enter in favour of the plaintiff, and particularly to the judgment of Mr. Justice Wilson in the matter of Aspinall v. The Government of Papua New Guinea and Terence John Aspinall[dcxli]¹⁴. The question of interest was not argued before me, and for that reason I propose in this matter to follow the decision of my brother judge without necessarily committing myself to that course on future occasions. One reason for this is the fact that some considerable reliance appears to be placed by his Honour on the New South Wales case of Bennett v. Jones and Anor.[dcxlii]¹⁵. That case discloses quite clearly a divergence of views between the courts in New South Wales and the courts of the United Kingdom. In either case, I am also unhappy with a practice which requires me to divide pain and suffering for the purpose of assessing interest into a figure which represents the period from the date of accident to the date of trial, on the one hand with a balance representing future loss for pain and suffering. It seems to me that the procedure is somewhat arbitrary, at least in a case such as the present. I appreciate that the awarding of interest is a discretionary matter but in the absence of argument from both sides, I propose to follow at this stage the authorities which dictate such arbitrary allocation and for the purpose of the exercise I nominate K5,000 from the overall figure of K20,000 as representing that period from date of accident to date of trial. On this figure I award interest at the traditional rate of four per cent. Thus the amount for interest over a period rounded to twenty-three months gives a final figure of K383 as interest. The amount of interest on the salary difference for the same period is of course calculated on the basis of eight per cent and I thus arrive at a figure of K268. In relation to the amount of special damages I am not at all sure that this sum has yet been paid. In the absence of clear evidence in relation to this figure, I do not propose to award interest. The final awards which I therefore make are as follows:

I therefore order judgment for the plaintiff in the sum of K46,296.15.

The plaintiff was represented by counsel from Brisbane. The court was greatly assisted by the manner and form of presentation, both of argument and examination in chief and cross-examination. I do not propose to make any comments on the submission that adequate representation was available for the plaintiff in Rabaul. I wish to state that at this stage of the development of the legal profession in Papua New Guinea, I think it highly undesirable to place any difficulties in the way of employing southern counsel, both from the point of view of the parties and the court, as well of course the assistance in developing the legal profession within this country. One must bear in mind particularly that the profession in Papua New Guinea is a fused profession and even those firms which engage in a considerable amount of litigation still do not have any particular person who is regularly in court on a day to day basis. Of course I must bear in mind the guidance given by the Supreme Court in the decision of Jordan v. Edwards[dcxliii]¹⁶. Although the judgment of Prentice C.J. contains several comments upon which I express some hesitation, it seems to be that the ratio of the three judges has been stated by the Chief Justice in that part of his judgment where he sets out the principal factors which should be taken into account when deciding whether an exception should be made to the rules or not. In the light of these particular factors I consider that this trial did contain certain areas of difficulty both in law and on the facts and because of the nature and extent of the injuries involved. I would therefore certify that the briefing of southern counsel by the plaintiff was proper and justified under the Rules.

Judgment and orders accordingly.

Solicitors for the plaintiff: Warner Shand Wilson and Associates.

Solicitors for the defendant: Young and Williams.

[dcxxviii] [1942] 1 K.B. 481.

[dcxxix] [1954] 54 S.R. (N.S.W.) 238 at p. 249.

[dcxxx] [1940] A.C. 152.

[dcxxxi] (1978) 20 A.L.R. 409.

[dcxxxii] (1978) 20 A.L.R. at pp. 412-13.

[dcxxxiii] [1964] 3 All E.R. 716 at p. 721.

[dcxxxiv] (1978) 20 A.L.R. at p. 413.

[dcxxxv] (1978) A.L.R. at p. 418.

[dcxxxvi] [1963] UKHL 3; [1963] 2 All E.R. 625 at p. 645.

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

[dcxxxviii] (1979) A.L.M.D. 1582-3, 3428, 4478; (1979) A.L.M.D. 1300; (1978) A.L.M.D. 2309.

[dcxxxix] [1980] Qd. R. 21.

[dcxl] [1976] P.N.G.L.R. 321.

[dcxli] [1980] P.N.G.L.R. 50.

[dcxlii] [1977] 2 N.S.W.L.R. 355.

[dcxliii] [1979] P.N.G.L.R. 420.