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Coady, (an Infant), by his next friend Christopher John Coady v Motor Vehicles Insurance (PNG) Trust [1987] PNGLR 55 (4 May 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 55 - Bernard Julien Coady, an Infant, by his next friend, Christopher John Coady v MVIT 

[1987] PNGLR 55

SC331

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BERNARD JULIEN COADY

AN INFANT BY HIS NEXT FRIEND CHRISTOPHER JOHN COADY

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Kapi DCJ Amet Cory JJ

27 May 1986

4 May 1987

DAMAGES - Measure of damages - Personal injuries - Loss of earning capacity - Infant plaintiff - Relevant principles - Need for real or substantial risk of restriction on employment.

A child aged four and a half years suffered head and facial injuries in a motor vehicle accident. His residual disabilities included severe scarring, occasional double vision and tiredness in one eye and loss of feeling in the forehead. In assessing damages the trial judge declined to make an award for future economic loss on the basis that there was no evidence of any intellectual impairment nor any evidence that any vision problems would actually affect future employment or career. On appeal:

Held

(1)      In assessing liability for damages for loss of earning capacity in an award of damages for personal injuries in respect of an infant plaintiff, the tests to be applied are:

(a)      Whether there is a substantial risk that the plaintiff’s range of employment opportunities will be restricted or affected as a result of the injuries;

(b)      If there is such a substantial risk the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if the risk materialises.

(c)      Damages should be assessed according to established practice rather than by adopting an award of a conventional sum.

Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9 at 16, adopted and applied.

(2)      (Amet J dissenting)

The appeal should be dismissed:

(per Kapi Dep CJ) The appellant had failed to prove that the nature of his injury was such that there was any substantial risk of restricting or affecting his future employment.

(per Cory J) There was a substantial risk that the range of the plaintiff’s employment opportunities would be restricted on account of the injuries, but the injury was not so seriously disabling as to cause any financial damage to the plaintiff in the future.

Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450, affirmed.

Cases Cited

A P Davies v Taylor [1974] AC 207; [1972] 3 WLR 801; [1972] 3 All ER 836.

Clarke v Rotax Aircraft Equipment Ltd [1975] 1 WLR 1570; [1975] 3 All ER 794.

Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450.

D’Ambrosio v De Souza Lima (1985) 60 ACTR 18.

Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40.

Hutchinson v Sward (1966) 39 ALJR 500; [1966] ALR 1021.

Iambakey Okuk v Fallscheer [1980] PNGLR 274.

Jones v Lawrence [1969] 3 All ER 267.

Komisars v Guardian Assurance Co Ltd (1973) 5 SASR 515.

Lewis v Independent State of Papua New Guinea [1980] PNGLR 219.

Moeliker v A Reyrolle & Co Ltd [1977] 1 WLR 132; [1977] 1 All ER 9.

SCR No 4 of 1980 (No 2); Re Petition of MT Somare [1982] PNGLR 65.

Smith v Manchester Corporation (1974) 17 KIR 1.

Taylor v Bristol Omnibus Co Ltd [1975] 1 WLR 1054; [1975] 2 All ER 1107.

Wahgi Savings & Loans Society Ltd v Bank of South Pacific Ltd (Unreported, Supreme Court judgment SC 185, dated 25 November 1980).

Appeal

This was an appeal from an award of damages in a personal injuries case, viz, Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450. The case is reported only in respect of the question of loss of earning capacity of the infant plaintiff.

Counsel

D Roebuck, for the appellant.

I Molloy, for the respondent.

Cur adv vult

4 May 1987

KAPI DCJ: This is an appeal against an award of damages for personal injuries in the National Court (see Coady v Motor Vehicles Insurance (PNG) Trust [1985] PNGLR 450). The appellant has appealed on the basis that the damages awarded are inadequate. There was a cross-appeal by the respondent but this was not proceeded with at the hearing.

The appellant, a child, was aged four and a half years at the time of the accident in June 1984. The trial judge described the injuries and the treatment received by the appellant immediately after the accident as follows (at 451):

“... lacerations to the forehead and to the eyelids and a piece of glass went through the roof of the left orbit into the front lobe of the brain.

On the day of the accident, he was operated on at Port Moresby General Hospital where multiple series of sutures were performed to the lacerations on the forehead and eyelids. The plaintiff was flown to Brisbane the next day where he was operated on to remove the glass fragment from the front lobe of the brain. The plaintiff was in hospital for about ten days and for part of that time he would have been unable to see because of the wounds and the bandaging.

The head wounds have now apparently healed well, however, there is substantial scarring.”

The trial judge went on to find that,

“There is no evidence of any personality or intellectual impairment or permanent injury to vision, however, there is evidence of occasional double vision and some sensory loss over the forehead. The double vision would appear to be a symptom of tiredness and appears when the plaintiff tries to read or concentrate for too long. It is perhaps still too near to the accident for any problem in this area to have settled”.

In exercising appellate jurisdiction, this Court,

“shall give paramount consideration to the dispensation of justice”.

See s 158 of the Constitution.

The nature of this Court’s appellate jurisdiction since Independence is clearly set out in the judgment of Miles J in Lewis v Independent State of Papua New Guinea [1980] PNGLR 219. He has set out the principles clearly, having in mind the constitutional provisions. I adopt those principles in determining this appeal.

The first two grounds of appeal involve findings of fact by the trial judge. [His Honour then considered these grounds of appeal in a manner not calling for report concluding that there were no errors in the conclusions reached by the trial judge.]

LOSS OF EARNING CAPACITY

In respect of this head of damage, the trial judge reached a conclusion that there was no real evidence that there could be future economic loss and made no award. The appellant has argued that there is evidence to show that the injuries received by the appellant have affected his earning capacity and therefore he should be awarded damages.

The claim for damages arises out of injuries and is a common law action. Therefore, the law applicable is the common law as adopted under Sch 2.2 of the Constitution which becomes part of the underlying law. The common law principles which are binding on this Court (by virtue of the words, “... shall be applied and enforced,...” under Sch 2.2 of the Constitution) are the principles applicable in England. That is the primary source of common law. See Wahgi Savings & Loans Society Ltd v Bank of South Pacific Ltd (Unreported, Supreme Court judgment SC 185, dated 25 November 1980), see Iambakey Okuk v Fallscheer [1980] PNGLR 274 and SCR No 4 of 1980 (No 2); Re Petition of MT Somare [1982] PNGLR 65. The common law principles relating to economic loss based on loss of earning capacity may be found in the leading case of Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9. Although this is a case decided after 16 September 1975, the Court of Appeal adopted the principles in England which existed immediately before Independence in Papua New Guinea. In this case, Browne LJ (at 15) makes a sharp distinction between two separate claims which may be considered under the general head, economic loss. They are:

(1)      loss of actual earnings by persons who were employed at the time of injuries received in the accident; and

(2)      loss of earning capacity.

The first deals with the actual losses which can be calculated mathematically. Whereas, the second category deals with the risk that the plaintiff has lost the earning capacity to obtain an equivalent or a better job in the future. This head of claim presents the court with difficulty in assessment.

The claim for loss of earning capacity is different in nature. To use the words of Browne LJ, who described it (at 15) as:

“A plaintiff’s loss of earning capacity where as a result of his injury his chances in the future of getting in the labour market work (or work as well paid as before the accident) have been diminished by his injury.... This head of damage generally arises..., but there is a risk that he may lose this employment at some time in the future and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job”.

Browne LJ then goes on and sets out the proper approach to assessing this head of claim (at 17):

“The consideration of this head of damages should be made in two stages.

(1)      Is there a substantial or real risk that a plaintiff will lose his present job at some time before the estimated end of his work in life?

(2)      If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if the risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”

I consider that Moeliker’s case clearly sets out the relevant common law principles. I would adopt these principles and render them applicable in this jurisdiction under Sch 2.2 of the Constitution. I cannot think of anything which may render these principles inapplicable under Sch 2.2(1)(a), (b) and (c) of the Constitution. If I am wrong in applying these principles under Sch 2.2 then I would through the development of the underlying law under Sch 2.3, develop the law and adopt the principles stated as part of the underlying law.

Moeliker’s case involved a plaintiff who was injured while in employment and who returned to work after the injury. The first question raised in Moeliker’s case is, therefore not applicable in the case involving a child or any other adult who is not employed or earning a living at the time of the accident. If there is no employment at the time of the injury, then, the question of the risk of losing a job does not arise. The question then becomes, is there a substantial or real risk that the injuries suffered by the plaintiff will affect any future employment? The second question raised in Moeliker’s case is, however, applicable. This general principle is the same whether one is dealing with a child or an adult.

LIABILITY

The plaintiff bears the onus of showing that the nature of his injuries is such that his chances of getting any employment in the future will be affected. This is a question of fact. The liability to award damages is not affected by the fact that the injuries received by the plaintiff may only have a slight effect on future employment: see Moeliker v A Reyrolle & Co Ltd at 18. No general principle can be formulated but some of the considerations which should be considered are set out in the judgment of Browne LJ in Moeliker’s case.

METHOD OF ASSESSMENT

The earlier cases in England reveal that this head of claim [loss of earning capacity] was considered together with general damages. Moeliker’s case (at 15). See also the approach of the court in Komisars v Guardian Assurance Co Ltd (1973) 5 SASR 515. However since the case of Clarke v Rotax Aircraft Equipment Ltd [1975] 3 All ER 794, this head of claim is quantified separately because no interest is recoverable under this head.

The Court of Appeal in Taylor v Bristol Omnibus Co Ltd [1975] 2 All ER 1107, rejected the suggestion of adopting an award of a conventional sum and held that this head of damage should be based according to established practice, on an estimate of the child’s loss of future earnings. The Court of Appeal in Moeliker’s case also adopted the same approach (at 16). I would adopt the common law practice contained in those cases and apply it here in this jurisdiction under Sch 2.2 of the Constitution. The conventional sum practice has no real basis for calculation and may result in injustice. Whereas, on the approach set out in Taylor v Bristol Omnibus Co and Moeliker’s case, there is an attempt to calculate the loss as best one can and even though it will not be accurate, I cannot think of any better method.

APPLICATION TO THIS CASE

Is there evidence to show that the chances of the plaintiff obtaining employment, when he comes of age, have been affected by the injuries received? In brief, the plaintiff has suffered permanent injury to the ocular muscle behind the left eye which results in occasional double vision once or twice a week after getting tired from school work. The only evidence relating to chances of employment is contained in the evidence of Dr Toakley given at the trial. The following questions and answers appear in examination in chief:

“Q.     Does that preclude him from areas of employment?

A.       It depends on what he is doing — whether he needs depth of perception.

Q.       Can you give some examples?

A.       If he was dealing with the microscope or he was doing micro surgery.

Q.       What about fine engineering or working with computers?

A.       It could preclude it where he needs stereoscopic vision.

Q.       Would he get warning it was going to happen, that he was going to get double vision?

A.       Yes, a blurring at first but I do not know how he gets it. It varies from patient to patient.”

With respect, this medical evidence is not helpful at all. The evidence does not establish how occasional double vision would affect the plaintiff in employment which needs depth of perception or stereoscopic vision. At the highest, the doctor simply does not know how or when the plaintiff is going to get double vision. In dealing with a child aged about four and a half years of age, more is needed than simply stating that the plaintiff would be precluded from one field of or an area of employment which needs stereoscopic vision. The problem is that it is difficult for a court to know the abilities and the preferences of employment by the child. In the case of an adult, there would normally be evidence relating to his vocation, training, his skills, his preferences and the like. For a child to be successful in establishing that his chances of employment are affected by injuries, he must show evidence that his chances would be affected in the areas of employment that would be open or available to him when he reaches employment age. This task is easier when there is permanent injury to a working part of the body or an ability of a child. The injury in this case is not in that class of injury. Dr Toakley’s evidence further shows that the double vision would be no handicap to studying or in training. He stated that the plaintiff would get headaches but that is normal to everyone. There is no evidence of any other emotional or intellectual effect on the plaintiff. On the whole of the evidence, it appears that it has not been shown that the plaintiff’s chances of employment have been affected by injury to the ocular muscle behind the left eye. On the evidence before the Court, this child is capable of many employment areas which may require use of his intellect and skills in other parts of his body. He has every opportunity to develop them. The evidence is not there to suggest that the chances of employment in the future have been affected by the injuries. I find that there is no error in the conclusion reached by the trial judge in this regard. It is therefore not necessary to consider the amount of damages.

All that remains to be considered is the amount awarded for general damages. The trial judge awarded a figure of K12,000. Having regard to all the circumstances of this case, it has not been demonstrated that the amount awarded is inadequate. I would dismiss this ground of appeal.

The appeal is dismissed with costs.

AMET J: The appellant was a four and a half year old boy when he was involved in a motor vehicle accident in June 1984. He was thrown through the windscreen of the vehicle in which he was travelling and sustained lacerations to the forehead and to the eyelids. A piece of glass went through the roof of the left orbit into the front lobe of the brain. Liability was admitted by the defendant and the matter went to trial for assessment of damages only. The court awarded general damages of K12,000. The appellant has appealed against this as being inadequate.

Two main grounds of appeal were argued. The first, involving questions of fact, that the learned trial judge made errors in his findings of facts which contributed to his under-valuation of the extent of the injury suffered by the appellant. Secondly, the question of law that the errors in the primary conclusions of facts and the under-valuation of the extent of the plaintiff’s injuries, led to the trial judge failing to estimate the appellant’s future employment prospects and to make an appropriate award in damages for any future economic loss.

Under the first main ground of appeal two factual conclusions of the learned trial judge were in issue:

(i)       that there was no evidence of permanent injury to vision;

(ii)      that the double vision suffered by the appellant was a symptom of tiredness.

I propose to deal with these two findings of facts together, as I consider them related.

[His Honour then considered these grounds of appeal in a manner not calling for report and concluded thereon:]

I am therefore of the firm opinion that the learned trial judge erred in finding that there was no evidence of permanent injury to vision. The double vision is an injury to vision. I consider also that the cursory reference to the double vision as merely “a symptom of tiredness and appears when the plaintiff tries to read or concentrate for too long” is to ignore the permanent injuries which give rise to it; that is the permanent injury to the superior oblique muscle, the disalignment and the reduced downward gaze in the left eye. It is not a normal double vision from normal tiredness. It is tiredness brought on more quickly and abnormally because of the contributing factors described. I consider this to be an error. The double vision is not attributed to the permanent injuries to the eye that I have referred to above, but merely to tiredness from reading or concentrating for too long. I consider this to be erroneous omissions of facts.

I therefore uphold the appellant’s submission that the learned trial judge made errors of facts in these findings.

LOSS OF FUTURE EARNING CAPACITY

The second main ground was that because of these errors in the primary conclusions of facts, the learned trial judge failed to estimate the appellant’s future employment prospects and to make an appropriate award in damages for loss of future earning capacity.

The learned trial judge had concluded (at 451) that:

“... there is no real evidence that there could be future economic loss. The Court cannot go so far into the uncertain future and say in 20 years time he may have been an airline pilot and he will now not be able to be therefore he will lose that income.”

It is true that there are great difficulties in a court forecasting into the uncertain and unknown future what the educational and thus employment prospects of an infant child might be. The amount of damages arrived at must necessarily be speculative in the extreme given the age of infant plaintiffs. But what has somehow to be quantified is the present value of the loss which the plaintiff will at some future time suffer as a result of the injury. “It must be remembered that, when assessing compensation for loss of future earnings, the court is not seeking to replace week by week the sums which the plaintiff would have earned. It is only giving compensation for loss of future earning capacity.”: per Lord Denning MR in Taylor v Bristol Omnibus Co Ltd [1975] 2 All ER 1107. In relation to “loss of future earnings”, Lord Denning MR said (at 1112-1113):

“Counsel for the defendants urged us to adopt a new attitude in regard to babies who are injured. He suggested that the loss of future earnings was so speculative that, instead of trying to calculate it, we should award a conventional sum of say £7,500. He suggested that he might follow the advice given by Lord Devlin in H West & Son Ltd v Shephard [1963] UKHL 3; [1963] 2 All ER 625 at 638, that is: (i) give him a sum as will ensure that for the rest of his life, this boy will not, within reason, want for anything that money can buy; (ii) give him, too, compensation for pain and suffering and loss of amenities; (iii) but do not, in addition, give him a large sum for loss of future earnings. At his very young age these are speculative in the extreme. Who can say what a baby boy will do with his life? He may be in charge of business and make much money. He may get into a mediocre groove and just pay his way. Or he may be an utter failure. It is even more speculative with a baby girl. She may marry and bring up a large family, but earn nothing herself. Or, she may be a career woman, earning high wages. The loss of future earnings for a baby are so speculative that I am much tempted to accept the suggestion of counsel for the defendants.

This suggestion is, however, contrary to present practice. In the children’s cases hitherto the courts have made an estimate of loss of future earnings.”

The significance of this passage is that, though the infant plaintiff was only four and a half years old at the time of the accident when he sustained the injury, the question of whether there could be future economic loss did not arise. The court did not shirk its responsibility and say as the trial judge did in this case that:

“The court cannot go so far into the uncertain future and say in 20 years time he may have been an airline pilot and he will now not be able to be therefore he will lose that income.”

I consider that it is erroneous to approach the task in this way. It is true that in Taylor v Bristol Omnibus and other reported cases, the plaintiffs did suffer quite severe injuries. But the courts have not made any distinctions between the degrees of injuries sustained by such plaintiffs as a basis for award of damages. The major factor has been whether the injuries are permanent and whether they may affect the plaintiff’s earning capacity when he enters school and ultimately the job market. If it is sufficiently established that the injury is permanent and that it may affect the earning capacity of the plaintiff in years to come, then the court must do the best it can, on established principles, to evaluate the possible loss of earning capacity in monetary terms, however speculative and imprecise that may be.

In Jones v Lawrence [1969] 3 All ER 267, the infant plaintiff, a boy aged seven years three months sustained lacerations and fractures including a fractured skull. He made an excellent recovery from his injuries but there was some evidence of permanent brain damage resulting in impairment of his ability to concentrate. The accident resulted, however, in his missing one term of schooling and his school work was adversely affected for two or three years thereafter. He failed the eleven-plus examination and thus failed to obtain a place in a grammar school and entered a comprehensive school instead. It was held by Cumming-Bruce J that as a result of his injuries, the infant plaintiff had failed to obtain a grammar school place; since that failure and the permanent impairment of his powers of concentration affected his job attainment potential, they were factors to be taken into account in assessing damages. His Lordship continued (at 271-272):

“I have come to the conclusion that as a matter of probability, having regard to the observation of Miss Treadwell, there is some permanent deterioration in brain function, evidenced by loss of capacity to concentrate. Without making any finding of lower intellectual level measurable to IQ, I find that there is a permanent deterioration of capacity to concentrate so that the infant plaintiff will never attain quite that capacity for intellectual effort which he would have attained before.... And his power to concentrate is permanently reduced for organic reasons.

On the other hand, his intellectual attainment, subject to impairment of concentration, is not shown to have been affected. Mr Williams and perhaps also Mr Small talked about a thing called job attainment, which is one of the factors that have to be considered in relation to the effect of children’s injuries. One of the relevant factors here is to assess how far the infant plaintiff’s future as a wage earner and as a person of social status in society has been impaired by the injury. In my view the loss of the opportunity of grammar school education and the permanent impairment of powers of concentration are significant in relation to the infant plaintiff’s future opportunity of attaining the kind of job that would otherwise have been open to him. Such stratification of society as exists in relation to jobs is subject to this factor, that boys of the age of 17 or 18 have openings for jobs with greater opportunity by virtue of qualifications as much as natural ability, and although the infant plaintiff’s natural ability has only been impaired in his capacity to concentrate, although he has attained popularity and is a sociable child and has all those advantages which mean a lot in relation to jobs, he has probable lost the qualifications that he would otherwise have had the opportunity of obtaining in relation to future employment of the better kind. That loss of opportunity together with permanent impairment of power of concentration implies some loss of future money earning capacity and, perhaps more important, a restriction on the openings available to a bright young man who has been to a grammar school.” (My emphasis.)

In D’Ambrosio v De Souza Lima (1985) 60 ACTR 18, reported in (1985) 60 ALR, the plaintiff, then aged six years and four months, was injured in a motor vehicle accident, and suffered a severe head injury resulting in brain damage. He would always be severely handicapped intellectually and emotionally, and would be unable to engage in any normal form of employment. He would always have a limited appreciation of his condition. It was held by Blackburn CJ that (at 18):

“In assessing compensation for future economic loss in the case of a young child, the court is involved, not in a process of calculation, but in making a social or value judgment about the value of capacity or chance to earn income.”

I entirely agree with this proposition. It is quite impossible to determine or ascertain what an infant’s loss in terms of financial quantification may be or will be many, many years into the future. It is value of the diminution in capacity or chance to obtain suitable employment to earn income that is to be assessed. The reality, depending on the injury, may be that it does not affect that opportunity but that is not what courts have to decide at the time of injury and trial. It is the reduction in his full capacity or full chance to aspire to all possibilities of employment opportunities open to him which is to be compensated.

The case of Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9 has been relied upon by the respondent. I accept that the common law principles are appropriate for adoption and application in this jurisdiction generally in the award of damages for loss of earning capacity. This case is of course concerned with loss of earning capacity of an adult plaintiff who is still employed at the time of trial, and the assessment and quantification of risk of loss of employment and the chances of obtaining further employment in that event. Browne LJ said (at 15) that:

“This head of damage generally arises where a plaintiff is, at the time of the trial, in employment, but there is a risk that he... may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. It is a different head of damage from an actual loss of future earnings which can already be proved at the time of the trial.”

Lord Denning MR said in Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40 at 42:

“It is important to realise that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages.”

Also (at 15) Browne LJ continued:

“As I have said, this problem generally arises in cases where a plaintiff is in employment at the date of the trial. If he is then earning as much as he was earning before the accident and injury (as in the present case), or more, he has no claim for loss of future earnings. If he is earning less than he was earning..., he has a claim for loss of future earnings which is assessed on the ordinary multiplier/multiplicand basis. But he may have a claim, or an additional claim for loss of earning capacity if he should ever lose his present job.”

In Smith v Manchester Corporation (1974) 17 KIR 1 at 8, Scarman LJ said that it was wrong to describe this sort of loss of earning capacity as a “possible loss”, and that:

“It is an existing loss: [the plaintiff] is already weakened to that extent though fortunately she is protected for the time being against suffering any financial damage because she does not, at present, have to go into the labour market.”

And (at 16) Browne LJ continued:

“But what has somehow to be quantified in assessing damages under this head is the present value of the risk that a plaintiff will, at some future time, suffer financial damage because of his disadvantage in the labour market.”

And (at 17) his Lordship continued:

“I do not think one can say more by way of principle than this. The consideration of this head of damages should be made in two stages.

(1)      Is there a `substantial’ or `real’ risk that a plaintiff will lose his present job at some time before the estimated end of his working life?

(2)      If there is (but not otherwise), the court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if that risk materialises, having regard to the degree of the risk, the time it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”

APPLICATION TO THIS CASE

I am of the view that the injuries suffered by the infant plaintiff to his left eye and the vision in the left eye are far more substantial than the trial judge’s judgment would suggest or reflects. In respect of the head of damage for loss of future earning capacity, I am of the view again that the trial judge erred in law. The authorities referred to are quite contrary to the conclusion of the trial judge quoted. The court has a duty to compensate for diminution of earning capacity, however long into the future that might be.

I adopt the views of Scarman LJ in Smith v Manchester Corporation to the facts of this case. The injuries I have described as being sustained by this plaintiff to his left eye and vision are quite substantial and permanent. I am of the opinion that the injuries will affect long concentration, downward gaze in the left eye and long reading ability, of the plaintiff. He will continue to suffer double vision intermittently because of these disabilities contributed to by the permanent damage to the superior oblique muscle. This condition will affect the performance of the plaintiff at school, as he has already begun to experience when he tries to study. It will continue to affect the range of employment opportunities that he might otherwise have had.

It is thus wrong to describe this loss of job attainment capacity as a “possible loss”. It is an existing loss; the plaintiff is already weakened to that extent in the range of employment opportunities open to him. I consider that the loss is substantial and that an award of damage should have been made. I do not accept that all the considerations enumerated in Moeliker v A Reyrolle & Co Ltd are applicable nor appropriate to an infant plaintiff’s case. Factors such as his skills, whether he is only capable of one type of work, or whether he is or could become capable of others; whether he is tied to working in one particular area, are quite inapplicable to the case of a tender aged infant such as the plaintiff in this case. Other factors such as his age, the nature of his disability, the nature of the father’s employment and whether it was likely that he would be given the opportunity of secondary or tertiary education, are, I accept, proper factors to be taken into account.

In the end result, in my opinion, the permanent injury to the left eye and vision of the plaintiff are such that there is “substantial” risk that his employment opportunities will be restricted on account of the said injuries. I adopt the words of Scarman LJ in Smith v Manchester Corporation (at 8) that:

“It is an existing loss, the plaintiff is weakened to that extent, though fortunately he is protected for the time being against suffering any financial damage because he does not, at present, have to go into the labour market.”

These errors were manifested in the general damages being low. I would therefore uphold the appeal and award general damages in the amount of K18,000.

CORY J: This is an appeal against an assessment of damages on the ground that the damages were inadequate. The plaintiff, a child of four and a half years was injured in a motor car accident in June 1984. He sustained lacerations to the forehead and eyelids and “a piece of glass went through the roof of the left orbit... of the brain”. The learned trial judge assessed damages as follows:

“Pain and Suffering: I have no doubt that the plaintiff did suffer great pain and distress following the accident. It would have been a frightening experience with such a young boy to be hurt in the area of the eye and being in pain and bandaged up and not able to see for a few days. [He was in hospital for ten days.]

Loss of Amenities and Enjoyment of Life: This follows from occasional double vision and tiredness in the left eye and loss of feeling in the forehead. I am satisfied that the plaintiff may suffer some inconvenience from his injuries, however, it is impossible to be sure what the future problems may be and to obtain an exact figure for such inconvenience. It is necessary for me to arrive at a figure that is reasonable in the circumstances.”

Earlier in his judgment the trial judge had referred to the fact that in addition there was substantial residual scarring in the region of the forehead and one scar extending from the forehead to the left upper eyelid.

Later in his judgment (at 452) the trial judge said “[a]llowing for past and future pain and suffering, discomfort and inconvenience which included the appellant’s scarring, and for the loss of amenities and enjoyment of life, I propose a figure of K12,000”.

The first ground of appeal is par 3(a):

That his Honour erred in law in failing to appreciate and/or adequately reflect in his reasons for judgment the evidence of injury in that his Honour erred in fact:

(i)       in finding there was no evidence of permanent injury to vision:

(ii)      in finding that the double vision suffered by the appellant was a symptom of tiredness.

The principle to be applied by the appellate court in an appeal against an assessment of damages was laid down in Lewis v Independent State of Papua New Guinea [1980] PNGLR 219, in the judgment of Andrew J, at 225:

“The fundamental principle is that the exercise of discretion by the trial judge in the estimation of damages ought not to be interfered with by an appellate court, unless the trial judge has erred in point of law or in his approach to the assessment or unless the assessment itself, by its disproportion to the injuries received, demonstrates error on the part of the trial judge: see Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.”

The first ground of the appeal is that the trial judge erred in fact in finding that there was no evidence of permanent injury to vision. I find that there was no error in fact by his Honour in this respect. Dr Hilton was the most recent eye specialist to examine the patient on 2/8/85 and he confirmed in his report dated 5 August 1985 the findings on examination carried out by the other eye specialists in 1984 and stated as follows:

“Examination showed that the vision in his left eye was normal being 6/6 and the right eye was normal being 6/6.... examination of the interior of the eye showed that there was no sign of any damage to lens or to the iris. The examination of the fundus showed that the retina was intact.”

There was no evidence in rebuttal of this medical evidence. I therefore reject this ground of appeal.

The second ground of appeal is that his Honour erred in finding that the double vision suffered by the appellant was a symptom of tiredness. There was evidence to support this finding, the evidence of the plaintiff’s mother, Mrs Coady, who stated that the double vision tended to come on once or twice a week at night, when the plaintiff was doing his homework and got tired. I would reject this ground of appeal.

Failure to award damages for the plaintiff’s loss of future earning capacity. This covers ground 3(b), (c), (d) and (e) of the appellant’s grounds of appeal.

The trial judge found that there was no real evidence to support an award for future economic loss. There are a number of cases in which courts have awarded damages for loss of future earnings in relation to injuries sustained by young children. These cases all relate to instances where the injuries have been so serious that the child would be unlikely to engage in any future employment or, at the most, be able to engage in only very limited kinds of employment. In the case of Taylor v Bristol Omnibus Co Ltd [1975] 1 WLR 1054, where the child was three and a half years of age and was hopelessly crippled and could not walk or feed himself or control his arms or speech, the court awarded £16,000 for future loss of earnings. In a case of less serious injuries Hutchinson v Sward [1966] ALR 1021, the plaintiff child was four years of age and suffered an injury to his eyes which left him with a range of vision restricted to a central field extending only over about 12 degrees. This was a decision of the High Court and in the joint judgment (at 1022) the court was of the opinion that the particular injury would “prove a serious obstacle in a very wide field of academic or professional pursuits and that his disability will constitute a practical disqualification for many senior posts”. The amount was $4,000 for future economic loss. There does not appear to be any cases where an amount has been allowed in damages to compensate for injuries to young children for loss of future earning capacity, where the injury is serious but the nature of the injury is such, taking into account the rest of the child’s surrounding circumstances, that there is either only a probability or a mere possibility that it will lead to a loss of future earnings.

In the case of adults who are injured and who are working at the date of their trial, the criteria to be adopted for determining whether any damages should be awarded for loss of future earning capacity, if the plaintiff should lose his present job, was considered in the case of Moeliker v A Reyrolle & Co Ltd [1977] 1 All ER 9. In that case Browne LJ (at 15) reviewed the criteria adopted by Scarman LJ in an earlier case of Smith v Manchester Corporation [1974] 17 KIR 1 at 18 and said (at 16) that:

“what has somehow to be quantified in assessing damages under this head is the present value of the risk that a plaintiff will at, some future time, suffer financial damage because of his disadvantage in the labour market.”

Browne LJ, (at 16) then proceeded to analyse the abovementioned risk of a plaintiff who was still at work at the date of his trial and said “I think the question is whether there is a `substantial’ risk or is it a `speculative’ risk?” (see A P Davies v Taylor [1974] AC 207, Lord Reid (at 212) and Lord Simon of Glaisdale (at 220)). In deciding this question all sorts of factors will have to be taken into account, varying almost infinitely with the facts of particular cases. For example, the nature and prospect of the employer’s business; the plaintiff’s age and qualifications; his length of service; his remaining length of working life; the nature of his disability; and any undertaking or statement of intention by his employers as to his future employment. If the court comes to the conclusion that there is no “substantial” or “real” risk of the plaintiff losing his present employment during the rest of his working life, no damages will be recoverable under this head..., if however there is a “substantial” risk that a plaintiff will lose his present job at some time before the end of his working life, it will now be necessary to go on and consider:

(a)      how great this risk is; and

(b)      when it may materialise.

The next stage is to consider how far he would be handicapped by his disability if he was thrown onto the labour market, that is, what would be his chances of getting a job and an equally well paid job. Again, all sorts of variable factors will, or may, be relevant in particular cases, for example, a plaintiff’s age; his skills; the nature of his disability; whether he is only capable of one type of work or whether lie is, or could become, capable of others; whether he is tied to working in one particular area; the general employment situation in his trade or his area, or both.

Browne LJ then proceeded to formulate the principles to be applied in assessing damages under this head for a person at work at the date of the trial as follows (at 17):

“The consideration of this head of damages should be made in two stages:

(1)      Is there a substantial or real risk that a plaintiff will lose his present job at some time before the estimated end of his work in life?

(2)      If there is (but not otherwise), that court must assess and quantify the present value of the risk of the financial damage which the plaintiff will suffer if the risk materialises, having regard to the degree of the risk, the time when it may materialise, and the factors, both favourable and unfavourable, which in a particular case will, or may, affect the plaintiff’s chances of getting a job at all, or an equally well paid job.”

Another way of expressing the first principle above would be to ask:

(1)      Is there a substantial risk that the plaintiff will have to re-enter the employment market as a result of his injuries?

What then is to be the position in the case of a person who is not working at the date of his trial? Because this is the situation of a young child who has sustained certain injuries, there will come a stage in his life when he will enter the employment market in competition with others who have not sustained any injuries. Adapting the criteria laid clown in Moeliker’s case, it would seem that the appropriate first question for the court to ask would be:

(1)      Is there a substantial risk that the plaintiff’s range of employment opportunities will be restricted as a results of the injuries which he has sustained?

If the court is satisfied that there is a substantial risk, the court should then proceed to the second stage as set out above, that is:

(2)      Assess and quantify the present value of the risk of the financial damage the plaintiff will suffer.

In making this assessment the same factors would apply as in the case of an adult working at the time of his trial, but running a substantial risk of losing his employment on account of his injuries, as mentioned by Browne LJ (at 16) namely “a plaintiff’s age; his skills; the nature of his disability; whether he is only capable of one type of work, or whether he is or could become capable of others; whether he is tied to working in one particular area; the general employment situation in his area”. In addition in the case of a young child, the court could consider the nature of his father’s employment and whether it was likely that he would be given the opportunity of secondary or tertiary education.

In applying this criteria to the facts of the present case:

(1)      I am satisfied that there is a substantial risk that the range of the plaintiff’s employment opportunities will be restricted on account of the injuries which he has sustained.

(2)      As the only factor which the court has to rely upon is the nature of his injury, and as the injury is not a seriously disabling one, I am not satisfied that this particular injury would cause “financial damage” to the plaintiff in the future.

He could not do micro-surgery or certain kinds of fine engineering work, but apart from this, the whole range of employment opportunities would still be open to him. For these reasons I would not assess any amount for the loss of future earning capacity. I find that there is no error in the conclusion reached by the trial judge in this regard.

The final ground of the appeal is that the amount of K12,000 general damages was an inadequate sum in the light of injuries suffered by the plaintiff. The amount of damages awarded is not so low as to be beyond the trial judge’s discretion. The trial judge had the opportunity of seeing the extent of the scarring and the amount of damages awarded is within the range of other injuries of a comparable nature. I would dismiss this ground of appeal.

(By majority) Appeal dismissed

Lawyers for the appellant: Kirkes.

Lawyers for the respondent: Young & Williams.