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Pinzger v Bougainville Copper Ltd [1983] PNGLR 436 (6 May 1983)

Papua New Guinea Law Reports - 1983

[1983] PNGLR 436 - Anton Johan Pinzger v Bougainville Copper Ltd 

[1983] PNGLR 436

N418

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANTON JOHAN PINZGER

V

BOUGAINVILLE COPPER LIMITED

Waigani

Bredmeyer J

4-5 November 1982

6 May 1983

DAMAGES - Personal injuries - Particular awards of general damages - Back injury - Lumbar disc injury - Conservative treatment - Continuing pain - Fit only for light work - Male tunnel foreman in mining industry aged 36 - Difficulty in finding employment in Australia - Award of K24,000 general damages.

DAMAGES - Measure of - Personal injuries - Economic loss - Calculation of present value of future economic loss - Actuarial method - Interest discount rate of five per cent adopted.

The plaintiff, a male senior tunnel foreman in the mining industry aged thirty-six, was injured in a mining accident and suffered a lumbar disc injury at L3-L4. The plaintiff underwent a number of treatments not including surgery, in an endeavour to reduce the pain and consequent disabilities which at the date of trial had stabilised leaving him with intermittent pain in the back, leg and hip aggravated by activity: he is now fit for light work only. Attempts by the plaintiff to obtain such work have been unsuccessful and largely due to the economic situation in Australia.

Held

(1)      General damages for pain and suffering and loss of amenities should be assessed at K24,000.

(2)      In calculating the present value of future economic loss the appropriate rate of interest should be taken at five per cent.

Hassard v. Bougainville Copper Ltd [1981] P.N.G.L.R. 182, followed.

Todorovic v. Waller [1981] HCA 72; (1981) 56 A.L.JR. 59, not followed.

Cases Cited

Dillingham Corporation of New Guinea Pty Ltd v. Diaz [1975] P.N.G.L.R. 262.

Lubbering, Wilhelm v. Bougainville Copper Ltd [1977] P.N.G.L.R. 183.

Meaney, John v. Hastings Deering (Pacific) Ltd [1979] P.N.G.L.R. 170.

Kaka Kopun v. P.N.G. [1980] P.N.G.L.R. 557.

O’Hello, Jeremiah v. Kayel Shipping Co. Pty Ltd [1980] P.N.G.L.R. 361.

Aspinall v. P.N.G. and Aspinall [1980] P.N.G.L.R. 50.

Cybular, John v. Ning’s Agencies Pty Ltd [1981] P.N.G.L.R. 120.

Jefford v. Gee [1970] EWCA Civ 8; [1970] 2 Q.B. 130; [1970] 2 W.L.R. 702; [1970] 1 All E.R. 1202.

Trial

This was an action in which the plaintiff sought damages for personal injuries as a result of a mining accident.

Counsel

I. Molloy, for the plaintiff.

S. C. Williams, for the defendant.

Cur. adv. vult.

6 May 1983

BREDMEYER J: Anton Johan Pinzger was injured in a mining accident at Panguna on 17 May 1979. Liability is admitted by the defendant and I have to assess damages....

PAIN AND SUFFERING AND LOSS OF AMENITIES

At the time of the accident, 17 May 1979, the plaintiff was working as senior tunnel foreman, in charge of a shift of six to eight workers. He was on a raised platform on a scizzor car at the tunnel face attempting to free a steel rod which was dangerously caught between the platform and the tunnel face when a worker underneath manually threw a lever which suddenly collapsed the raised platform. The plaintiff who was holding a fifty to sixty kg drill in his arms at the time unexpectedly fell three feet and severely jarred his back. He felt great pain in his lower back and left leg, was helped down by his men, and found it almost impossible to move. He stayed at work for an hour and a half — unable to move. Next day he saw a doctor and was given a week off work. He returned to work for a week and then went off on his recreational leave which fell due at that time. At work and on leave he was in great pain. The drive to and from the tunnel site in a four-wheel drive vehicle each day was agony and the drop in temperature on entering the tunnel increased his pain. The pain upset his leave, he cut it short to three weeks, and returned to work. Six weeks after returning to work he was sent to Melbourne for treatment by a neurosurgeon Dr Wallace.

Dr Wallace found the plaintiff a robust, fit man and diagnosed a lumbar disc injury at L3 and L4. Dr Wallace gave him a myelogram and discogram which were understandably painful. Dr Wallace consulted an orthopaedic surgeon and they recommended against an operation such as a discectomy and spinal fusion, as there was moderately severe disc degeneration not at one level but at least three levels. The doctors thought it pointless to do a spinal fusion at one level when the degeneration was at more than one level, as to do a multi-level fusion would produce a disabling stiff back and place great strain on the discs immediately below and above the fused ones. The plaintiff was in hospital under Dr Wallace’s care for about a month. He was given traction and bed rest, followed by gentle mobilisation with physiotherapy. The doctor said that the plaintiff was discharged from hospital with much greater mobility but with some residual pain in the back and left thigh. The plaintiff was given a spinal brace and a spinal corset. He was told to wear the brace for a month, to wean himself off it gradually and then to wear the corset and to resume work on light duties after a few weeks.

In September 1979 the plaintiff returned to Bougainville and resumed work on light duties for the next six months. No physiotherapy was available in the Kieta area at that time. The plaintiff gave himself traction. He bought a lumbar harness and he got a boilermaker friend to make an apparatus of pullies and ropes using concrete blocks as weights. The plaintiff gave himself this traction about three nights a week for three or four hours a night and sometimes all night. It relieved his pain.

At the end of February 1980 the plaintiff went home to Austria and over about six weeks was treated at the Innsbruck Orthopaedic University Clinic; during four of those weeks he was an inpatient there. He was diagnosed by Dr Kurt Kuchs and Dr R. Bauer as having spondylosis and osteochrondrosis of the lumbar vertebrae particularly at L3/4 and L4/5. The doctors gave him a myelogram to assist their diagnosis. They recommended against surgery and treated him with acupuncture which they thought was not very successful, physiotherapy, massage, electrobaths, pelvis extension on a machine and hot-air therapy. These treatments helped but did not in the long term reduce the plaintiff’s pain.

The plaintiff returned to Bougainville and worked there on light duties for six months. In November 1980 he returned to Melbourne and entered Epworth Hospital for the second time and had ten days of treatment under Dr Wallace who wrote a report at the time that the plaintiff was suffering from multiple disc lesions in the lumbar spine causing him severe back and leg pain and was only fit for light duties.

The plaintiff continued working on light duties at Panguna and after 23 January 1981 in Brisbane for the next sixteen months until March 1982 when he became unemployed. During this period the plaintiff’s medical treatment included the following: a lumbar rhizolysis operation in Brisbane under a neurosurgeon Dr L. Atkinson, physiotherapy and acupuncture.

About mid-1981 the plaintiff came under the care of Dr W. Ryan, an orthopaedic surgeon of Brisbane. The most useful “treatment” Dr Ryan gave the plaintiff was to steer him to a four-week back pain rehabilitation programme at Greenslopes Hospital conducted in August-September 1981. This course consisted of private and group meetings with physiotherapists, occupational therapists, and other experts, reading books and listening to tapes, etc. The plaintiff was taught how to exercise properly, how to walk, stand, sit and lift things properly. Emphasis was placed on the psychological side; how to cope with back pain mentally and to give up painkilling drugs and artificial aids. His wife was required to attend some sessions, to better understand the moods and needs of the plaintiff. The plaintiff was taught how to increase his sitting, standing, walking and movement tolerances. The plaintiff gained great benefit from this course. At the beginning of the course his sitting tolerance was twenty minutes, at the end of the course eighty-five minutes. At the beginning his standing tolerance was forty minutes, at the end 105 minutes. At the beginning of the course he completed the Oswestry low back pain questionnaire and assessed his own level of disability at fifty-six per cent. At the end of the course it was thirty-two per cent and at a follow-up six months later was forty per cent. Following this course the plaintiff swims every day in his backyard pool in summer and attends a gymnasium about three times a week for work-outs as a means of strengthening his back muscles and thereby reducing his pain and keeping fit.

It is now nearly four years since the accident. The plaintiff is now aged forty. Surgery is out. All the doctors are against it. There is no fracture or dislocation of the spine. There are degenerative changes at multiple levels most marked at L3-L4. The accident damaged the soft tissue in the lumbar spine which had already been subject to degenerative change. There is no statistical evidence that if he had stayed in the mining industry, involving as it does heavy work on occasions, that he would have a greater chance of injuring his spine anyway than if he had had a light job such as a clerk or salesman. He is fit enough for light work which does not involve heavy lifting and repeated bending.

The plaintiff’s pain and physical disabilities have stabilised for some time now, say since the Greenslopes course of August/September 1981. He has pain in the lumbar spine with radiation to the left thigh and calf and also in the right hip. He tends to walk with the weight on his right leg. His pain is aggravated by sneezing, sitting, stooping, lifting and standing. It is relieved by rest. He does take some painkillers but not that often and he tries to avoid them. Before the accident he used to play social squash and a little tennis. He can do neither now. He was once good at rifle shooting and would like to take it up again but cannot cope with it physically. I accept that. He used to like dancing and cannot do it now. He used to cut the grass, cannot do it now and is ashamed that his wife has to cut it. Driving the car gives him back pain and he avoids it unless absolutely necessary. A change of weather can aggravate his back pain. He is worse in the mornings. At times his wife helps him out of bed, puts on his socks and at times his underpants too. He does his exercises. He needs to do them to get mobile. They are painful; he says there seems to be a need to create pain to overcome pain. His pain, lack of mobility and inability to do what he did before has at times imposed a strain on his marriage and that has caused him worry. Likewise sexual intercourse is painful and not as enjoyable as before.

Despite his pain, his disability and his misfortune the plaintiff has impressed me as well motivated, not morose, morbid or neurotic. He has tried hard to overcome or reduce his pain and disability as can be seen by the self-made traction bed, undergoing painful treatments, doing his exercises, swimming and gymnasium work-outs. He has accepted his doctor’s advice and relies very little on the corset or on pain-killing drugs. The only way in which he has failed to reduce his affliction is that he has failed to reduce his weight. He is about two stone overweight which is extra weight for his back to support. He has tried to reduce it but failed.

Despite his healthy and well adjusted personality and his determination to minimise his affliction, the plaintiff suffers some anxiety which in turn worsens his physical condition, and I accept Dr Ryan’s evidence that this anxiety will be reduced somewhat by the conclusion of this case. I therefore expect his pain and suffering to reduce a little and his disabilities to improve a little after this case.

I have read some comparable cases for guidance. I note at one end of the scale the damages granted for pain and suffering and loss of amenities in the paraplegic cases as follows:

Their sufferings and disabilities; are greater than the plaintiff’s.

I have noted the damages granted for some comparable cases:

I have noted the dates of these awards; obviously awards increase over the years to take into account inflation. Taking into account the considerations I have discussed above and comparing the plaintiff’s plight to that of the other plaintiffs I have mentioned I consider that a fair and adequate award for past and future suffering and loss of amenities and enjoyment of life is K24,000.

To this I should add a sum for future medical expenses. The plaintiff wears a corset on occasions. He does not wear it much but when he does he sweats and the corset needs to be washed frequently which in turn rusts the stays in it. It lasts about a year and the cost is about $45. He also takes occasional painkilling tablets; not so many and he tries not to be dependent on them. I should include a sum to allow a chiropodist to cut his toenails; the plaintiff is unable to do this because of the injury and his toenails have become ingrown. Altogether I allow K1,000 for future medical expenses.

ECONOMIC LOSS

How long would the plaintiff have stayed on working at Panguna if the accident had not occurred on 17 May 1979? Just after the accident the plaintiff signed his second two-year contract with the defendant from 23 August 1979 to 23 August 1981. (The second contract dated 27 July 1979 actually gives a commencement date of 23 August 1978 but I think that was a mistake. His first contract was for two years from mid-1977. The plaintiff said each contract was for two years, and a letter from the defendant shows the contract expiry date as 23 August 1981). He was medically evacuated from Bougainville on 23 January 1981, seven months short of completing that second contract. The plaintiff said he would have definitely considered another two-year contract that is to August 1983, that he liked his work, it was well paid, he wished to see the digging of the tunnel completed and then wished to work on its lining. He had no experience in cementing but was keen to learn. His wife had a good job at Bougainville and wished to stay.

The plaintiff’s former colleague, A. H. Brown, now tunnel superintendent, said the tunnel finished mid-1982 but that there is follow up work to be done mainly concrete work lining the tunnel. Giving evidence in November 1982 he said there was a further eighteen months work in the tunnel, that is to May 1984. He said the plaintiff was a good worker and his skills would have been of use for the eighteen months. Previously Brown had said if the plaintiff had been fit when his contract expired in August 1981 he would have extended it for one year. I add that Brown’s authority to recommend contract renewals was limited to one year.

Weighing up this evidence I consider that the plaintiff would have signed a further two-year contract or two one-year contracts from August 1981 to August 1983 had he not been injured. He wanted to stay on, his boss said there was work for him, and the employment situation in Australia was poor. I am not prepared to say that the plaintiff would have stayed on at Panguna beyond August 1983. I note that he was employed as a tunnel foreman in charge of a shift, to work on a particular tunnel 3m x 4m x 6.1km long. His special skills are drilling and blasting. The tunnel has now been dug and by August 1983 will largely be lined. There are laws requiring localization and cheaper wages paid to nationals are an incentive to localize. The plaintiff was not employed generally as a miner and I imagine his knowledge and skills at drilling and blasting are, by now, also possessed by many nationals.

The plaintiff has been unemployed since March 1982. I assume for the moment that he will remain unemployed until August 1983. His loss of income has therefore been his salary he would have earned at Bougainville Copper from the date of the accident 17 May 1979 to 23 August 1983 less what he has been paid initially at full rates, and later in Brisbane at part-time casual rates. The parties have agreed that the loss of salary to the date of trial 4 November 1982 was K20,570. I add to this the loss of salary from 4 November 1982 to 23 August 1983 (forty-two weeks) when I consider he would have left the defendant’s employ. The plaintiff’s after-tax salary as a tunnel foreman was K1,650 per month (an agreed figure) or K412.50 per week. His loss then from the date of trial to 23 August 1983 is 42 x K412.50 = K17,325.

To these figures for loss of salary I should add a sum for accommodation and related benefits. I consider that a fair estimate of the value of the plaintiff’s flat plus free electricity, water and garbage collection, less the payment of K24 per month, was K200 per month or K50 per week. Had the accident not occurred the plaintiff would have enjoyed this house perquisite from 23 January 1981 when he left Bougainville and returned to Australia to 23 August 1983 a period of 134 weeks. The loss is thus 134 x K50 = K6,700.

Dr Ryan’s opinion is that the plaintiff is fit for light work but not for heavy work, that is, work involving heavy lifting or repeated bending. I accept that opinion as correct. He has attempted to get jobs as a gatekeeper, a weighbridge man, a petrol attendant, a salesman, a kitchen hand, a night security man, and I consider he is physically capable of doing those jobs.

[His Honour then considered and rejected arguments that the plaintiff would require a lot of time off work or a particularly benevolent employer and that on his return to Australia he would be able to get a job as a jumbo operator or a miner at a salary of over $25,000 per year.]

The plaintiff has tried for many jobs since becoming unemployed in March 1982 without success. He says he has tried for supervisory jobs in the mining industry without success. His friend Thompson has been looking for a job for the plaintiff for some time without success. The plaintiff has also tried but failed to obtain other jobs, gatekeeper, weighbridge man etc., as I have mentioned. A large part of the defendant’s failure to get a job is because of the economic recession in Australia; there is much unemployment in Australia. Part of the problem too is that the defendant has no paper qualifications, no trade certificates or the like. He has practical experience in the mining industry and experience as a youth dairy farming in Austria. The defendant is not responsible for the depressed economy in Australia (see Wilhelm Lubbering v. Bougainville Copper Ltd [1977] P.N.G.L.R. 183 at 206) nor for the plaintiff’s lack of qualifications. Mr Molloy also argued that part of the plaintiff’s difficulty in getting employment is that employers are wary of employing a back sufferer. An employer, he says, would regard a back sufferer as a bad risk because he might require a lot of time off work, and he might aggravate his back injury or pretend to aggravate it at work, and thereby claim workers’ compensation from the employer. I concede that this is a powerful argument and I allow it to this limited extent. I have already found above that I consider that the plaintiff would have returned to Australia permanently in August 1983 and I am willing to assume that he will take from the date of judgment until then to find a job or establish himself in a business. Thus the wages he would have earned with the defendant until August 1983 will not be reduced by wages I consider he could have earned immediately after this judgment. Apart from that I reject the argument. The plaintiff has been rejected for many jobs; some employers knew of his back injury, some did not; the main cause for rejection was the depressed economy rather than his back injury. Then I think it possible that the plaintiff will invest the damages awarded in this case in a small business and become self-employed rather than seek a light job. I consider on the balance of probabilities that the plaintiff will get an unskilled job of the kind indicated, or commence a small business to give him an equivalent return, from August 1983.

I consider that if the plaintiff had returned to Australia in August 1983 as a fit man he would have got a supervisory job in the mining industry. I consider that he opted for a supervisory job when he accepted the Panguna job in 1977 and that he would have found a similar supervisory job on his return to Australia. I consider that he would have stayed in the mining industry for reasons which he gave. I accept the plaintiff’s evidence that a mining foreman or supervisor needs to be physically fit; he needs to be able on occasions to do the work expected of his gang. To be a good foreman I think requires the ability on occasions to demonstrate practically and physically how the work should be done. He was required to do that at Panguna, as was the other foreman, Brown, and I think that ability would also be required in Australia. To be a mining foreman requires the ability at least intermittently to do heavy work which the plaintiff does not have.

The measure then of the plaintiff’s future economic loss is the difference between what he could have earned as a mining supervisor in Australia and what he will earn as a gatekeeper, weighbridge man, petrol attendant or the like. It is difficult for me to quantify this difference because I heard no evidence on the salaries paid to mining supervisors in Australia. The plaintiff led evidence on what jumbo operators earn in Australia but I have rejected that as the correct measure of his loss, and the plaintiff led no evidence on salaries paid to mining supervisors. I have to do the best I can with a total lack of evidence and, as the plaintiff bears the onus of proof, I must lean to the defendant’s side. Thompson’s experience is that mining supervisors get less than jumbo operators who on his mine are paid $25,000 per annum which I take to be gross. I consider that a mine supervisor would get after tax about $292 per week. I have evidence that a night watchman earns $177 per week after tax and I take that to be about the same salary as a gatekeeper, weighbridge man etc. the plaintiff lost earning capacity is thus $115 per week. The plaintiff is now aged forty. I consider that he has a remaining working life of twenty-two and a half years.

I reject the plaintiff’s argument that in considering his earning capacity in Australia. I should find that he would enjoy the perquisite of a free or subsidised house in Australia. The evidence on that point was unsatisfactory. I was told that Mt Isa mines for example provides houses at nominal rental but many workers prefer to own their own houses. I cannot conclude on the balance of probabilities that a mining job in Australia would include a free or subsidised house.

I have to apply the discount tables to $115 per week x 22.5 years. The plaintiff has urged me to apply the very leading Australian decision of Todorovic v. Waller [1981] HCA 72; (1981) 56 A.L.JR. 59. In that case the High Court of Australia decided by a majority of five judges to two on a three per cent discount rate. I quote from the headnote:

“(1)    In an action for damages for personal injuries, the court assessing damages should not have regard to evidence as to the likely course of future inflation, in as much as no principle of compensation entitles a plaintiff to be protected generally from the effects of inflation. Evidence as to such likely course of inflation, or of possible future changes in rates of wages or of prices should accordingly be inadmissible.

(2)      In the case of loss of future earning capacity, or where the plaintiff’s injuries necessitate the future expenditure of money to provide medical services or goods necessary for the plaintiff’s health or comfort, the present value of such future loss should be quantified by the adoption of a discount rate of three per cent in all cases, subject, of course, to any relevant applicable statutory provisions. In the absence of such statutory provisions, the discount rate should no longer be a matter lying within the discretion of the trial judge, or for determination by a jury. Such discount rate of three per cent would, as a practical matter, serve to make appropriate allowance for inflation, for future changes in rates of wages generally or in prices, and for tax, either actual or notional, upon income from the investment of any lump sum awarded in that connexion, no further allowance being made for such matters.”

There has been no discussion by the Supreme Court since independence of the appropriate discount interest rate in Papua New Guinea. The question was not discussed by the Supreme Court in Dillingham Corporation of New Guinea Pty Ltd v. Diaz [1975] P.N.G.L.R. 262, although the court there upheld the award of the trial judge who had used six per cent tables with the consent of both counsel. There was no discussion of the appropriate interest rate in Kerr [1979] P.N.G.L.R. 251. Andrew J alone in that case mentioned a figure — he used the six per cent tables — and, as the other two judges concurred in his award of damages, the case is an authority for six per cent. In Lewis [1980] P.N.G.L.R. 219, Andrew J chose six per cent, Miles J chose seven per cent, but both agreed on the actual award of damages for economic loss of K100,000. They were able to do this by allowing slightly different reductions for the uncertainties of life from the figures produced by the discount tables. The result is not therefore as odd as it might otherwise appear. The third judge, Greville Smith J simply concurred with the other two.

Single judges have chosen different discount rates. In Wilhelm Lubbering v. Bougainville Copper Ltd [1977] P.N.G.L.R. 183 O’Meally A.J chose eight per cent, as did Wilson J in Meaney v. Hastings Deering (Pacific) Ltd [1979] P.N.G.L.R. 170. In Kaka Kopun [1980] P.N.G.L.R. 557, Miles J chose seven per cent, in Jeremiah O’Hello v. Kayel Shipping Co. Pty Ltd [1980] P.N.G.L.R. 361, Pratt J chose six per cent. The first, and to date the only judge to consider the question of the appropriate rate was Miles J in Hassard v. Bougainville Copper Ltd [1981], P.N.G.L.R. 182. He there considered the leading Australian cases on discount rates prior to the High Court decision in Todorovic v. Waller, which had not then been decided, and contrasted them with the English authorities. I agree with his conclusion that inflation is a fact of life in Papua New Guinea and would appear to be so for the foreseeable future, and therefore in fixing a discount rate of interest it should be somewhat below the market interest rates available in Papua New Guinea. By so doing the rate takes into account in a rough and ready way future inflation. That is the plaintiff can, if he chooses, invest the damages awarded at a higher rate than that chosen by the court and thus counteract the effect of inflation to some extent. I consider that the Supreme Court cases I have cited require me to apply an interest rate of around six per cent. To adopt an interest rate of three per cent, as was done by the High Court of Australia and which results in a significant increase in the awards produced by adopting rates of around six per cent, would be a significant departure from the Supreme Court decisions I have cited, and from the practice of numerous single judges of this court. I consider myself bound by the Supreme Court decisions and I desire to follow the long-standing practice of fellow single judges in the interests of producing certainty and predictability in the law. Only the Supreme Court in my view can fix a discount rate of three per cent. Miles J in Hassard chose five per cent. In this case defence counsel had no objection to five per cent and I therefore choose it too.

Applying those tables the sum of $81,232.50 invested at five per cent would produce an income of principal and interest of $115 per week for twenty-two and a half years. It is usual to discount this sum for the uncertainties of life — that the plaintiff over that period may get sick, injure himself in some other way, die prematurely, be unemployed or the like. I do so and reduce that sum to $70,000 which converts to Kina at an exchange rate of K1 = $1.35 at about K52,000.

The total amount of damages is as follows:

INTEREST

On the question of interest I propose to follow Aspinall v. P.N.G. and Aspinall (No. 2) [1980] P.N.G.L.R. 50 and John Cybula v. Ning’s Agencies Pty Ltd [1981] P.N.G.L.R. 120. What was s. 42 of the Law Reform (Miscellaneous Provisions) Act 1962 is now s. 1 and s. 2 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch. No. 52) which reads:

“1.      Interest on certain debts and damages

Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

2.       Interest on interest, etc

Nothing in Section 1:

(a)      authorizes the awarding of interest on interest; or

(b)      applies in relation to a debt on which interest is payable as of right, whether under an agreement or otherwise; or

(c)      affects the damages recoverable for the dishonour of a bill of exchange.”

The section allows the judge to award interest “for the whole or part of the period between the date on which the cause of action arose and the date of judgment”. Thus interest can be awarded from the date the cause of action arose which was the date of the accident. The original predecessor of our section, s. 3 of the Law Reform (Miscellaneous Provisions) Act 1934 (Imp.) was in the same terms, nevertheless it has been the practice in England not to award interest for the whole of that period but only from the date of issue of the writ, see Jefford v. Gee [1970] EWCA Civ 8; [1970] 2 Q.B. 130 at 144 per Lord Denning M.R. The principle is that the interest is awarded to compensate the plaintiff because the defendant has wrongfully withheld the plaintiff’s money from him. That same principle and practice has been followed in Papua New Guinea and I agree with it. How can it be said that the defendant has wrongfully withheld the plaintiff’s money when the plaintiff has not made a demand for it? Indeed a strong case can be argued for the defendant that the demand is only made when it is quantified in a statement of claim or later in particulars, but I propose to ignore that argument and follow past practice.

I apportion the past pain and suffering to the date of judgment as K12,000. Interest lies on that sum at four per cent being half of eight per cent, the current commercial rate chosen by other judges, because the plaintiff has already been compensated to some extent for being deprived of that sum by the fact that the award made herein is undoubtedly higher than it would have been if it had been made in 1981 or 1982.

The loss of wages and housing benefits to the date of judgment is K37,416.25. For convenience of arithmetic I ignore the fact that the plaintiff received full wages to January 1981, partial wages to March 1982, and nothing since then. I will assume that his entitlement to wages acrued evenly over the whole of the pre-judgment period. I will also assume that the out-of-pocket expenses of K1,391 accrued evenly over the same period. The writ was issued on 12 December 1979. The pre-judgment loss of wages, housing benefits and out-of-pocket expenses totals K38,807.25. I award interest on that sum at eight per cent for half that period. (The same result could have been achieved by allowing interest at four per cent for the full period.)

There will be judgment for the plaintiff for K129,861.86 and costs. I certify that the case was a suitable one to engage overseas counsel.

Judgment accordingly.

Lawyer for the plaintiff: Warner Shand, Wilson & Associates.

Lawyer for the defendant: Young & Williams.