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Guatal v The State [1981] PGNC 70; [1981] PNGLR 230 (30 July 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 230 - Vian Guatal v The State�

[1981] PNGLR 230

N308

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

VIAN GUATAL

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Miles J

20 October 1980

2-3 June 1981

30 July 1981

NEGLIGENCE - Fatal accidents legislation - Damages - Measure of - Economic loss for lost years - Not recoverable - Post Independence English cases not followed - Damages for loss of expectation of life only recoverable - Conventional sum awarded - Law Reform (Miscellaneous Provisions) Act, 1962, s. 17.

NEGLIGENCE - Acts etc. causing death - Negligent act of member of defence force - Injury to fellow member of force - Motor vehicle accident - No rule precluding recovery of damages.

DEFENCE - Tort - Acts in peacetime - Acts causing death - Liability of State - Negligent act of member of defence force - Injury to fellow member of force - Motor vehicle accident - No rule precluding recovery of damages.

PRACTICE - Pleadings - Amendment - Liability admitted - Leave to plead defence sought - Granting of leave discretionary - Proposed defence not available - Leave refused.

PRACTICE - Pleadings - Issues of law - All available issues of law should arise on pleadings.

In an action under Pt. 5 of the Law Reform (Miscellaneous Provisions) Act 1962 by a customary personal representative claiming damages in respect of the death of his son, a member of the defence force, as a result of a motor vehicle collision in which the deceased was a passenger, and being driven by a fellow member of the force, the defendant admitted liability but at an adjourned hearing sought by notice of motion to add a ground of defence, namely:

�By way of common law defence the Defendant intends to rely on the rule of law whereby a serving member of the defence force cannot recover damages from a fellow member or from the state for injury caused by negligence in the course of his duties.�

Held:

N1>(1)����� Any issue of law which a party seeks to argue should arise from the facts pleaded or proved;

N1>(2)����� Where a party seeks to raise an issue of law which has not been pleaded he should amend his pleadings;

N1>(3)����� Granting of leave to so amend is discretionary;

New Guinea Company Ltd. v. Thomason [1975] P.N.G.L.R. 454, referred to;

N1>(4)����� There is no rule of law applicable in Papua New Guinea whereby a serving member of the defence force is precluded from recovering damages from a fellow member or from the State for injuries caused by negligence in the course of duties;

Parker v. The Commonwealth of Australia [1965] HCA 12; (1965) 112 C.L.R. 295 not followed;

N1>(5)����� The proposed amendment, raising as it did a defence which could not succeed should not be allowed;

N1>(6)����� The appropriate rule to be applied in Papua New Guinea where an injured person dies as a result of the defendant�s negligence, is, that there is no right to recover damages for economic loss during the lost years which will survive for the benefit of the estate;

Oliver v. Ashman [1961] 3 All E.R. 323, followed.

Pickett v. British Rail Engineering Ltd. [1979] 1 All E.R. 774, and Gammell v. Wilson [1980] 2 All E.R. 557, not followed;

N1>(7)����� The only damages recoverable therefore were those to be awarded for loss of expectation of life, represented by the conventional sum of K1,500.

Action.

This was an action brought under Pt. 5 of the Law Reform (Miscellaneous Provisions) Act 1962 to recover damages in respect of death of the plaintiff�s son as a result of a motor vehicle accident.

Counsel:

S. Cox, for the plaintiff.

R. Gunson, for the defendant.

Cur. adv. vult.

30 July 1981

MILES J:

GENERALLY

This is an action brought on behalf of the estate of Penias Guatal, a deceased member of the defence force of Papua New Guinea. The deceased was killed as a result of a motor vehicle collision involving a defence force vehicle in which he was riding as a passenger. The collision occured on 19th September, 1975, and the deceased died soon afterwards, a few days after Independence came to this country. The claim is made that the State is responsible for the negligence of the driver, a fellow member of the force.

When the matter was called on for hearing before me on 20th October, 1980, Mr. Gunson for the State announced that liability was admitted and that the only issue between the parties was the amount of damages which should be awarded in favour of the plaintiff. I observed at the time that according to the statement of claim the plaintiff sued as the father and �customary personal representative� of the deceased. It is alleged that it is a custom of the clan of the deceased that upon the death of a member of the clan the property of that member should pass to another member to administer the property according to custom, and that the plaintiff is the member of the deceased�s clan who is so entitled to administer the property of the deceased. Although these matters were put in issue in the statement of defence, counsel for the State has clearly admitted them in open court. The question of the capacity of the plaintiff to sue is therefore not in issue and the decision of the court does not involve any adjudication on this question.

Because the case proceeded as an assessment of damages only, let no-one think that it is free from difficulty or indeed importance. The writ was issued on 27th February, 1980, and the statement of claim alleges in its final paragraph that �by reason of the matters aforesaid the life of the said Penias Guatal was considerably shortened by reason of which his estate suffered loss and damage�. One might have assumed that the claim was limited to the conventional sum usually awarded in respect of loss of expectation of life to an estate of a deceased person killed by a defendant�s wrongful act. But when the case was opened on behalf of the plaintiff, Ms. Cox who appeared to argue it stated that she was claiming the value of the earnings which the deceased might have earned over the whole of his remaining working life had he not been injured by the defendant�s act. In making this claim she raised the ghost that many thought had been laid to rest as long ago as 1935: Slater v. Spreag[ccclxviii]¹�but which had made its reappearance in two recent English cases: Kandalla v. British Airways Board[ccclxix]²�decided on 18th October, 1979, by a single judge, and Gammell v. Wilson[ccclxx]³�a decision of the Court of Appeal handed down on 1st April, 1980. Mr. Gunson for the State met this unexpected challenge with admirable calm and stated that he would merely ask for time to reply to Ms. Cox�s submissions of law. I then proceeded to hear the evidence at the end of which I stood the matter over for submissions to be delivered. However, no doubt inspired by the alacrity with which the Public Solicitor had kept abreast of and indeed anticipated legal developments in England, Mr. Gunson telephoned London and ascertained from counsel there that Gammell v. Wilson (supra) was on appeal and would be heard in the House of Lords later in the year. I therefore informed the parties that the matter would be relisted for argument after the House of Lords� decision became available.

N1>In due course we learned that the House of Lords had upheld the decision of the Court of Appeal and the case was relisted for argument on 2nd June, 1981. A print copy of the decision of the House of Lords has been made available[ccclxxi]⁴.

N1>In the meantime on 29th May, 1981, the State filed a notice of motion asking for leave to add a ground of defence, namely:

N2>�4.����� By way of common law defence the Defendant intends to rely on the rule of law whereby a serving member of the defence force cannot recover damages from a fellow member or from the state for injury caused by negligence in the course of his duties.�

RIGHTS AND LIABILITIES OF MEMBERS OF DEFENCE FORCE

At the adjourned hearing on 2nd June, 1981, Mr. Gunson put submissions in support of the notice of motion.

However, preliminary to that application Mr. Gunson put a wider submission which I take was part of his final address (although in the normal course of events having called no evidence, the defendant had the right to follow the plaintiff in order of addresses). This submission was that leave to amend was in any event unnecessary and that on the facts as presently known to the court, the defendant had the right to submit that the plaintiff�s claim must as a matter of law fail.

In order to succeed the plaintiff must show that the defendant would have been liable in damages to the deceased if he had lived: Law Reform (Miscellaneous Provisions) Act 1934, s. 17(1). The defendant submits that because the deceased was a serving member of the defence force he was not entitled to bring an action against the State based upon the negligent act of a fellow serving member of the defence force. The statement of claim alleges and the statement of defence as first amended admits as follows:

N2>�2.����� On or about the 19th September, 1975 at about 10.20 a.m. the deceased was a passenger in a Toyota Hi-Ace motor vehicle registration number 1.614 (the vehicle) owned by the Defendant and being driven by Private b. konts, now deceased (the driver) along the Goldie River Road, a public street, near the Goldie River Training Depot, Central Province, P.N.G.

N2>3.������ At all material times the driver was the servant or agent of the Defendant and was acting within the scope of his employment with the Defendant.

N2>4.������ At the time and place stated the said vehicle was driven onto its incorrect side of the road and collided with a bus which was travelling along the said road in the opposite direction.

N2>5.������ The collision was due to the negligence of the driver of the Defendant�s vehicle.�

The preliminary point to be decided is simply whether the State ought to be permitted to argue this defence without having raised it on the pleadings and without amending the defence and indeed after having admitted liability in open court. Counsel for the State relies upon a decision of Windeyer J. sitting at first instance in the original jurisdiction of the High Court of Australia in Parker v. The Commonwealth of Australia[ccclxxii]⁵�in which his Honour said:

�To speak of an admission of liability can be misleading. A defendant may admit any allegation of fact. But a defendant cannot by admitting that facts alleged entitle the plaintiff to have damages require the Court to assess and award damages unless those facts would in law have that consequence. The Court can only assess damages when it appears, from facts admitted or proved, that there was a legal wrong entitling the plaintiff to damages according to some measure recognized by law.�

In that case the point was raised by his Honour when counsel for the defendant apparently wished not to rely on it. I would with respect agree that it is always within the power of a court to refuse to be a party to what might amount to an abuse of process where for instance the parties to an action purport to agree to give the court a jurisdiction it does not possess. Furthermore, in Papua New Guinea constitutional considerations�particularly s. 155(4) of the Constitution�confirm the existence of that power. But whether the power should be exercised is a different matter and is I think a matter of discretion.

By O. XXII r. 14 of the Rules of the National Court, each party must raise by his pleading �all matters of fact which show that the claim of the opposite party is not maintainable� and all grounds of defence or reply must be pleaded which, if not raised, would be likely to take the opposite party by surprise or would raise issues of fact not arising out of the present pleadings. Ordinarily speaking then, if a party wishes to raise an issue which has not been pleaded he will have to amend his pleading and it is perfectly clear why this is so: it is to enable the other party to know exactly the case he has to meet, to enable the court hearing the action to know the issues of fact and law between the parties to be decided and to enable an appellate court to know what those issues were when they were decided.

On the present state of the pleadings the material allegations made by the plaintiff and admitted by the defendant were in pars. 2 to 5 of the statement of claim to which I have already referred.

For reasons to which I will shortly refer, the admission of these allegations does not of itself raise an issue of law of the kind that Mr. Gunson wishes to raise and an amendment to the defence is therefore necessary.

I turn now to the notice of motion seeking the further amendment of the defence by the addition of par. 4. Granting of leave to amend is discretionary. Some of the matters to be taken into consideration are set out in the judgment of Saldanha J. in New Guinea Company Limited v. Thomason[ccclxxiii]⁶. A number of discretionary factors were raised by Ms. Cox in her opposition to the allowing of the amendment but I will deal with only one as I think it is decisive. In my view the proposed amendment does not raise a defence which at this stage of the trial after the completion of evidence can succeed.

N1>The broad proposition of law put by the State is that in no circumstances may a serving member of the defence force recover damages from a fellow member for injury caused in the course of his duties.

N1>Mr. Gunson submits that this principle, now part of the Crown Proceedings Act 1947 (U.K.), should be regarded as representing the common law of England at Independence in 1975 and that there is no reason why it should not be a rule of the underlying law of this country. Counsel relies for a statement of the common law on the decision of Windeyer J. in Parker�s case[ccclxxiv]⁷. It is important to remember about that case that on the facts it turned out to be an action not by a member of the armed forces but by a civilian, so that what his Honour had to say about actions by serving members of the forces was entirely obiter. Furthermore despite the eloquence with which his views are expressed, his Honour acknowledged that the decision was not necessarily binding upon himself, that he was not expressing any final opinion and that the general question with which we are concerned here was open in the House of Lords and in the High Court.

N1>I have read the English decisions to which Windeyer J. referred and upon which Mr. Gunson said he relied for the principle that the common law does not allow a member of the forces to bring an action against another member for an act done in the course of duty. This was an interesting and time-consuming exercise. In my respectful view, the authorities do not support the broad principle expressed. I agree with the author P. W. Hogg (Liability of the Crown, Melbourne 1971, p. 97) that the authorities are �far from compelling�. I note that a judge of the New South Wales Supreme Court, Begg J., has closed judicial ranks with Windeyer J. and has expressed strong disapproval of Mr. Hogg�s remarks: Connell v. Commonwealth[ccclxxv]⁸. In reaching my own conclusion I am obliged to give primary consideration to the English cases themselves.

N1>The earliest case, Sutton v. Johnstone[ccclxxvi]⁹, dealt with events during the war between George III and �the French King, His most Catholic Majesty�. The plaintiff was in command of a vessel engaged in a naval battle at Port Praya Bay, St. Jago. He was charged by his superior officer with disobeying orders and arrested, tried by court martial and acquitted. He sued his commanding officer for malicious prosecution and false imprisonment. It was held that the defendant had reasonable cause for charging him for disobeying orders. In the course of deliberations the Law Lords considered the principles concerning action by a subordinate officer against his superior and spoke of the threat to military discipline that such action might entail. In the course of the discussion the following appears at pp. 503 and 504:

�It is said, subordinate officers may be brought to a court-martial for improper conduct, and that no action lies for anything done in a course of discipline, or under powers incident to situation ... but ... all men hold their situations in this country upon the terms of submitting to have their conduct examined and measured by that standard which the law has established.�

However, in later cases it seems to have been thought that Sutton v. Johnstone[ccclxxvii]¹⁰�established that cases involving questions of military discipline and military duty alone are cognizable only by a military tribunal and not by a court of law: Dawkins v. Lord Rokeby[ccclxxviii]¹¹. The wider question of whether a subordinate may sue a superior officer became enmeshed with the question of whether a soldier had the right to sue to enforce monetary provisions laid down in royal warrants and the like: Mitchell v. The Queen[ccclxxix]¹². After the First World War there seems to have been a spate of similar actions seeking damages for loss of retirement pay and in one such, Fraser v. Hamilton[ccclxxx]¹³, the Court of Appeal went so far as to say that �when a man became a member of the Navy or Army he subjected himself to a code of law which ousted the jurisdiction of the ordinary courts and provided redress for any grievance�. But in Fraser v. Balfour[ccclxxxi]¹⁴�the House of Lords (as Windeyer J. acknowledged) said that the wider question was still open and could not be decided upon the material before it. In the lengthy considered judgment of McCardie J. in Heddon v. Evans[ccclxxxii]¹⁵�the sweeping statement of principle in Fraser v. Hamilton (supra) as reported was explained by saying that �the shorthand notes of the judgments ... afforded aid to an appreciation of the judgments delivered�, and it was left at that. The case being tried was an action by a private soldier against his commanding officer for slander, malicious prosecution and false imprisonment, all arising out of a charge laid by the officer involving alleged breach of military discipline on the part of the soldier. In finding for the defendant McCardie J. said the following (at pp. 643, 644 and 645):

�A military ... officer will be liable to an action for damages, if ... in excess of ... (his) jurisdiction ... he does, or directs to be done ... an act which amounts to ... false imprisonment, or other common law wrong, even though the injury purports to be done in the course of actual military discipline ... if the act ... be within (his) jurisdiction and (is done) in the course of military discipline no action will lie upon the ground only that such act has been done maliciously and without reasonable and probable cause.

�The liberty of a soldier should not be infringed save insofar as that infringement was justified either by the law military or the law civil. The question of justification should ultimately be determined by the ordinary Courts of law ... if however, the rights which he sought to assert were fundamental common law rights, such as immunity of person or liberty, save insofar as taken away by military law, then the common law right might be asserted in the ordinary Courts. Strange results might follow if it were otherwise.�

It is thus apparent that apart from the Times Law Report of the decision in Fraser v. Hamilton[ccclxxxiii]¹⁶, there is no support in English authority for the general proposition that a serving member of the armed forces may not sue another serving member for anything done in the course of duty. To the extent that it is applicable to the present case I think that the passage of McCardie J. should be regarded as a proper starting point for ascertaining the relevant underlying law in Papua New Guinea, and if necessary for developing the underlying law by the enunciation of a new rule pursuant to Sch. 2.2 and Sch. 2.3 of the Constitution.

N1>It may well have been the common law in 1975 that no-one, either civilian or soldier, can bring an action for negligence based upon anything done in the course of actual operations of war (see Shaw Savill and Albion Company Limited v. The Commonwealth[ccclxxxiv]¹⁷) and that a serving member cannot sue another member for anything done in the course of warlike activities such as peacekeeping operations, as suggested by Windeyer J., or even manoeuvres which simulate the conditions of warfare. I make no decision on these matters because they are not necessary for the present case and I have not heard argument as to the relationship between the common law and the Crown Proceedings Act 1947 (U.K.), having regard to the questions raised in Booth v. Booth[ccclxxxv]¹⁸�and the consequences for the law of this country.

N1>There has been no reference to custom on this issue and in the absence of any knowledge I can only find that there is no custom applicable. In my view there is no rule of common law or of custom or therefore of the underlying law which prevents a serving member of the defence force suing another serving member for an act done in the course of duty but outside the course of actual operations of war or warlike activities.

N1>This view is supported by the constitutional considerations relied upon by Ms. Cox, namely s. 203 and s. 208 of the Constitution.

N1>Section 203 provides as follows:

N2>�203.�� APPLICATION OF GENERAL LAW.

Since it is necessary that the Defence Force and the members of the Defence Force have no special position under the law except to such extent as is required by the nature of the Force as a disciplined force and its peculiar functions, duties and responsibilities, it is hereby declared that, except as is specifically provided by a Constitutional Law or an Act of the Parliament, the Defence Force and the members of the Defence Force are subject to all laws in the same way as other bodies and persons.�

Section 208 is in the following terms:�

N2>�208.�� PROTECTION OF MEMBERS OF DISCIPLINED FORCES.

(1)����� Because of the special nature of disciplined forces and of their operations, it is a primary duty of their members to obey lawful orders, and accordingly an Organic Law shall make special provision for relieving a member of such a force from responsibility for the consequences of�

(a)����� carrying out a lawful order; or

(b)����� carrying out an order which he honestly, and on reasonable grounds believed to be a lawful order, in which case the onus of establishing his belief and the reasonable grounds on which it was based, shall be upon him.

(2)����� Without derogating any other right to compensation from an authority responsible for the disciplined force concerned, an Organic Law made for the purpose of Subsection (1) shall make provision for any liability to make compensation that would otherwise lie on a member of a disciplined force to lie on the authority responsible for the force.�

I have been referred to Organic Law No. 16A on the Relief of Members of Disciplined Forces from the Responsibility for the Consequences of Carrying Out a Lawful Order which has been made in order to implement s. 208. I do not think that s. 208 or the Organic Law are directly relevant to the present case as the defendant is not seeking to rely upon any lawful order which may have given rise to the injury sustained by the deceased. However s. 208(2) and the Organic Law 16A, s. 3 effectively preserve the right of a person entitled to take action against the State for the conduct of a member of a disciplined force acting pursuant to a lawful order and do not limit that right to non-members of the force.

I return to the provisions of s. 203. There may be some difficulty in applying the phrase �subject to all laws� to the deceased in this particular case, but it is clearly applicable to his fellow member, the driver of the car in which he was killed. In other words, that fellow member being �subject to all laws in the same way as other bodies and persons� is accordingly liable to persons injured by his acts of negligence. It would be unfair and illiberal I think, having regard to the clear purpose of s. 203 that the general law to be applied to the defence force and its members, to read it down to the effect that members of the force incur the liabilities but do not acquire the rights of citizens.

Section 203 is subject to the qualification that the �peculiar functions, duties and responsibilities� of the defence force may, to the extent as is required by the nature of the force as a disciplined force, bring about the exclusion of the general law. This I think is consonant with what I have said about acts occurring during the course of operations of war, warlike activities and also in relation to acts done in pursuance of lawful command. But none of those matters is raised in the proposed defence. The facts relied upon by the defendant are merely those facts somewhat loosely pleaded by the plaintiff as set out above. It could not possibly be inferred from those allegations that the deceased and his fellow soldier were at the time of his injury engaged in warfare or warlike activities of the nature I have mentioned, or that the deceased was injured by an act done in pursuance of a lawful command.

On those facts it cannot be successfully pleaded as a defence that the deceased was unable to sue the driver of the vehicle because at the time of injury they were both serving members of the defence force. The State admits that if the driver was liable to the deceased then the State was vicariously liable. The notice of motion is dismissed. I formally return a verdict for the plaintiff, and turn to the assessment of damages recoverable on behalf of the estate of the deceased.

FACTS: ASSESSMENT OF DAMAGES

[His Honour then weighed the evidence as to damages concluding that an appropriate figure for economic loss would be K6,000 and continued:]

Whether or not it is to be awarded however depends upon whether the decision in Gammell�s case[ccclxxxvi]¹⁹�should be followed. I now proceed to consider that question.

THE �LOST YEARS� AND SURVIVAL OF ACTIONS

The Law Reform (Miscellaneous Provisions) Act 1962 (hereinafter called �the Act�) is a statute of Papua New Guinea by reason of its adoption upon Independence through Sch. 2 of the Constitution. Part V of the Act is similar to provisions of the like-titled statute passed in England in 1934 and abolishes the common law rule that an action for damages abates upon the death of the person otherwise entitled. Section 17(1) provides that all causes of action subsisting against or vested in a deceased person at the time of his death survive against or for the benefit of his estate. However by virtue of s. 17(3) the damages recoverable by the estate are not identical with those which would have been recoverable by the deceased had he lived. Section 17(3) provides as follows:

N2>�(3)��� Where a cause of action survives under this section for the benefit of the state of a deceased person, the damages recoverable for the benefit of the estate of that person�

(a)����� do not include exemplary damages;

(b)����� in the case of a breach of promise of marriage, are limited to such damages (if any) to the estate of that person as flow from the breach of the promise to marry; and

(c)����� where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.�

There are accordingly two questions that need to be decided in assessing damages in an action brought on behalf of the estate of a deceased person. Firstly, what damages would the deceased have been entitled to immediately before his death? Secondly, is the amount of damages recoverable on behalf of the estate affected by s. 17(3) of the Act?

If the present case had fallen to be decided prior to Independence, the answer to the first question would have been simple. The pre-Independence Supreme Court would have been constrained to follow the decision of the High Court of Australia in Skelton v. Collins[ccclxxxvii]²⁰�that the damages awarded to a living plaintiff whose expected life span has been shortened by injury include loss of income earning capacity during �the lost years� which he would have lived but for the injury (cp. R. S. O�Regan, �The Common Law in Papua and New Guinea�, Sydney, 1971, pp. 71-72). Likewise, if the present case had fallen to be decided after Independence and prior to 1980 it might have remained relatively simple. Whether a living plaintiff is entitled to damages for economic loss during the lost years is not a matter governed by any statute of Papua New Guinea and is to be determined by reference to the underlying law. The matter is not, as far as I am aware, governed by custom and one goes on then to look at the common law in accordance with Sch. 2.2 of the Constitution. The common law as it existed in England immediately prior to Independence is to be applied and enforced as part of the underlying law unless inconsistent with a Constitutional Law or a statute or with custom and unless inapplicable or inappropriate to the circumstances of the country from time to time.

N1>The common law in England on this subject, as it would have been understood at the time of Independence, was as declared by the Court of Appeal in Oliver v. Ashman[ccclxxxviii]²¹�and it was contrary to the law in Australia as stated by the High Court of Australia in Skelton v. Collins[ccclxxxix]²². The English Court of Appeal held that a living plaintiff was not entitled to damages for economic loss during the lost years. Hence the question as to whether his estate was entitled to such damages if he were killed did not arise. That was the common law situation in England as it was understood in that country immediately prior to Independence, and at the time of the death of Penias Guatal. The understanding continued for some years.

N1>In 1979 the situation began to change dramatically. In Pickett v. British Rail Engineering Ltd[cccxc]²³�the House of Lords overruled the Court of Appeal decision in Oliver v. Ashman[cccxci]²⁴�and held that an injured plaintiff whose life had been shortened as a result of the defendant�s negligence was entitled to be compensated for any loss of earnings during the lost years, the period when but for the injury he would have been likely to remain alive and continue in remunerative work. The next step has been taken recently in Gammell v. Wilson[cccxcii]²⁵�in which the House of Lords confirmed the decision of the Court of Appeal[cccxciii]²⁶�that where the injured person is killed as a result of the defendant�s negligence, the right to damages for economic loss during the lost years survives for the benefit of his estate.

N1>I do not think I need for the purposes of the present judgment to discuss at length how the English law has developed to its present state. The judgment of Lord Diplock in Gammell v. Wilson (supra) shows with admirable clarity the steps �down the slippery slope that led to a morass from which I think that only Parliament can now extricate us�. The learned Law Lords were all of a view similar to that of Lord Diplock that the law had reached a state for which there is no social, moral or logical justification. Is it necessary or desirable for the law in Papua New Guinea to be left in such a similar unsatisfactory state without Parliamentary intervention?

N1>Before turning to the �common law� considerations, I should state my own view that the question is not to be resolved by reference to s. 17(3) of the Act. As long ago as 1935 MacKinnon J. appeared to have perceived the Pandora�s box that might have been opened and in Slater v. Spreag[cccxciv]²⁷�he sought to keep the lid shut by holding that whatever the nature of the injured person�s claim might have been, the statutory provisions equivalent to our s. 17(3) prevented the claim for the lost years surviving for the benefit of the estate. The reasons given to the contrary in the judgment of Lord Edmund-Davies (with which the other Law Lords seem to have agreed) in Gammell v. Wilson[cccxcv]²⁸�are in my view unassailable, despite the dissenting judgment of Megaw L.J. in the Court of Appeal, which Mr. Gunson submitted I should follow. If there is a claim by the injured person for economic loss during the lost years, that claim is not a gain to his estate consequent upon his death under s. 17(3) and it will survive for the benefit of his estate.

N1>Ms. Cox has drawn attention to s. 13(d) of the Act which provides that in actions brought on behalf of relatives dependent upon the earnings of the deceased (known elsewhere as Fatal Accident claims or Lord Campbell�s Act claims but not, be it noted, survival actions on behalf of the estate) damages shall be assessed without reference to �any benefit or gratuity in cash or in kind received as a result of the death by a person for whose benefit the action is brought�. She cited the decision of Frost J. (as he then was) in McLean v. Carmichael[cccxcvi]²⁹�in which it was held that s. 13(d) means that in a dependency action the estate left by the deceased and any acceleration thereof which he might have accumulated had he lived his life out and to which the plaintiff would probably have succeeded is irrelevant. This is to be contrasted with the position in England where there is no equivalent to s. 13(d) and where the courts have guarded against double damages or windfalls to the dependants by holding that damages recoverable by dependants are to be reduced by the amount by which they benefit as beneficiaries in the estate: see Gammell v. Wilson (supra) per Lord Diplock. Accordingly, so Ms. Cox argues, in Papua New Guinea there is a statutory recognition of windfalls or double damages to persons who are both dependants and beneficiaries in the estate. My own view is that in the over-all policy considerations, which I think cannot be avoided, s. 13(d) does not favour the plaintiff�s case. I will return to this aspect at a later stage.

The question whether this Court should decide to follow Oliver v. Ashman[cccxcvii]³⁰�or Gammell v. Wilson[cccxcviii]³¹�or take some other course, depends in the first instance on which of those two decisions should in 1981 be regarded as representing the common law as it existed immediately prior to Independence on 15th September, 1975. To put the question another way: did the House of Lords in Gammell v. Wilson (supra) declare the common law as it had always been, although mistakenly perceived by other courts, or did the House change the law from what it had been? If the House of Lords had overruled its own previous decision it is not difficult to see that it may be taken to have changed the law; but when it makes a decision upon a matter for the first time, a decision which is contrary to decisions previously expressed in less exalted tribunals, the situation is not so clear. Despite various statements in Rose v. Ford[cccxcix]³²�and Benham v. Gambling[cd]³³, the House of Lords had not before Pickett�s case[cdi]³⁴�ever faced directly the issue as to loss of economic capacity during the lost years. Until Oliver v. Ashman (supra) the Court of Appeal had not faced it directly either. Between 1934 and 1962 English courts had vacillated on the question: the cases were referred to by Ms. Cox in argument and are set out in Skelton v. Collins[cdii]³⁵. They need not be tabulated or discussed here.

N1>Even in Australia, despite what was said in Skelton v. Collins (supra) about there being nothing novel about the claim for the lost years, I do not think that the victims of accidents there, usually more enterprising than their English counterparts, had clearly established such a claim until that decision of the High Court in 1966.

N1>The two schools of thought about the nature of judicial precedent in the common law have intrigued legal theorists for centuries. One view is that the courts declare what the common law is and always has been. This �Blackstonian� approach to the judicial process was rejected by Kearney J. (as he then was) in The State v. Allan Woila[cdiii]³⁶�where his Honour said:

�I consider however, that rules of the common law in England enunciated for the first time in decisions of English courts handed down after Independence are not adopted as part of the underlying law by Constitution Sch. 2.2.(1). It seems clear enough that that provision adopts, subject to the important exceptions and limitations therein, as a residuary law, the great body of judge-made law as it stood, and was applied, in the courts of England on 16th September, 1975. That date was fixed for purposes of certainty. Judicial creativity thereafter is a matter for the courts of this country, and no other: Constitution Sch. 2.4. In the light of the clear constitutional intention, no Blackstonian theory that �judges do not make law, but only declare what has always been the law�, can be relied upon to support the adoption under Constitution Sch. 2.2.(1) of rules of the common law in England first enunciated after Independence. In any event, in my opinion, the Blackstonian theory is now discredited, and does not accord with the realities of the judicial process.�

A somewhat different view was expressed by Kapi J. in Wahgi Savings and Loan Society Limited v. Bank of South Pacific Limited[cdiv]³⁷�in the following passage:�

�... the common law principles decided by the lower courts in England may not be declaratory of the common law until it reaches the highest court in England, the House of Lords. Any decisions by the lower courts regarding principles of common law must be viewed with this in mind. If after Independence, 1975, the House of Lords or another competent court in England declares the decision of a lower court to be bad law, or not correctly deciding the common law principles, the courts here would follow the latter decision.�

I think that what his Honour was saying was consonant with the remark of Windeyer J. in Skelton v. Collins[cdv]³⁸�that�

�It is, of course, impossible for anyone to say that a decision of the House of Lords is wrong in the sense of not a correct decision according to the law of England prevailing in England.�

The conflict between the two approaches is of more than academic interest in Papua New Guinea. If the House of Lords proceeds to declare the common law from time to time (apart from the rare occasion when it overrules its own previous decision), its decisions will, by virtue of Sch. 2.2 of the Constitution, be virtually binding on Papua New Guinea courts as to the content of the common law of England. If on the other hand the House of Lords is engaged purely on a law-making process and not a law-declaring process, its decisions since 1975 have little relevance to Sch. 2.2., although they may be persuasive for the purposes of Sch. 2.3. It would be strange if in Papua New Guinea we insisted on adhering to a view of the law of England which was not the view prevailing in England itself. I do not think that we are entitled to say that the House of Lords is wrong on a point of English law. What we are entitled to do and indeed bound in appropriate cases to do, is to say that a particular rule of the common law is not part of the underlying law of this country. It then becomes our duty to formulate an appropriate rule of law pursuant to Sch. 2.3 of the Constitution.

The House of Lords has since 1966 regarded itself as free to overrule its own previous decisions. If it does overrule a previous decision of its own, it may do so because it perceives some error hitherto unrecognized or it may decide as a matter of policy that it is time for a change in the law. Now that this law-making role of the House of Lords is acknowledged, a decision of the House overruling a lower court may be looked at in order to see whether it merely corrects a mistake on the part of the lower court or whether it asserts that a novel principle of law is being laid down. If the House of Lords in Pickett�s case[cdvi]³⁹�said that Oliver v. Ashman[cdvii]⁴⁰�was wrong because it proceeded on a mistaken application of a correct principle of law (which mistake was being corrected and which principle was being confirmed), then Pickett�s case (supra) represents the common law of England for the purposes of Papua New Guinea. On the other hand, if Pickett�s case (supra) is a reversal of the injustice brought about by Oliver v. Ashman (supra) by means of the formulation of a new and contrary principle of law, then we take Oliver v. Ashman (supra) as our starting point for the common law of England as it may be applied in this country. From a reading of the judgments in Pickett�s case (supra), it is very difficult to see which of the two approaches the House of Lords should be seen as having adopted; indeed it is likely that both approaches overlap since it is not necessary for the House�s own purposes to distinguish between them. Over-all I think that Pickett�s case (supra) involves such a radical departure from the law as it was previously understood to be that it is to be regarded as new law. Oliver v. Ashman (supra) therefore represents the common law of England as it stood as at 15th September, 1975.

N1>Whatever the rules of the common law were in 1975, they are to be applied and enforced in this country as part of the underlying law except if and to the extent that they are inapplicable to the circumstances of the country from time to time. Oliver v. Ashman (supra) was overruled in Pickett�s case (supra) because the House of Lords thought it brought about an obvious injustice. But the application of Pickett�s case[cdviii]⁴¹�in Gammell v. Wilson[cdix]⁴²�has brought about a situation which the Law Lords themselves acknowledge to be neither sensible nor just and without social, moral or logical justification. This dilemma has been reached partly through an application of common law as it relates to damages for economic loss from personal injury and partly through the construction and application of statutory provisions for survival of actions. As I have said, I do not see how s. 17(3) of the Act can be applied other than in the way its English equivalent was applied in Gammell v. Wilson (supra). What then of the other leg of that decision, the affirmation of Pickett�s case (supra) overruling Oliver v. Ashman[cdx]⁴³, that at common law a living plaintiff is entitled to economic loss for the lost years?

Lord Diplock in Gammell v. Wilson (supra) showed how the English law developed sporadically and case by case. The English courts seem to have become aware of the possibility of economic claims for the lost years only with the recognition of the slow killer diseases of industry such as asbestosis and silicosis. Mr. Pickett himself was a victim of such a disease and the decision in the action brought by his widow appears to have been directed expressly at avoiding an obvious injustice to her. When Mr. Pickett sued, the medical evidence was that his life expectancy was reduced from twelve years to one year. That unhappy prediction was proved correct because he died shortly after he recovered judgment but whilst an appeal was pending. The appeal was continued by his dependent widow as administratrix of the estate. The likely injustice to the widow was obvious. Because of the rule in Oliver v. Ashman (supra) the deceased, who had lost eleven good years of his expected working life and the notional income which would have been earned during those lost years, was unable to claim damages for the economic loss during those lost years and hence those damages were unavailable to his widow through his estate. At the same time the loss of support during those years was unavailable to the dependent widow because, so it was said, of a rule whereby the dependants were debarred from claiming in a dependency action under the Fatal Accidents Act 1976 (U.K.) once the deceased had brought an action to judgment during his lifetime. If Mrs. Pickett was to avoid an obvious injustice, then Oliver v. Ashman (supra) had to go: Mr. Pickett, had he lived, should have been able to claim for the lost years.

However, as I see it, the injustice would have been avoided and justice done to Mrs. Pickett if Oliver v. Ashman (supra) had been allowed to stand and the House of Lords had disavowed the so-called rule debarring a dependency claim where there has been a judgment in favour of the deceased during his lifetime. What then was the basis of this so-called rule?

In Skelton v. Collins[cdxi]⁴⁴�Taylor J., predicting with accuracy the very situation that arose in Pickett�s case[cdxii]⁴⁵, seemed to assume the existence of the rule when he said: �The anomaly which arises from Oliver v. Ashman[cdxiii]⁴⁶�is that if the incapacitated plaintiff with diminished life expectancy recovers damages (without having taken into account his full economic loss) his dependants are prevented upon his death from recovering full damages.�

N1>Lord Salmon in Pickett�s case (supra) (at p. 783) thought that the assumption was supported �by strong authority� and Megaw L.J., when Gammell v. Wilson[cdxiv]⁴⁷�(at p. 561) was in the Court of Appeal, spoke without citation of �authorities which were and still are binding on all courts below the House of Lords�.

N1>On the other hand, Lord Diplock seems characteristically to have put the point with utmost accuracy when he said in Gammell v. Wilson[cdxv]⁴⁸:

�There would, however, be an anomaly that would offend one�s sense of justice, if a living plaintiff, after having obtained a judgment in his favour which took no account of what he would have earned in the lost years, died shortly after from the injuries which he had sustained. His cause of action would have merged in the judgment and, although I know of no direct authority upon the point, it has always been regarded as too clear to brook of argument that the merger of this cause of action carries with it the merger of any cause of action by his dependants under the Fatal Accidents Acts, however great and prolonged their dependency might have been expected to be. At best his dependants could be compensated for their loss of his future support to the extent to which his estate had been augmented by the damages awarded to him; and they would be deprived even of this compensation unless they were the beneficial successors to his estate.� (my emphasis)

One returns then in the absence of anything else to the �strong authority� referred to by Lord Salmon. The first case cited was Read v. The Great Eastern Railway Company[cdxvi]⁴⁹, a decision of two judges on a demurrer in which the ratio appears to have been that it was not the intention of Lord Campbell�s Act to make the wrongdoer pay twice. It is not hard to disagree with that principle but it does not bear on the precise issue. The next case referred to was Williams v. Mersey Docks and Harbour Board[cdxvii]⁵⁰, again a decision of two judges in which it was decided that the plaintiff was barred from suing in a dependency action because the deceased would at the time when the action was commenced himself have been statute barred. The third case cited by Lord Salmon was Murray v. Shuter[cdxviii]⁵¹, a decision of the Court of Appeal to allow the adjournment of a trial date until beyond the date of the impending death of the plaintiff in order to avoid the sort of injustice that was later seen to arise in Pickett�s case[cdxix]⁵².

N1>With great respect, in my view none of these decisions is persuasive authority for the so-called rule. The reasoning in Read v. The Great Eastern Railway Company[cdxx]⁵³�begs the question: if the living plaintiff does not recover the earnings for the lost years there can be no question of the wrongdoer paying twice. Williams v. Mersey Docks and Harbour Board (supra) is based on statutory provision for the limitation of actions and is not concerned with the substantive rights of the dependants. Murray v. Shuter (supra) also involved a question of practice in which the substantive matter was assumed and not argued.

N1>The general rule of policy that a wrongdoer should not have to pay damages twice over is not violated by permitting the dependants of a deceased person to pursue an action for loss of support even though the deceased person obtained judgment in respect of the injury causing death, provided that the dependency claim does not attract damages which were recovered by the deceased himself. If the damages recovered by the deceased did not include his notional financial loss during the years by which his life was expected to be shortened, it accords with justice (and is not contrary to policy of the Fatal Accidents Acts) that the dependants are entitled to their actual financial loss consequent upon the death which occurred in fact. The loss sustained by the dependants is more readily capable of assessment than a claim by a living plaintiff in respect of the lost years because it is not complicated by any set-off for the anticipated cost of maintenance of himself and because the court is dealing with a period which commences with a date of actual death and not a date of anticipated death.

N1>Despite what was said in Skelton v. Collins[cdxxi]⁵⁴, I do not see the benefit of awarding to a plaintiff whose life span is shortened by the defendant�s wrongdoing a sum which represents what he would have derived financially, after the cost of maintaining himself, in the years which are now lost to him. The plaintiff is entitled, in addition to any financial loss, to be sustained in the years remaining to him, to all the usual components of pain and suffering, including the distress involved in the knowledge that his life has been shortened. I do not think that I have heard it suggested that the plaintiff needs the money from the lost years to spend in the years remaining, or in the case of the plaintiff who dies soon after injury, the seconds or minutes or days remaining. The only social policy for awarding him damages for the lost years is surely for the provision of the dependants: and that should be and can be covered by a dependancy claim. There may be something about the circumstances of Papua New Guinea which elevates the estate claim to at least the same level of social importance as the dependency claim but, although Ms. Cox made a suggestion along these lines, I do not know what it is and I do not think it is found in s. 13(d) of the Act. I do not think that that paragraph is intended to award double damages to beneficiary/dependants: rather it assumes, if it is directed to benefits received as a result of the death and passing via the estate to the dependants, that those benefits will be modest, and is quite consistent with the estate itself recovering a modest amount in a survival action.

N1>I would add here that Ms. Cox foreshadowed in her final address an application to call evidence to support a submission that the rule in Oliver v. Ashman[cdxxii]⁵⁵�when applied to survival actions was inappropriate to the circumstances of Papua New Guinea for the purposes of Sch. 2.2 of the Constitution. I indicated that such evidence would be inadmissible because the appropriateness of the English common law to the circumstances of Papua New Guinea was a matter of law and not of fact to be determined by evidence. The exact nature of the proposed evidence was not made clear.

So far I have not made any reference to the �conventional� sum for loss of expectation of life which the House of Lords fixed in Benham v. Gambling[cdxxiii]⁵⁶�and which has been regarded as surviving for the benefit of the estate. The nature of this anomaly in the law of damages has been the subject of learned writing. Professor Kahn Freund in his classic essay �The Expectation of Happiness�[cdxxiv]⁵⁷�thought the Law Lords were trying to evaluate not the loss of years of life but of years of happiness, an impossible task, and Professor Atiyah in his book Accidents Compensation and the Law (London, 1975 ed.; p. 81) sees the exercise as a thinly disguised form of compensation for bereavement. Whatever its nature, it is part of the law of Papua New Guinea and it stands apart from the issue now under consideration.

N1>There are other reasons why I think that the results of Pickett�s case[cdxxv]⁵⁸�and Gammell v. Wilson[cdxxvi]⁵⁹�should be avoided in Papua New Guinea if possible. When the Law Lords referred to those results as being neither sensible nor just, it seems that they were referring firstly to the sheer unreality of trying to assess the economic worth of the loss of a person�s life, except in the clear case of a man like Mr. Pickett, �middle-aged married men in steady employment living their lives according to a well settled pattern�. Secondly, there are the �windfall� examples such as occurred in Kandalla v. British Airways Board[cdxxvii]⁶⁰. Further, it is to be remembered that in Papua New Guinea members of the immediate customary kinship group of a deceased person whose death is attributable to the use of a motor vehicle are entitled to receive K1,500 compensation by way of administrative procedures (K2,000 if they include dependent wife or dependent children or both): Motor Vehicle (Third Party Insurance) (Basic Protection Compensation) Act 1974. As the members of the group are defined broadly as the dependants and the persons entitled to a �beneficial share in the customary estate of the deceased�, the payment of basic protection compensation is essentially a payment to the estate. Where the death is caused by a motor vehicle then the estate will always be entitled to some compensation regardless of the survival of any action vested in the deceased at his death.

N1>The limits of sums to be awarded as damages in personal injuries actions have been pushed further and further upwards in countries such as Australia and Great Britain by the enterprise of plaintiffs� attorneys and by the acquiescence of insurers. Where insurance against liability for personal injury is covered by private insurers, their vested interests in the long run do not necessarily lie in keeping damages low. What counts is the payment of premiums and people can become used to paying ever-increasing premiums, particularly where affluence and inflation have become part of a way of life. The rapid development of the law as to damages for personal injuries in those countries has not occurred in a social or economic vacuum. In Skelton v. Collins[cdxxviii]⁶¹�Windeyer J. said at pp. 127 to 128:

�The assessment of damages for personal injuries is to-day a constant task for courts. Yet I have long thought that the law does not meet the needs of our time. We live in an age that is dominated by scientific, mechanical and technological activities, their risks largely covered by insurance: but the processes of the law do not, it seems to me, provide in a scientific and logically consistent way for the casualties that result from those activities. Moreover, the procedures involved in the assessment and awarding of damages for personal injuries sometimes delay or impede the recovery and rehabilitation of injured persons. Courts have, however, been left to meet a modern problem by applying, with some adaptation, the pronouncements of a different age. The only far-reaching contributions of the legislatures have been superimposing upon the law of negligence systems of workers� compensation based upon compulsory insurance and instituting a system of compulsory insurance against liability for traffic accidents.�

We should do well to consider avoiding the situation described by one lawyer in a speech quoted in the Report of the National Committee of Inquiry into Compensation and Rehabilitation in Australia (Canberra, 1974, p. 33):

�There has grown up in Australia under the third party system an insurance litigation complex which rivals in its rapacity the military-industrial complex of the United States.�

Perhaps notions of justice in Papua New Guinea do not require the same approach to damages for personal injuries as in the industrialized countries with highly developed insurance systems. Even in those countries perhaps the law works only because it is not enforced against uninsured defendants: see Lister v. Romford Ice and Cold Storage Co. Ltd.[cdxxix]⁶². If we were to ignore the warnings issued by the Law Lords in Gammell v. Wilson[cdxxx]⁶³�and award damages in respect of the earnings lost in the years by which a deceased person�s life has been shortened, we would be in effect trying to capitalize, to convert into present liquid assets the financial or economic potential of a lost human life. Apart from the near impossibility of assessment, there are the questions of what purpose the exercise serves and who is to pay for it. If it is to be done in cases where death is caused by negligence, then it follows that it should be done in all cases attracting legal liability, in compensation for pay-back killings as well as for third party motor accidents. The far ranging consequences for Papua New Guinea of decisions involved in cases like the present highlight the need for a thoroughgoing appraisal of what needs the law as to liability for personal injury should serve in Papua New Guinea and of how the law should go about serving those needs.

N1>As far as the present case is concerned, I would conclude that the decisions in Pickett�s case[cdxxxi]⁶⁴�and Gammell v. Wilson (supra) did not declare what the common law had been but brought about a change in what the English courts had previously accepted as the common law and which had received its most authoritative expression in Oliver v. Ashman[cdxxxii]⁶⁵. The common law principle at 1975 was that a living plaintiff whose working life had been shortened as a result of the defendant�s negligence was not entitled to be compensated for the loss of likely earnings during the period when but for the injuries, he would have continued alive and at work.

N1>In any event if the decisions in Pickett�s case[cdxxxiii]⁶⁶�and Gammell v. Wilson[cdxxxiv]⁶⁷�represent the common law as it was in England on 15th September, 1975, then for the reasons I have indicated above, that part of the common law is inapplicable and inappropriate to the circumstances of Papua New Guinea because, in the words of Lord Diplock, it leads to an outcome which is neither sensible nor just and for which there is no social, moral or logical justification. If it is necessary to formulate an appropriate rule as part of the underlying law, I do so in terms of the decision in Oliver v. Ashman (supra) as set out in the preceding paragraph and supplement that by stating that there is no rule which debars a dependant of a deceased person from bringing a claim under Pt. IV of the Act because the deceased pursued his own claim to judgment.

Accordingly the only sum that may be awarded to the plaintiff is the �conventional� figure for loss of expectation of life. For my own part and consonant with the general remarks made above, I would like to echo the words of Lord Russell of Killowen in Gammell v. Wilson (supra) and say that �for good measure I may add that I do not favour a system which embodies a �conventional� (or any) figure being awarded for loss of expectation of life�. What should be awarded is a proper sum for pain and suffering taking into account the distress caused by the plaintiff�s knowlege that his life is likely to have been shortened. However, the award of such conventional sum has become commonplace in Papua New Guinea and was not resisted by the State here. The conventional sum is now K1,500: Rokan Bayava v. Minisang Wankiar and Anor.[cdxxxv]⁶⁸, and there will be a verdict for that amount.

N1>Verdict for the plaintiff for K1,500, judgment accordingly.

N1>Defendant to pay plaintiff�s costs.

N1>Solicitor for the plaintiff: A. Amet, Public Solicitor.

Solicitor for the defendant: B. Emos, Acting State Solicitor.