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Halvorson v Buckthought [1962] PGLawRp 12; [1964] PNGLR 33 (26 October 1962)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 33 - Halvorson v Buckthought

[1964] PNGLR 33

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HALVORSON

V

BUCKTHOUGHT

Port Moresby

Minogue J

26 October 1962

DAMAGES - Assault of officer of Public Service in execution of duty - Hospital and medical charges due but unpaid - Power of Public Service Commissioner to remit charges - Whether charges recoverable as special damages - Rights of Administration to recover charges from defendant - Public Service Regulations

REGULATION 101 - Public Hospitals (Charges) Regulations 1956.

The plaintiff. an officer of the Public Service of the Territory, was assaulted in the execution of his duty by the defendant. He claimed in addition to general damages special damages of �101 4s. 0d. representing the cost of hospital and medical treatment necessitated by the assault. These charges, imposed pursuant to regulations remained unpaid at the date of hearing. If he were unsuccessful in his action the plaintiff could apply to the Public Service Commissioner for remission of the charges.

Held:

N1>(i)������ That the plaintiff was entitled to recover the sum of �101 4s. 0d. as special damages. Blundell v. Musgrave[1956] HCA 66; , (1956-1957) 96 C.L.R. 73 applied.

Right of the Administration to recover from the defendant medical and hospital expenses paid on behalf of officer injured in execution of his duty considered.

Attorney-General for New South Wales v. Perpetual Trustee Co. (Ltd.) [1952] HCA 2; (1952) 85 C.L.R. 237 and Commissioner for Railways (N.S.W.) v. Scott, [1959] HCA 29; (1958-1959) 102 C.L.R. 392 referred to.

Writ of Inquiry:

The facts and the arguments of counsel appear sufficiently from the judgment.

Counsel:

White, for the Plaintiff.

MINOGUE J:� In this action which came before me on a Writ of Inquiry for the assessment of damages, I awarded the Plaintiff �1,550 by way of general damages.

In addition to the claim for general damages I was asked to award the sum of �101 4s. 0d. claimed as special damages. This amount represented the cost of hospital and medical treatment at the European Hospital, Port Moresby, such treatment being rendered necessary by the Defendant�s assaulting the Plaintiff on the 18th March, 1962. I expressed doubt as to the Plaintiff�s right to be awarded the amount in question and gave leave to Mr. White, who appeared for the Plaintiff, to lead further evidence and address further argument to me. Pursuant to this leave Mr. White led evidence from Mr. Rolfe, an Assistant Inspector in the office of the Public Service Commissioner, who deposed that the Plaintiff was and is liable to pay the hospital account (which includes amounts for medical and surgical treatment) although, he said, if the Plaintiff were unsuccessful in his action he could apply to the Public Service Commissioner for remission of the account.

It was clear to me that the Plaintiff was injured in the execution of his duty through no fault of his own and the evidence showed that he had received his full salary during the period of his incapacity. I assume that these payments were made pursuant to Regulation 101 of the Public Service Regulations and it seems to me that the probability is that (in accordance with Regulation 101 (3)) his leave of absence is not or will not be deducted from the period of sick leave at his credit.

As I understand the position, no payment has been made by the Administration pursuant to Regulation 101 (2) although I would have thought that the circumstances would clearly allow of such a payment and if one were made the Administration could sue the Defendant either in a per quod action (See Commissioner for Railways (N.S.W.) v. Scott[xxix]¹�or in an action for damages of the kind adverted to by Fullagar J. in Attorney-General for N.S.W. v. Perpetual Trustee Co. (Ltd.)[xxx]²�and later in Commissioner for Railways v. Scott[xxxi]³�at p. 408).

But the hospital charges in my opinion are none the less legally due by the Plaintiff unless and until some action is taken to relieve him of them. And that action has not been taken. The charges are imposed by virtue of the Public Hospital (Charges) Regulation 1956. Those Regulations provide that the fees to be paid by patients are as set out in the Schedule and the fees charged the Plaintiff appear to be in accordance with the Schedule.

I was referred by Mr. White to Blundell v. Musgrave[xxxii]⁴�and I am of the opinion that the evidence does show that the Plaintiff is under a legal liability to pay the charges in question. As was said in the majority opinion in Blundell v. Musgrave3 it was of no consequence that the Naval Board might forgive the whole or part of the charge for hospital expenses there in question in the event of the Plaintiff not succceeding in his action for damages.

Accordingly I hold that the sum of �101 4s. 0d. forms part of the damage in respect of which the Plaintiff is entitled to recover in this action.

N1>There will be judgment for the Plaintiff for �1,651 4s. 0d. with costs to be taxed.

N1>Judgment accordingly.

Solicitor for the Plaintiff: Norman White.