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Brown v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 409 (3 November 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 409 - Robert Brown v MVIT 

[1980] PNGLR 409

N274

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ROBERT BROWN

V

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST

Waigani

Bredmeyer AJ

27-28 August 1980

3 November 1980

NEGLIGENCE - Duty of care - Injuries to passengers - Defence of no breach of duty - Standard of care - Standard objective - Standard of skilled, experienced and sober driver - Passenger’s knowledge of driver’s incapacity not relevant to standard of care - Passenger with knowledge that driver affected by liquor or liquor and marijuana - Defence rejected - Common law applied.

NEGLIGENCE - Contributory negligence - Injuries to passengers - Meaning of “contributory negligence” - Drunken driver situation - Carelessness for own safety in accepting lift - Apportionment under Law Reform Miscellaneous Provisions Act s. 22[dclxx]¹.

NEGLIGENCE - Road accident cases - Action - Defences - Contributory negligence - Volenti non fit injuria - Statutory provisions to take precedence over common law - Defence of contributory negligence to be applied to facts first.

DAMAGES - Personal injuries - Particular awards of general damages - Neck injury - Dislocated fracture at C2-C3 - Treated with calipers and skull traction - Occasional headaches - Sense of stiffness and tired feeling in neck - Inability to participate in sport or lift heavy objects - Male aged twenty-seven (twenty-nine at trial) - Assessment of K18,000 general damages.

The plaintiff twenty-seven (twenty-nine at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The plaintiff was a passenger in a motor vehicle driven by a woman who admitted that prior to the accident she had drunk eight bacardi/cokes and smoked some marijuana. The defendant raised the defences (1) no breach of duty by the driver as the plaintiff knew the driver was adversely affected by alcohol and drugs and therefore could only expect the standard of care from one so affected; (2) volenti non fit injuria; and (3) contributory negligence.

The principal injury suffered by the plaintiff was a dislocation fracture of the second and third cervical vertebrae. Treatment included three weeks in calipers with skull traction, which resulted in indent scars in the skull, followed by three months in a semi brace, then a cervical collar. The residual disabilities included a sense of stiffness and a tired feeling in the neck with occasional headaches, and an inability to engage in sporting activities such as tennis and rugby, or to lift heavy objects.

Held

(1)      The standard of care to be attributed to the driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver: it makes no difference if the driver is drunk, deaf, one-eyed or inexperienced, and it makes no difference to the duty of care owed to passengers, if a passenger knows the driver to be drunk etc.

Nettleship v. Weston [1971] EWCA Civ 6; [1971] 2 Q.B. 691 at pp. 699, 700-701 adopted and applied;

R. v. Evans [1963] 1 Q.B. 412 at p. 418 referred to.

The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 C.L.R. 39 not followed.

(2)      In the circumstances, there was a duty of care owed to the plaintiff to drive with the skill and care of a competent, experienced and sober driver; and this duty of care had been breached resulting in injury to the plaintiff.

(3)      Where the defences of contributory negligence and volenti non fit injuria are raised together, the defence of contributory negligence being a statutory defence, is, according to the source-of-law provisions in the Constitution, (s. 9, Sch. 1.2 and Sch. 2.2), to be applied to the facts before a doctrine of common law.

(4)      “Contributory negligence” is a failure to take reasonable care for one’s own safety: in the context of a passenger and a drunken driver it means the passenger’s carelessness for his own safety in accepting a lift and thereby exposing himself to the obvious risk of injury that can reasonably be expected from the driving of a drunken driver.

(5)      In accepting a lift from a driver whom he knew before he entered the car was affected by liquor, or liquor and marijuana, and whose driving ability was likely to be impaired thereby, the plaintiff was guilty of contributory negligence.

(6)      Applying s. 22 of the Law Reform (Miscellaneous Provisions) Act 1962, to the circumstances, it was just and equitable to reduce the damages recoverable by the plaintiff by fifteen per cent.

(7)      Having found the plaintiff guilty of contributory negligence, which as a statutory provision takes precedence over a doctrine of common law, the common law doctrine of volenti non fit injuria need not be considered, except in cases where the court finds the passenger wholly to blame; and semble where the passenger expressly consents to the risk of injury.

(8)      General damages should be assessed at K18,000.

Trial

This was an action in which the plaintiff claimed damages for personal injuries suffered in a motor vehicle accident which occurred in May 1978.

Counsel

I. Molloy, for the plaintiff.

M. Challinger, for the defendant.

Cur. adv. vult.

3 November 1980

BREDMEYER AJ: Robert Brown, aged twenty-nine, now of Brisbane but formerly of Arawa, was injured in a motor vehicle accident at Arawa on 26th May, 1978. He was a passenger in a motor vehicle being driven by Margaret Thornton — a Tolai woman married to a European — which failed to take a corner and overturned. The plaintiff has sued the Motor Vehicles Insurance (P.N.G.) Trust for damages. The plaintiff gave oral evidence as to the accident, his injuries, treatment and present disabilities and on his economic loss. Four medical reports were tendered on his behalf without objection. The defendant called one witness, Margaret Thornton, the driver of the vehicle concerned. She gave evidence that prior to the accident she had drunk eight bacardi/cokes and smoked some marijuana. She said she was driving too fast, that she was drunk, and that she failed to take a corner. After the accident she told the police she was drunk and pleaded guilty to a charge of driving under the influence of liquor. On her own evidence she was clearly driving the vehicle negligently.

The defendant has raised three defences to this action. The first is that that there was no breach of duty by the driver as the plaintiff knew the driver was adversely affected by alcohol and drugs and therefore could only expect the standard of care from one so affected. The second defence was that of volenti non fit injuria: that even if the driver owed and breached a duty of care to the plaintiff, the plaintiff cannot recover because he knew the driver was affected by liquor and drugs and voluntarily consented to or accepted the risk of injury. The third defence, in the event that the first two defences should fail, is that the plaintiff was guilty of contributory negligence and that his damages should be reduced under s. 22 of the Law Reform (Miscellaneous Provisions) Act 1962.

THE PLAINTIFF’S KNOWLEDGE OF THE DRIVER’S INCAPACITY

The key factual issue in dispute in this case is whether the plaintiff knew, or ought to have known, of Margaret Thornton’s impaired ability to drive. The broad outline of the movements of the plaintiff and Margaret before the accident is not in dispute. They were together at the Arawa Club from about 7 p.m. to 10.30 p.m. drinking and playing darts in a darts team. Thereafter they attended a party in a friend’s house in Arawa. They had further drinks there and during the party Margaret vomited. They left the party together at 2 a.m. in Margaret’s car. Shortly afterwards the accident occurred. The questions in dispute are: How many drinks did Margaret have during the evening? Did she smoke marijuana at the party? Was she adversely affected by the drink and marijuana? If so, did the plaintiff know, or ought he to have known of her intoxication and incapacity to drive?

His Honour then reviewed the evidence in a part of the reasons for decision not published here and made the following findings of fact:

1.       That Mrs. Thornton had five bacardi/cokes at the club and at least one more bacardi/coke at the party.

2.       That she did smoke marijuana at the party as stated in her evidence.

3.       That she vomited at the party apparently as a result of smoking the marijuana.

4.       That the plaintiff knew she smoked marijuana at the party.

5.       Mrs. Thornton was visibly affected by the drink or drink and marijuana when she left the party.

6.       The plaintiff said “You don’t look good I’ll drive the car”. She said “No it is my husband’s car I will drive ...” as related in her evidence.

7.       At that stage the plaintiff knew that she was affected by liquor or liquor and marijuana and that her driving ability was likely to be thereby impaired.

NO BREACH OF DUTY

The first defence, that there was no breach of duty owed to the plaintiff because the plaintiff knew that the driver was affected by liquor or liquor and drugs, came from the decision of the High Court of Australia in the Insurance Commissioner v. Joyce [dclxxi]². The defence is that if the passenger knows the driver to be drunk he can only expect the degree of care to be achieved by a drunken driver and he can have no cause of complaint because there has been no breach of duty to him. As Latham C.J. put it in that case[dclxxii]³, “In the case of a drunken driver all standards of care are ignored. The drunken driver cannot even be expected to act sensibly. The other person simply chances it.” Dixon J. in the same case said at[dclxxiii]⁴, “(If the passenger) knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition because it involves no breach of duty.”

This defence that the driver does not breach a duty of care to a passenger if the passenger knows him to be drunk has been pleaded in subsequent Australian cases namely Roggenkamp v. Bennett [dclxxiv]⁵; Dodd v. McGlashan [dclxxv]⁶; Duncan v. Bell [dclxxvi]⁷, and Jansons v. The Public Curator of Queensland [dclxxvii]⁸. In each of those cases the three defences were pleaded, no breach of duty, volenti non fit injuria, and contributory negligence, as was contended by the defendant in this case.

There have only been two reported English decisions on drunken drivers and willing passengers and in neither of them was it pleaded that the driver did not breach a duty of care, see Dann v. Hamilton [dclxxviii]⁹, and Owens v. Brimmell [dclxxix]¹⁰. The defence is not part of the English common law. In choosing between the Australian and English authorities on this point I am required under Sch. 2.2 of the Constitution to apply the English common law in force at Independence Day. I do not regard the English common law on the topic as inapplicable or inappropriate to the circumstances of Papua New Guinea. I can thus ignore the Australian authorities but in deference to counsel who researched and argued the law well I desire to say why I prefer the English position to the Australian one. The English and Australian common law is clear that a driver owes a duty of care to his passengers and to pedestrians and other road users. As Lord Denning said in Nettleship v. Weston[dclxxx]¹¹ the standard of care is an objective one measured by the standard of a skilled, experienced and careful driver:

In the civil law if a driver goes off the road on to the pavement and injures a pedestrian, or damages property, he is prima facie liable. Likewise if he goes on to the wrong side of the road. It is no answer for him to say: “I was a learner driver under instruction. I was doing my best and could not help it.” The civil law permits no such excuse. It requires of him the same standard of care as of any other driver. “It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question”: see Glasgow Corporation v. Muir[dclxxxi]¹² by Lord Macmillan. The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eye-sight and hearing, and is free from any infirmity: see Richley (Henderson) v. Faull. Richley, Third Party[dclxxxii]¹³ and Watson v. Thomas S. Whitney & Co. Ltd. [dclxxxiii]¹⁴.

By way of analogy, this objective standard of care also exists in the criminal law. In R. v. Evans[dclxxxiv]¹⁵ the Court of Criminal Appeal said:

(If) a driver in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive, or even doing his incompetent best. Such considerations are highly relevant if it ever comes to sentence...

In the tort of negligence a driver owes a duty of care to his passengers, pedestrians and other road users and, as I have said, it is an objective standard, that of a competent, experienced driver. It makes no difference if the driver is drunk, deaf, one-eyed or inexperienced. If his driving falls below that objective standard of care and he injures his passenger, for example, he has breached that duty of care and is liable to pay damages.

The English position is that the driver’s duty to take care does not depend on the passenger’s knowledge of the driver’s incapacity. It does not matter if the passenger knew the driver to be drunk or one-eyed or deaf, the driver owes him a duty to drive with the skill and care of an experienced, competent, and I would add, sober, driver. Nettleship v. Weston [dclxxxv]¹⁶. The passenger’s knowledge of the driver’s condition or ability is irrelevant to the existence of the duty of care and the breach of it. As I understand the English authorities, it is only when the duty of care has been established and breached that the defence of volenti non fit injuria can be considered. As Lord Diplock said in Wooldridge v. Sumner and Anor.[dclxxxvi]¹⁷ the maxim volenti non fit injuria presupposes a tortious act by the defendant, and it states a principle of estoppel, originally applicable to a Roman citizen who consented to being sold as a slave.

The Australian cases stemming from Joyce’s case are to the effect that the duty of care that a passenger can expect from a driver depends on the passenger’s knowledge of the driver’s condition. If the passenger knows the driver is drunk or has lost a limb or an eye he cannot expect the same duty and standard of care as from a driver who does not suffer from these defects. I consider that this view of the law is wrong and has been effectively criticized by Lord Denning M.R. in Nettleship v. Weston [dclxxxvii]¹⁸.

“We have all the greatest respect for Sir Owen Dixon, but for once I cannot agree with him. The driver owes a duty of care to every passenger in the car, just as he does to every pedestrian on the road: and he must attain the same standard of care in respect of each. If the driver were to be excused according to the knowledge of the passenger, it would result in endless confusion and injustice. One of the passengers may know that the learner driver is a mere novice. Another passenger may believe him to be entirely competent. One of the passengers may believe the driver to have had only two drinks. Another passenger may know that he has had a dozen. Is the one passenger to recover and the other not? Rather than embark on such inquiries, the law holds that the driver must attain the same standard of care for passengers as for pedestrians. The knowledge of the passenger may go to show that he was guilty of contributory negligence in ever accepting the lift—and thus reduce his damages—but it does not take away the duty of care, nor does it diminish the standard of care which the law requires of the driver: see Dann v. Hamilton[dclxxxviii]¹⁹ and Slater v. Clay Cross Co. Ltd. [dclxxxix]²⁰.

I would only add this: If the knowledge of the passenger were held to take away the duty of care, it would mean that we would once again be applying the maxim: ‘Scienti non fit injuria.’ That maxim was decisively rejected by the House of Lords in cases between employer and workmen; see Smith v. Baker & Sons [dcxc]²¹: and by Parliament in cases between occupier and visitor: see section 2(4) of the Occupiers’ Liability Act 1957, overruling London Graving Dock Co. Ltd. v. Horton[dcxci]²². We should not allow it to be introduced today in motor car cases even though it was backed by Sir Owen Dixon. But that was in 1948. He might think differently today.”

Applying the English common law to the first defence argued in this case I consider that the defence fails. The driver, Margaret Thornton, owed a duty of care to her passenger, the plaintiff, to drive with the skill and care of a competent, experienced and sober driver. She failed to attain that standard of care because she was affected, and her driving ability was impaired, by the alcohol or the alcohol and marijuana she had taken, and because she drove too fast. The plaintiff was injured as a result of her bad driving. She thus breached her duty of care to the plaintiff.

I turn now to the other two defences: contributory negligence under s. 22 of the Law Reform (Miscellaneous Provisions) Act 1962 (par. 3 of the defence) and volenti non fit injuria (par. 5 of the defence). These defences were pleaded in that order, although argued in the reverse order, and I propose to consider the contributory negligence defence first. I consider that I am bound to do so. The contributory negligence defence is a statutory defence whereas the volenti defence is a doctrine of common law. Under the source-of-law provisions in the Constitution I am required to apply a statutory provision to the facts before applying a doctrine of common law[dcxcii]²³.

CONTRIBUTORY NEGLIGENCE

Section 22 of the Law Reform (Miscellaneous Provisions) Act 1962 provides:

... where a person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage.

In s. 21 of the Act the word “fault” is defined “unless the contrary intention appears” as meaning “negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Part, give rise to the defence of contributory negligence”.

Sections 21 and 22 come under the heading “Part IX — Contributory Negligence” of the Law Reform (Miscellaneous Provisions) Act and as has been pointed out by Professor Fleming the word “negligence” in the phrase contributory negligence has a different meaning from its use in the tort of negligence[dcxciii]²⁴. Negligence in the phrase contributory negligence — and, I would add, in the definition of “fault” above — means a failure to take reasonable care for oneself, not necessarily for others. A man who stumbles into an excavation can be guilty of contributory negligence although he could not conceivably have hurt anyone but himself. Then the word “contributory” in contributory negligence does not necessarily mean that a plaintiff’s negligence contributed to the cause of the accident. Often it does, as in the example of the man who stumbles down an unfenced excavation or where two vehicles collide and each driver is driving negligently; but a passenger who negligently fails to wear a seat belt does not contribute to the cause of the accident although his failure may contribute to the extent of his injuries, and a passenger who accepts a lift from a drunken driver does not causally contribute to the accident which may ensue.

Contributory negligence is a man’s carelessness in looking after his own safety. In the context of a passenger and a drunken driver, it means the passenger’s carelessness for his own safety in accepting a lift and thereby exposing himself to the obvious risk of injury that can be expected from the driving of a drunken driver. If the passenger is injured as a result of the negligent driving of the driver it can be said that he has suffered damage “as the result partly of his own fault”.

Different cases have assessed the degree of fault on the part of the passenger who knowingly accepts a ride from a drunken driver differently. In Dodd v. McGlashen [dcxciv]²⁵, the judge thought the passenger ten per cent at fault; in Owens v. Brimmell[dcxcv]²⁶ twenty per cent at fault; in the Canadian case of Car and General Insurance Co. Ltd. v. Seymour and Maloney[dcxcvi]²⁷ twenty-five per cent at fault; in Motor Vehicles Insurance Trust v. Wilson[dcxcvii]²⁸ — a case of a pillion passenger on a motor bike — 33.3 per cent at fault; in Duncan v. Bell[dcxcviii]²⁹ fifty per cent at fault; and in a recent Canadian case, Crossan v. Gillis et al[dcxcix]³⁰ also fifty per cent at fault. These cases are examples of courts exercising a discretionary power to apportion negligence as applied to the different facts of each case and it is not necessary to reconcile them. But as a rough rule of thumb I consider the greater the driver’s intoxication and the passenger’s knowledge of the driver’s intoxication (or his reckless indifference to it because he is himself intoxicated) the greater the negligence on his part. I have already found that the plaintiff knew before he entered the car that Margaret Thornton was affected by liquor or liquor and marijuana and that her driving ability was likely to be impaired thereby. She was not however blind drunk, she was not as drunk as she could have been. Applying s. 22 of the Act to the circumstances of this case I consider it just and equitable to reduce the damages I propose to award to the plaintiff by fifteen per cent.

VOLENTI NON FIT INJURIA

Having found the plaintiff guilty of contributory negligence under s. 22 of the Law Reform (Miscellaneous Provisions) Act, which as a statutory provision takes precedence over a doctrine of common law, I do not have to consider the common law defence of volenti non fit injuria. I should think that the statutory defence of contributory negligence giving rise to an apportionment of damages would cover nearly all factual situations where the passenger knew the driver was drunk. If a driver is drunk and his driving ability is impaired thereby and he has an accident then he is liable in negligence for his poor driving. His poor driving is at least partly to blame for the accident. A plaintiff’s contributory negligence in theory can be as high as ninety-nine per cent and has in practice been held to be as high as ninety per cent in one case[dcc]³¹ and ninety-five per cent in another[dcci]³². If the passenger knows the driver is drunk then he is partly to blame. If the passenger has persuaded the driver to drink more than he should have then the passenger’s share of the blame would increase. It would be a rare case indeed, say where the passenger had induced a simpleton to get drunk and persuaded him to drive, that a court would find the passenger more than partly to blame. As a matter of law the court must consider the contributory negligence defence first and it seems to me that it is only where the court finds the passenger more than partly to blame, in other words finds him wholly to blame, that the volens defence would apply. I leave aside the case where the passenger expressly consents to risk of injury in which case the volens defence would apply to estop the passenger succeeding in his claim.

In case I am found wrong on appeal in my understanding of the contributory negligence defence and its relation to the volenti defence I now turn to consider the volenti defence separately. I take the law to be accurately stated by Asquith J. in Dann v. Hamilton [dccii]³³:

After much debate I have come to the conclusion that ...the plaintiff, by embarking in the car, or re-entering it, with knowledge that through drink the driver had materially reduced his capacity for driving safely, did not impliedly consent to, or absolve the driver from liability for any subsequent negligence on his part whereby she might suffer harm. There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maximum “volenti non fit injuria” would apply, for in the present case I find as a fact that the driver’s degree of intoxication fell short of this degree.

I find on the facts of this case that Mrs. Thornton’s degree of intoxication fell short of that extreme and glaring degree referred to by Lord Asquith and that the plaintiff by accepting the lift did not impliedly consent to or absolve the driver from liability for her driving. The defence fails.

PAIN AND SUFFERING, LOSS OF AMENITIES ETC.

The plaintiff suffered a dislocation fracture of the second on the third cervical vertebrae on 26th May, 1978. He was immediately hospitalized for a day or two at Arawa Hospital and then placed on a stretcher and flown to Sydney and admitted to the Royal North Shore Hospital. The plaintiff says he underwent an operation at Arawa and had calipers inserted in his skull and he was flown to Sydney with them so affixed. The report from the Medical Superintendent of the Royal North Shore Hospital said that he arrived from New Guinea in a soft neck collar and Bottrill Calipers were applied on 1st June, 1978. The conflict of evidence is of no consequence; suffice it to say that shortly after the accident the calipers were inserted by an operation, weights were attached to them and the plaintiff’s skull was put in traction. The sites where the calipers were inserted became infected and by another operation they were attached to another place in his skull. He was in traction with the calipers affixed for about three weeks. These operations have left four indent scars in his skull which are not normally visible as covered by his hair. For the fourth and last week in hospital he was put in a semi-brace.

The plaintiff was discharged from hospital in the semi-brace and wore it twenty-four hours a day for three months. During this period his ex-wife visited him once a week to help bath him. The brace was not removed for bathing. Immediately after the accident the plaintiff was in moderate pain and this, I assume, continued during the three week period of traction. He was, of course, in acute discomfort being unable to move. He did not complain to me of pain during the three months he wore the semi-brace and he said at the end of that period his neck felt quite good, felt no great pain but he was physically weak through not exercising. He was also in acute discomfort during the period he wore the brace. He said he began to smell through not bathing. His skin was cleaned with meths and the brace chafed on his skin. In mid-September 1978 the brace was removed and he wore a surgical collar for two to three weeks. He was allowed to remove this every four hours in order to do some neck exercises. On 16th October, 1978 he commenced work.

In giving evidence on his pain and suffering and disabilities the plaintiff impressed me as a truthful witness and a stolid fellow. I did not get the impression that he was exaggerating his pain and suffering and disabilities. He has adopted a positive attitude to his injury and suffering and this no doubt has contributed to his good recovery. He does not suffer from any functional overlay. To go back a little he was in moderate neck pain which diminished during the three-and-a-half months of neck immobilization. He was in acute discomfort during the same period from the traction and semi-brace and to a lesser extent whilst he wore the collar. He said he got headaches when the brace was removed and he had to support his head himself but these eased when he wore the collar. He could not drive a car whilst in the brace or collar nor play sport or do much except walk about. He had occasional pains around the ear and down the side of the neck.

After the collar was removed he could not play sport nor lift anything heavy. His neck movements were restricted. Before the accident he played tennis regularly also swam regularly and played an occasional social game of rugby. Since the accident he has tried tennis on three occasions but within five minutes he had to stop through headaches and dizziness. He has not swum since the accident but thinks he would probably be alright if he tried it. He has understandably not played any rugby. I observe that the plaintiff has a strong, athletic build and looks a sporting type of man.

Since the collar has been removed the plaintiff has had occasional headaches associated with the neck. He gets them if he over exerts himself or lifts heavy objects. At work he takes care to avoid lifting heavy objects. He also has a sense of stiffness and a tired feeling in the neck most of the time. He says there is a tingling in his little fingers. The four medical reports from Dr. Gallaher, the plaintiff’s surgeon in Brisbane, are that his condition is stable and is not likely to get any better or worse. The x-rays show that the cervical spine is stable but nerve roots were damaged by the trauma and there is some residual irritation of these roots producing the symptoms of stiffness, tiredness, headaches and tingling. His main disabilities are that he is unable to play tennis which he used to play once a week, rugby which he used to play on odd occasions, and he cannot lift heavy objects.

I am required by the Supreme Court decisions of Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz[dcciii]³⁴ and Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[dcciv]³⁵ to provide a fair compensation to accord with the plaintiff’s needs. I have been assisted by comparable Australian verdicts on quantum. I consider that the plaintiff suffered only moderate neck pain after the accident, but for a period of four months after the accident whilst in traction and the brace, and to a lesser extent, the collar, he suffered acute discomfort. Since commencing work in October 1978 his pain and suffering stemming from the injury, as manifested in the symptoms mentioned above, have not been very great. As mentioned in the preceding paragraph he does suffer some minor pain and discomfort. His main disabilities are his inability to play tennis and rugby and to lift heavy objects. I consider that a fair award for his past, present and future pain and suffering, restriction of physical activities, loss of amenities and enjoyment of life to be K18,000.

LOSS OF WAGES ETC

The plaintiff was employed under a contract with Morgan Equipment in Bougainville as a spare parts manager, which was due to expire in mid-September 1979. I am not satisfied on the balance of probabilities that he would have renewed his contract after that date and therefore his loss of wages will be taken from the date of accident, 26th May, 1978 to 15th September, 1979.

In Kieta his net wages were K172 per week. In addition he had free use of a company car, value say K20 per week, and six free meal tickets per week, value K2 each. The total value of wage including car and meal tickets was thus K204 per week. He was off work after his injury for twenty and a half weeks until 16th October, 1978. He claims for this period loss of net wages 20.5 X K172 = K3,526 plus loss of holiday pay. Holiday pay was accruing at the rate of four weeks for every forty-eight weeks worked and the sum claimed is thus 20.5 X 4/48 X 172 = K293.83. He also claims loss of meal tickets 20.5 X 12 = K246. I allow these three claims for this period and they total K4,065.83.

As the plaintiff was hospitalized for part of this period and then his neck was in a collar he was unable to drive and he does not claim for the loss of the value of the company vehicle for this period. He does claim, however, K60 spent on taxis and public transport for his transport expenses including visiting doctors during this period. This was conceded by the defendant’s counsel and included in the agreed special damages of K1,749.10 mentioned below. Shortly after his discharge from hospital the plaintiff moved into his own house in Brisbane and claims K30 for electricity paid during this period. As I have no note in his evidence that he was getting free electricity in Arawa. I disallowed this sum.

From 16th October, 1978 to 30th November, 1978 the plaintiff worked for a firm called Ransome in Brisbane at a net salary of $134.50 or K103.46 per week. (I have used the conversion rate of $1.3 Australian dollars = K1 here and throughout this part of the judgment). He was not supplied with a car or meal tickets. He was unable to get immediate employment with Morgan Equipment. The difference between this wage K103.46 p.w. and his pre-accident wage (including vehicle) of K204 p.w. was thus K100.54 p.w. His loss for this six weeks was thus 6 X K100.54 = K603.24.

On 30th November, 1978 he was employed by Morgan Equipment in Brisbane. No jobs were available to him with that company in Papua New Guinea. His wage was $201.92 per week gross which came to $164 or K126.15 per week net after deduction of tax and superannuation. No vehicle or meal tickets were supplied. His loss between that wage K126.15 per week and his pre-accident wage K204 per week was K77.85 per week. That continued for twenty-two weeks until 30th April, 1979. His loss for that twenty-two weeks is thus 22 X K77.85 = K1,712.70.

On 30th April, 1979, he was given the use of a company vehicle by Morgan Equipment worth say K20 per week. The value of his wages plus car increased to K146.15 per week and the difference between that and his pre-accident pay decreased to K57.85 per week. From 30th April, 1979 to 1st August, 1979, when he got a promotion and salary rise, is thirteen weeks. His loss for that period is thus 13 x K57.85 = K752.05.

The plaintiff said that in August 1979 he got a promotion to $11,500 per annum or $221.15 per week gross. He did not give the exact date of this promotion and as he has the onus of proof I must assume against him that it was on 1st August. He does not recall the net weekly wage then but I estimate by comparison with his previous gross and net that his net wage would be equivalent to K138.15 per week. So the value of his wage plus car from 1st August, 1979, was thus K158.15 jer week and the difference between that and his former Papua New Guinea wage of K204 was thus K45.85 per week. From 1st August, 1979 to mid-September 1979 when his Papua New Guinea contract was due to expire is say seven weeks and the loss for that period is thus 7 X K45.85 = K320.95.

The plaintiff claims for loss of superannuation benefits. He belonged to Morgan Equipment’s superannuation fund and when he left Bougainville for hospital treatment in Sydney the company terminated his services and paid out his entitlement of $2,616 from the superannuation fund. The plaintiff presumably rejoined the fund when he commenced employment again with Morgan Equipment on 30th November, 1978. He was thus not contributing to the fund for a period of six months. He said he thought that moneys in the fund earned interest at four per cent per annum. The plaintiff has not been able to prove what loss, if any, he suffered because of this. He had the benefit of the pay-out of $2,616 for that six-month period and could have invested it at a better interest rate than four per cent per annum. No evidence has been led as to what contribution the employer made to the fund. I find this claim for loss unproved.

Whilst the plaintiff worked in Papua New Guinea his Brisbane house was rented out at $50 per week. Because of the accident he returned to Australia and lived in the house as from 14th July, 1978, he therefore claims that loss as loss of earnings caused by the accident. The defendant does not challenge this but I query the amount. The gross rent would not be all profit. Part of it would go in outgoings such as land rates, repairs, and commission on collecting the rents. I propose to deduct a modest $10 per week for these items. The plaintiff will thus recover $40 (K30.76) per week from 14th July, 1978 to mid-September 1979 = 61 weeks X K30.76 = K1,876.36.

The total loss of wages and rent is K9,331.13.

When the plaintiff was discharged from hospital he wore a neck brace twenty-four hours a day and continued to wear it until mid-September 1978. During this period his ex-wife came and bathed him say twelve weeks for two hours each time. Although he did not pay her he is entitled to recover for her services which would otherwise have had to be performed by a paid person, on the authority of Griffiths v. Kerkemeyer[dccv]³⁶ and I allow K100 for these services. I add this to the agreed medical expenses of K1,749.10 to make a total of K1,849.10 medical expenses.

INTEREST

Interest is claimed on the damages under s. 42 of the Law Reform (Miscellaneous Provisions) Act 1962. The principles governing the award of interest under that section have been well expressed by Mr. Justice Wilson in Aspinall v. The Government of Papua New Guinea[dccvi]³⁷ and I propose to apply them to the awards made above.

I have to determine the date or dates from which interest should run. In this case the writ was issued on 4th April, 1979 eleven months after the accident on 26th May, 1978. But this reflects no dilatoriness on the plaintiff’s part because his surgeon said his medical condition would not stabilize until January 1980. I therefore propose to allow interest on the pain and suffering from the date of the accident to the date of this judgment which is approximately two and a half years. I apportion the pain and suffering and loss of amenities as K13,500 pre-judgment and K4,500 post-judgment. Interest is allowed on the pre-judgment portion of K13,500 at four per cent for two and a half years = K1,350.

The loss of earnings (wages and rent) all occurred between 25th May, 1978 and 15th September, 1979. I will allow interest on this from the mid-point that is, 20th January, 1979 to the date of judgment say one year ten months at eight per cent that is K9,331.13 X eight per cent X 1.83 = K1,366.07.

I have not been told when the medical expenses were incurred or paid. I assume that the bulk of them were incurred shortly after the accident in connexion with the plaintiff’s hospitalization and I assume that they have all been paid. I will allow four per cent interest on these special damages from the date of accident to the date of judgment that is K1,849.10 X four per cent X 2.5 = K184.91. The total interest allowed is K2,900.98.

The total award to the plaintiff is thus:

This sum is to be reduced by fifteen per cent because of the contributory negligence I have found on the part of the plaintiff. There will therefore be judgment for the plaintiff for K27,269.02 plus costs to be agreed upon, or failing agreement, to be taxed. I order the moneys to be paid to the plaintiff’s solicitors, and the plaintiff having indicated that he would submit to such an order, I order his solicitors to pay $926.10 (Australian dollars) out of those moneys to the Australian Government in reimbursement of sickness benefits received by the plaintiff from the Australian Government. I certify that the case was an appropriate one for the employment of overseas counsel.

Judgment accordingly.

Solicitors for the plaintiff: Craig Kirke & Wright.

Solicitors for the defendant: Young & Williams.

[dclxx] Infra p. 415.

[dclxxi] (1948) 77 C.L.R. 39.

[dclxxii] (1948) 77 C.L.R. at p. 46.

[dclxxiii] (1948) 77 C.L.R. at p. 57.

[dclxxiv] (1950) 80 C.L.R. 292.

[dclxxv] (1967) A.L.R. 433.

[dclxxvi] [1967] Qd. R. 425.

[dclxxvii] [1968] Qd. R. 40.

[dclxxviii] [1939] 1 K.B. 509.

[dclxxix] [1977] 2 W.L.R. 943.

[dclxxx] [1971] EWCA Civ 6; [1971] 2 Q.B. 691 at p. 699.

[dclxxxi] [1943] UKHL 2; [1943] A.C. 448 at p. 457.

[dclxxxii] [1965] 1 W.L.R. 1454.

[dclxxxiii] [1966] 1 W.L.R. 57.

[dclxxxiv] [1963] 1 Q.B. 412 at p. 418.

[dclxxxv] [1971] 2 Q.B. 691.

[dclxxxvi] [1962] EWCA Civ 3; [1963] 2 Q.B. 43 at p. 69.

[dclxxxvii] [1971] EWCA Civ 6; [1971] 2 Q.B. 691 at pp. 700-701.

[dclxxxviii] [1939] 1 K.B. 509.

[dclxxxix] [1956] 2 Q.B. 264 at p. 270.

[dcxc] [1891] A.C. 325.

[dcxci] [1951] A.C. 737.

[dcxcii] Constitution s. 9, Sch. 1.2 definition of “underlying law”, and Sch. 2.2.

[dcxciii] Fleming, Law of Torts (5th ed., 1977), p. 251.

[dcxciv] [1967] A.L.R. 433.

[dcxcv] [1977] 2 W.L.R. 943.

[dcxcvi] [1955] 1 D.L.R. 824.

[dcxcvii] [1976] W.A.R. 175.

[dcxcviii] [1967] Qd. R. 425.

[dcxcix] (1979) 96 D.L.R. (3d) 611, a decision of the Nova Scotia Supreme Court, Appeal Division.

[dcc] Hodkinson v. Wallwork [1955] 1 W.L.R. 1195.

[dcci] Cummings v. Murphy [1967] V.R. 865.

[dccii] [1939] 1 K.B. 509 at p. 518.

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

[dcciv] [1979] P.N.G.L.R. 251.

[dccv] (1977) 139 C.L.R. 161; (1977) 51 A.L.J.R. 792.

[dccvi] [1980] P.N.G.L.R. 642.