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Rohrlach (by Her Next Friend Colin Stanley Rohrlach) v Evangelical Lutheran Church of New Guinea Property Trust [1985] PNGLR 185 (17 May 1985)

Papua New Guinea Law Reports - 1985

[1985] PNGLR 185 - Jane Rohrlach by Her Next Friend Colin Stanley Rohrlach v Evangelical Lutheran Church of New Guinea Property Trust 

[1985] PNGLR 185

N509

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JANE ROHRLACH BY HER NEXT FRIEND COLIN STANLEY ROHRLACH

V

EVANGELICAL LUTHERAN CHURCH OF NEW GUINEA PROPERTY TRUST

Waigani

Barnett AJ

1 March 1985

12 April 1985

17 May 1985

INFANTS AND CHILDREN - Age of majority - Eighteen years appropriate to circumstances of country.

Held

That, in the absence of statutory provision to the contrary, the age of majority appropriate to the circumstances of Papua New Guinea is eighteen years.

Summons

This was an originating summons seeking the approval of the Court to the settlement of a claim for damages for personal injuries for a fifteen-year-old child.

Counsel

J Carrington, for the plaintiff.

G Lay, for the defendant.

Cur adv vult

17 May 1985

BARNETT AJ: This matter comes before me by way of originating summons seeking the Court’s approval for the settlement of a fifteen-year-old infant’s claim for damages which arose after she was blinded in one eye by a staple fired by a fellow student at a school run by the defendant Church Trust. The summons also asked this Court to appoint the infant’s father and next friend, as well as another person, as trustees and to order the payment out of court of all moneys to them for the benefit of the infant until she reaches the age of eighteen. Finally the summons sought an order authorising the trustees to pay from the trust funds specified out-of-pocket medical expenses and legal costs.

On reading the affidavit of Mr Carrington, the plaintiff’s solicitor, and Mr Molloy, an expert independent counsel, on the question of liability and quantum of damages, I am satisfied that the sum of K52,452.86 provisionally agreed by the parties is a generous and reasonable settlement and I approve it.

I am not however prepared to appoint the plaintiff’s next friend and Mr Tauno Olavi Kaurila as joint trustees. There is a well-established and desirable precedent that the courts have been reluctant to release funds in this way and rather, have jealously guarded them until the infant attains majority.

Consequently I intend to order that the balance of the funds after payment of legal costs and medical expenses be paid into this court and invested on behalf of the infant. I agree that in the circumstances of this case it may be for the advantage of the infant if special arrangements are made for her schooling. For this reason I intend to allow the payment from the fund of up to K5,000 per annum for educational expenses. As the plaintiff and her next friend will be residing in Australia I have decided to simplify the procedure for such payments by ordering the Registrar to authorise them on the application of the next friend supported by a statutory declaration without requiring formal application to the court each time.

I propose to order that the balance of the trust fund be paid to the infant plaintiff when she reaches the age of eighteen years. The normal procedure has been to wait until the age of twenty-one years on the basis that the age of majority in Papua New Guinea is set by the English common law which was adopted at Independence on 16 September 1975. Pursuant to the Constitution, Sch 2.2, the principles and rules of common law and equity in England existing immediately before Independence were adopted here. The common law position in England was altered by the Family Law Reform Act 1969 (Imp) which reduced the age of majority to eighteen years. However by the terms of our Constitution it was the English common law unaltered by statute which was received into Papua New Guinea in September 1975 and that means twenty-one years.

That however is not the end of the matter: the obligation to apply the common law is qualified by an exception clause which excludes those rules and principles if “they are inapplicable or inappropriate to the circumstances of the country from time to time” (Sch 2.2(1)(b)). Papua New Guinea is a country where young men and women have traditionally been treated as adults well before their twenty-first year. For such matters as sex and marriage, the obligation to fight, property rights and status in the clan the age of adulthood or “majority” has always been younger than twenty-one. When the voting age was reduced to eighteen by the Electoral (Amendment) Ordinance it gave further recognition that the age of majority appropriate in the circumstances of this country is eighteen years. If further argument is needed it is provided in the Judges’ Annual Report for 1984 which recommended that eighteen years should be the statutory age of majority.

In this case I am also influenced by the fact that the infant plaintiff is now permanently resident in Queensland where, by statute, the age of majority is already eighteen years.

The settlement sum of K52,452.86 was agreed to be inclusive of costs and expenses. I am satisfied that the medical expenses paid by the next friend and claimed at K2,863.47 are reasonable and order that that amount be paid directly to the plaintiff’s solicitor for his reimbursement. I queried however, the amount of the legal costs claimed as owing to the plaintiff’s solicitors. Having heard plaintiff’s counsel on this matter, I am now satisfied and order that the sum of K2,500 be paid by the defendant direct to the plaintiff’s solicitors for legal costs payable by the infant plaintiff.

The balance of the settlement money is therefore K47,089.39 and I order this to be paid to the Registrar to be invested for the benefit of the plaintiff until she attains the age of eighteen years on 23 May 1988.

In addition to those above-mentioned amounts it has also been agreed by the parties that the defendant will pay the sum of $A1,834 directly to the Princess Alexandra Hospital Woolloongabba, Queensland in settlement of an account for the plaintiff’s further medical expenses. I hereby order such payment.

Orders accordingly

Lawyer for the plaintiff: Beresford Love Francis & Co.

Lawyer for the defendant: Young & Williams.