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Lewis v The State [1980] PGSC 11; [1980] PNGLR 219 (29 August 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 219 - Brian John Lewis v The State�

[1980] PNGLR 219

SC178

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BRIAN JOHN LEWIS

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Greville Smith Andrew Miles JJ

1-2 May 1980

29 August 1980

NEGLIGENCE - Apportionment of responsibility - Practice on appeal - Variation on appeal - Variation only in rare and exceptional cases.

APPEAL - Practice - Negligence - Apportionment of responsibility - Variation on appeal - Variation only in rare and exceptional cases.

DAMAGES PERSONAL INJURIES - Particular awards of general damages - Head injuries - Brain damage - Cervical injury likely to deteriorate - Confusion - Progressive memory disturbance - Lack of concern for own condition - Fits of uncontrollable laughter - Right sided tremor - Almost complete loss of vision on right side - Real risk of institutionalization at early age - Male airport ramp officer aged 24 (28 at trial) - Assessment of K125,000 general damages including K100,000 for reduced earning capacity substituted for award of K65,000 including K40,000 for reduced earning capacity.

The appellant (plaintiff) a ramp officer involved in supervising the loading and fuelling etc. of aircraft, and a qualified wool classer aged twenty-four (twenty-eight at trial) claimed damages for personal injuries arising out of a motor vehicle accident. The principal injury suffered by the appellant was described as head injuries with �moderately severe primary brain injury�, as a result of which the appellant suffered permanent brain damage symptomised by confusion, progressive memory disturbance (particularly for short term), psychoneurosis, lack of concern for his own condition, and uncontrollable laughter in company. He also suffered an injury to the cervical spine which was likely to deteriorate with time, a tremor on the right side affecting his ability to carry things, and an almost complete loss of vision on the right side. At the time of trial the appellant was working in his pre-accident job which the trial judge found he was likely to lose within a year, and thereafter to return to Australia where he faced the �real risk of institutionalization at a relatively early age�.

The trial judge assessed damages for pain and suffering etc. at K25,000, and damages for loss of earning capacity at K40,000; he also apportioned liability for the accident at seventy per cent to the appellant (plaintiff) and thirty per cent to the respondent (defendant) and reduced the award accordingly.

On appeal against the findings of negligence, the apportionment and inadequacy of damages:

Held

N1>(1)����� Where a trial judge has apportioned responsibility in a case alleging negligence by both parties, that apportionment of responsibility should only be varied on appeal in rare and exceptional cases.

Lee v. Van Essen (1972) 46 A.L.J.R. 250 at p. 251;

British Fame (Owners) v. MacGregor (Owners) [1943] A.C. 197 at pp. 200-201;

Englehardt v. Garrett and Finn [1974] 9 S.A.S.R. 148; and

Pennington v. Morris [1956] HCA 26; (1956) 96 C.L.R. 10 at p. 16 applied.

N1>(2)����� In deciding whether such an apportionment of responsibility should be varied the appellate court must ask itself whether the trial judge could reasonably have arrived at the conclusion it did.

Katsoris v. Reynen [1962] VicRp 76; [1962] V.R. 551;

Webb v. McArtee and Rhondda Collieries Pty. Ltd. [1965] Qd.R. 487 referred to.

N1>(3)����� In the circumstances the findings of negligence and the apportionment of responsibility ought not to be disturbed.

N1>(4)����� An assessment of damages by a trial judge 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.

Kerr v. Motor Vehicles (Insurance) P.N.G. Trust [1979] P.N.G.L.R. 251 followed.

N1>(5)����� The assessment of K25,000 for damages for pain and suffering etc. was not so low or so inordinately low as to be disturbed.

N1>(6)����� The assessment of K40,000 for loss of earning capacity was inordinately low, and should be increased to K100,000.

Appeal

This was an appeal against findings of negligence and contributory negligence and an assessment of damages made on the trial of an action seeking damages for personal injuries arising out of a motor vehicle accident.

Counsel

R. V. Gyles Q.C. and J. E. Rowe, for the appellant (plaintiff).

R. C. Gunson, for the respondent (defendant).

Cur. adv. vult.

29 August 1980

GREVILLE SMITH J: I have had the advantage of reading the reasons for judgment prepared by Andrew J. and Miles J. I agree with those reasons and the conclusion and have nothing to add.

ANDREW J: This is an appeal by Brian John Lewis against a judgment of the National Court wherein he was awarded damages for personal injuries suffered as a result of a collision between a motor cycle ridden by himself and a motor car owned by the respondent (defendant) and driven by its servant and agent.

The learned trial judge found that the plaintiff was contributorily negligent to the extent of seventy per cent. The defendant had admitted liability and relied solely on its defence of contributory negligence.

In his appeal to this Court, Lewis challenges the finding of negligence on his part contributing to the result, and, in default of his success on that issue, he seeks to vary the apportionment of his responsibility. The assessment of damages is also challenged.

As the appeal was argued before us, there seems to be little dispute with respect to the basic circumstances under which the accident occurred. No doubt this was partly due to the fact that the plaintiff had no memory of the accident, a disadvantage under which he laboured at the trial and which made the trial judge�s task that much more difficult.

The facts were that Lewis was proceeding along Hubert Murray Highway away from Port Moresby when he came into collision with the defendant�s truck which was being driven in-bound to Port Moresby. The collision took place near the intersection of Kookaburra Street and Hubert Murray Highway.

The learned trial judge�s findings were as follows:

�It is clear, in my opinion, that both Maip and the plaintiff drove their respective vehicles negligently at this time and place. Maip�s negligence is of course admitted. I am satisfied that Maip believed, with reason, that the plaintiff would be turning left in Kookaburra Street, when he saw the motor cycle turning indicator flashing; and that, in that belief, Maip then moved slowly, or continued to move slowly, across the centre line of the highway into the outbound lane, with the intention of following the plaintiff into Kookaburra Street. Maip had angled across the centre line several feet at the time of collision. Meanwhile the plaintiff, having no intention of turning left into Kookaburra Street and being unaware that his turning indicator was activated, continued outbound along the highway towards the van now edging into his path. What his expectations were, what kind of a lookout he was keeping, cannot be determined. It may be that he expected the van to wait for him to pass, or to complete its turn in front of him promptly; but that is a matter of speculation. In any event, I am satisfied that the plaintiff was moving at considerable speed, and that when he finally braked he was unable to stop before colliding with the van, after a twenty-six feet skid. In these circumstances I consider that the plaintiff failed to take the care a prudent man in his position would have taken for his own safety and by his failure to do so contributed in a material way to his injury.

The effect of a finding of contributory negligence on the part of the plaintiff is to reduce the damages he would otherwise recover, to such extent as is just and equitable, having regard to the plaintiff�s share in the responsibility for the damage he has suffered. The question is to be looked at on common sense principles both in regards causation and blameworthiness. On that basis it appears to me that the plaintiff�s behaviour was more culpable than was Maip�s. It is unnecessary for me again to rehearse their respective actions. I think the plaintiff must bear 70% of the responsibility and the damage he would otherwise recover should be reduced by that percentage.�

These findings were attacked on several grounds. It was said, interalia, that the fundamental rule of the road is that one does not make a right-hand turn into the path of an oncoming vehicle; that there was no finding that the plaintiff was not keeping an appropriate lookout and whilst there might have been a finding of �considerable� speed on the part of the motor cycle there was no finding of dangerous or excessive speed. It was also said that when the plaintiff activated his traffic indicator he was indicating an intention either to pull over to the left side of the road or to turn left into Kookaburra Street and that he only changed this when he saw the vehicle move in front of him. It was submitted that it was for the defendant to show and establish some act or omission of the plaintiff which exhibited a failure of care on his part to act for his own safety and the fact that an indicator was on unbeknown to him did not exhibit such a failure. The fact that the indicator was operating, it was said, did not entitle the defendant to turn into an intersection in front of this vehicle. Such indication, it was said, is only a warning or evidence of an intention to proceed in a particular direction. It should have been obvious to the driver of the truck, from the speed of the motor cycle, that in fact it had no intention of moving to its left. It was put that an indicator is not an invitation to another driver to take a risk, it is a warning as to a possible turn, and that there is no duty to turn simply because of such an indication and no last minute manoeuvre by the plaintiff to avoid the truck crossing his path could have been contributory negligence even if he elected to move in the wrong direction.

Thus, it was submitted, there should have been no finding of contributory negligence, or if there were any such finding, the casual link was so slight as to warrant only a minor deduction.

These submissions, of course, do not so much attack the findings of fact but rather the conclusions reached upon those facts.

The learned trial judge had the advantage of hearing the witnesses and of observing their demeanour, an advantage which is denied to me. Much must depend on the impression formed by a trial judge who has heard and seen the witnesses. That being so, I see no ground upon which the findings of fact should be disturbed.

On the facts, as found by his Honour, it must be acknowledged that the defendant was under an obligation not to proceed with his right-hand turn unless he was reasonably certain that there was no danger of collision with the oncoming vehicle. If there is any danger of collision, he should slow down and, if necessary, stop, until it is safe to proceed (David v. Hartman[cccxliii]¹). But in the present case the defendant did slow down. Upon seeing that the motor cycle turning indicator was flashing he moved slowly, or continued to move slowly, across the centre line of the highway into the outbound lane with the intention of following the plaintiff into Kookaburra Street. It is true that the defendant could see the oncoming motor cycle for some considerable distance before the collision took place and that the considerable speed must have been some indication that in fact the motor cycle had no intention of turning left into Kookaburra Street, but, in my view, that was a matter which was relevant to the trial judge�s apportionment.

I am of the view that there was material before his Honour on which he was clearly entitled to find that Lewis was guilty of negligence which caused or contributed to the collision. Thus, I apprehend no ground on which the finding that Lewis was negligent should be disturbed. Clearly the plaintiff�s signal that he was turning left caused the defendant to believe, quite reasonably, that he would proceed in that direction. The defendant did slow down and proceeded cautiously towards Kookaburra Street. In my opinion the findings of negligence were reasonably open and I perceive no error of principle.

There must always be room for divergence of opinion as to what is, or is not, the proper apportionment of responsibility for a collision in a case in which the accident results from the combined negligence of the parties found to be at fault. Accepting, as I do, the finding of the learned trial judge, it would require a very strong and exceptional case to vary the apportionment of the different degrees of blame: �Cases in which an appellate court can properly vary an apportionment made by a trial judge must necessarily be rare� Lee v. Van Essen[cccxliv]².

In the British Fame (Owners) v. MacGregor (Owners) the Court of Appeal had varied the apportionment of blame fixed by the trial judge but the House of Lords restored it. All their Lordships agreed that the apportionment of the trial judge should only be varied in rare and exceptional cases. Lord Wright said[cccxlv]³:

�I do not say ... that under proper conditions ... the Judge�s apportionment might not be interfered with by an appellate court, but I do repeat that it would require a very strong case to justify any such review of or interference with this matter of apportionment where the same view is taken of the law and the facts. It is a question of degree of fault, depending on a trained and expert judgment considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interfering, save in very exceptional circumstances, with the judge�s apportionment.�

The same view was taken again by the House of Lords in The Boy Andrew[cccxlvi]⁴. The principle as enunciated in these cases has been approved by the High Court (Pennington v. Norris)[cccxlvii]⁵�where their Honours said: �It is to be expected therefore that cases will be rare in which the apportionment can be successfully challenged.�

In Katsoris v. Reynen[cccxlviii]⁶�the Full Court of Victoria laid down the test as whether the apportionment was such as no reasonable jury could have made and in Webb v. McAntee and Rhondda Collieries Pty. Ltd.[cccxlix]⁷�the Full Court of Queensland asked itself whether on the evidence the trial judge could reasonably have arrived at the conclusion which he did.

I think, in the absence of any error of fact or law, I must ask myself whether the learned judge in this case could reasonably have arrived at his apportionment. I think it was a case which largely depended on the assessment of witnesses and of their demeanour and of the facts and applying those principles I would refuse to interfere. [A further submission was made concerning the translation of evidence given by the witness Maip. I am of the view that it has not been shown that such translation affected the ultimate decision nor that there was in fact any error in the translation.]

I turn now to the question of damages.

The learned trial judge assessed damages as follows:

�I consider that damages for pain, suffering and loss of the amenities of life would be of the order of K25,000.

As to loss of earning capacity, I consider that during the fairly short period in which he will, in all probability, continue to be employed by Air Niugini, K1,500 should be allowed; while thereafter a round sum of K40,000 would be a reasonable figure at which to capitalise his loss of capacity.

It appears that the parties have reached agreement that out-of-pockets to trial, other than wages, should be allowed at K892; and that loss of nett wages, to trial should be allowed at K4,000.

Considering these various elements as part of a global award of damages, and bearing in mind the finding that, as a result of his contributory negligence the plaintiff must bear 70% of the responsibility for the accident, it appears to me that there should be an award of damages in favour of the plaintiff calculated as follows:�

30% of K71,392 = K21,417. Accordingly, there will be judgment for the plaintiff, with costs in the sum of K24,417.�

The ground of appeal is that such award was seriously inadequate and out of proportion to the injuries sustained.

Again, as the appeal was argued before us, there is little dispute with his Honour�s findings of fact but rather with the conclusions reached upon those facts and the submitted general inadequacy of the award. It was not argued that the trial judge had erred in point of law but that the assessment itself was so disproportionate to the injuries received, that this in itself demonstrated error.

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 (P.N.G.) Trust[cccl]⁸.

Before turning to an examination of those injuries and of the assessment made, I set out what I conceive to be the correct method of assessment of damages. The manner in which a jury should approach this question by the award of a global sum for fair compensation for the injuries and their consequences is to be distinguished from the position of a judge sitting without a jury. The correct method is to consider and quantify separate heads of damages by way of, inter alia, allotting in a tentative and preliminary way round sums to each such head, and so proceeding in conjunction with resources to actuarial calculations. I agree with the judgment of Gibbs J. in Griffiths v. Kerkemeyer[cccli]⁹�that:

�It is never wrong and often convenient for a judge to examine separately the various heads of damage and to show the amount that he allocates, tentatively or finally, to each head. The judge will of course remember the need to avoid inflating the total figure by adding up overlapping items, but any error of that kind is more likely to be revealed if he itemizes his award than if he does not.�

See also Sharman v. Evans[ccclii]¹⁰�where (in the joint judgment of Gibbs J. and Stephen J.) the Court said:

�... so long as courts are careful to avoid the risk, inherent in such a procedure, of compensating twice over for the one detriment there seems no better way of applying processes of reasoning and the realistic and methodical evaluation of probabilities to the task of assessing compensation. In cases of any complexity any other approach is open to serious objection, especially in times of rapid inflation... Moreover where the assessment of damages is undertaken by a judge sitting without a jury it is, we think, most desirable that the process of assessment should be described in the reasons for judgment. As was pointed out by Sachs L.J. in George v. Pinnock (1973) 1 W.L.R. 118 at p. 126, it is only by the setting out in a judgment of the main components of an award of damages, or at least of the approach taken to each component, that the parties may obtain a proper insight into the process of assessment and an adequate opportunity of seeking the correction of error on appeal.�

These comments are made in a general way and not critically, for in this case there was such a consideration of each separate head of damage.

In view of the attack made upon various aspects of his Honour�s assessment of damages it is appropriate to examine the various heads of damage which presented themselves for assessment so as to appreciate and deal with the various criticisms raised by the appellant.

The first was for general damages dealing with pain, suffering and the loss of the amenities of life. The learned trial judge in his reasons for judgment said:

�The appellant was born on 14th November, 1951, and was twenty-four years of age at the time of the accident. He gained his leaving certificate in Melbourne, completing fifth year at high school. Thereafter he trained at a school of textiles as, and became a qualified woolclasser; that is work which requires working at a speed which he can no longer attain. The wool industry being depressed, he came to Papua New Guinea in 1973, when he worked for T.A.A. as a general traffic and cargo officer, in Lae. Later he transferred to his present employer, Air Niugini, where he presently works as a ramp officer, grade 2. It appears that he held the same grading prior to the accident, although he has since received an annual increment within his grade. His work is to supervise the work of those who load the aeroplanes, to check that the aeroplane is properly fuelled and provisioned.�

The learned trial judge has carefully detailed the medical evidence in his reasons for judgment. The appellant�s counsel does not contest this evidence.

The appellant was unconscious after the accident. He was admitted to Port Moresby General Hospital and later transferred to hospital in Australia. The report of the medical superintendent of the Royal Brisbane Hospital describes his condition as a �moderately severe primary brain injury�. Dr. Clezy describes it as a �substantial brain injury�. The appellant�s counsel said �it is that primary damage which has led to most of the very severe effects which the plaintiff is now suffering�.

The learned trial judge�s reasons continue as follows:

�As to the likely occurrence of disc disease in the neck in later life, Dr. Clezy expressed the opinion before me that within ten years the plaintiff would complain of increased pain; and that this period could be reduced to five years, if he was in a labouring occupation. The likelihood was that such neck pain would be suffered through the rest of the plaintiff�s life. How he accommodated himself to that, would depend upon his reaction to pain.

I share the view, expressed by Dr. Clezy before me, that the plaintiff appears to be a fairly stolid man, and I consider he would be likely to keep working for some time, despite pain to his neck.

I also share Dr. Clezy�s view that the almost complete loss of the right field of vision is an important disability for a manual worker.

Dr. Burton-Bradley, a consultant psychiatrist, characterizes the plaintiff�s psychiatric condition, as that of �organic brain syndrome�, the symptomatology of which is confusion and, particularly, memory disturbance. Dr. Burton-Bradley also says the plaintiff suffers from �post traumatic psychoneurosis�, and considers, in general, that both conditions are likely to last indefinitely, most likely for the rest of his life, the prognosis being poor. Dr. Burton-Bradley regarded the plaintiff as having suffered a serious injury which could impair his ability for clerical or non-repetitive manual work. His very lack of concern over his present condition, which was manifest before me, was in itself an abnormality. Mr. Symons described him as �unnaturally content�.

Paul Symons, a clinical psychologist examined the plaintiff in October 1977, carrying out certain tests. He found that the plaintiff had a distinct deficit in his short term memory; his long term memory was more normal. Before me Mr. Symons indicated that the plaintiff�s lack of insight into his own condition, meant that over a period of years, any improvement would be only marginal. Mr. Symons considered the plaintiff was now very unlikely to be able to form any close emotional relationships; he would be slightly irresponsible; his decision-making capacity would be adversely affected.

I agree with Mr. Symons that the plaintiff�s employability has been patently affected, and he can no longer perform at the level he once did. Mr. Symons pointed out the destructive effect which the plaintiff�s defective short-term memory would have upon all his social relationships.

Mr. Symons was of the view that the plaintiff would probably be able to stay at much the same level of performance until he reached his middle or late 30s, provided his environment was supportive. Thereafter his already deficient recall would decline, which could in time lead him to a state of �confusion� and ultimate hospitalization. That is to say, there is a real risk that ultimately the plaintiff may have to live in an institution. As I said earlier I found Mr. Symons a careful and useful witness, and I accept what he says as portraying a reasonable picture of the plaintiff and his future.�

There is no doubt that the appellant has suffered severe injuries and is entitled to substantial compensation for pain and suffering as well as loss of enjoyment of life. But the task of an appellate court in assuming error from the sole circumstance of the amount of the award is a peculiarly difficult one. It is particularly so where the award is low or very low and less or even considerably less than the judge participating in the appeal would have himself fixed. The discretion in assessing damages is extremely wide and its exercise by the primary judge to whom it is committed is entitled to respect. The appellate court�s function is not to undertake itself the exercise of that discretion unless it is first convinced of error in its exercise by the trial judge: See per Barwick C.J. in Dessent v. Commonwealth of Australia[cccliii]¹¹.

It was said that the appellant was to some extent indifferent to his injuries. He was subject to laughing fits. There was evidence of a psychoneurotic symptom known as �la belle indifference�. In these circumstances it was argued that the trial judge may have wrongly applied the principle in Skelton v. Collins[cccliv]¹², that regard must be had to the fact that the plaintiff is insensible of his deprivation. However I can see no evidence that this was taken into account. The injuries here fall far short of the situation of the plaintiff in Skelton v. Collins (supra) who was rendered permanently unconscious.

I find it unnecessary to resolve the apparent conflict between Skelton v. Collins[ccclv]¹³�and the decision of the House of Lords in Lim Poh Choo v. Camden and Islington Area Health Authority[ccclvi]¹⁴, where it was held that the fact that the plaintiff was unconscious of his injuries did not eliminate the actuality of deprivation of the ordinary experiences and amenities of life.

Whilst the appellant�s injuries are serious and whilst the award under this head might appear low, I am of the view that it is not so inordinately low as to be beyond the range of the exercise of an informed discretion.

As to loss of earning capacity his Honour found that the appellant would lose his employment with Air Niugini this year and then return to Australia. He allows a figure of K1,500 for the loss of earning capacity in this period. He found that it was apparent that the appellant had suffered a serious loss in his income-earning capacity now and in future years. He found that there was a large difference between the plaintiff�s income-earning capacity as it stood before the accident, for future years, and the position in which he now found himself. The learned trial judge�s findings continue:

�The probabilities are that for the latter part of what otherwise would have been his income-earning life, he will be unable to obtain paid employment ...

His major loss is unquestionably due to the brain injury, which has resulted in the personality change detailed in the evidence. As a result of its incidents, and in particular the progressive deterioration of his memory, he faces a real risk of institutionalization at a relatively early age.

I consider the probabilities are that he will continue to be employed for some 10 years or more, after 1980, but at a reduced income, due to his then fitness, at best, for work more of a labouring type.�

I think that on the findings of fact made by the primary judge the appellant was entitled to substantial compensation for loss of earning capacity. The extent of the appellant�s disabilities, as taken from his Honour�s judgment, makes this perfectly clear.

The appellant turns twenty-nine in 1980. It is a reasonable assumption that he had a working life of a further thirty-seven years. For the next ten years or more he will be able to obtain employment only at a reduced income for work more of a labouring type. There is however the possibility that this period could be reduced to five years if he engaged in any heavy physical work. I think it is also a reasonable assumption that the differential between his present capacity and the capacity he may have had beforehand would be in the range of K50 per week. I should add that these are net figures following the decision of this Court in Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[ccclvii]¹⁵.

Taking that figure and capitalizing the amount by reference to the six per cent tables produces a present value of economic loss in the order of K20,000. A more difficult question however concerns the remaining period of twenty-five years. I think the first consideration is that his Honour did not make a precise finding that the appellant would be unemployable in ten years. He made two findings in this regard, namely that �The probabilities are that for the latter part of what otherwise would have been his income-earning life, he will be unable to obtain paid employment�. And secondly that �I consider the probabilities are that he will continue to be employed for some ten years or more, after 1980 ...� (The emphasis is mine.) Nevertheless I think that the period of ten years can be used as an approximate one. There was evidence before the trial judge as to the appellant�s income at the time of the accident and subsequently there has been further evidence before this Court as to what his income might have been had he returned to Australia and had for example been employed on a comparable basis with an airline such as Qantas Airways Ltd. From all that evidence I think it is reasonable to assume that his net wage would have been in the order of K 160 per week in 1980. Using that figure and capitalizing the amount on the six per cent tables for a period of thirty-four years produces a present value of economic loss of over K100,000. This figure of course can only be an approximate one. It depends on the uncertain period of working life of ten years or more and all the other uncertainties which might occur in a period of thirty-four years. But there are, in my view, other countervailing factors in relation to the vicissitudes of life. The appellant will face the difficulty of finding continuous suitable employment on the labour market of Papua New Guinea or Australia in the next ten years. It was also submitted that there had been no allowance made for the cost of institutionalization and other necessary care. However there was no evidence of this before the trial judge. There was simply a finding that the appellant faced a real risk of institutionalization at a relatively early age. This submission raised the question of whether any such payment by way of social security for medical care and unemployment should be taken into account. This is an area of the law which is not free from difficulty. Prima facie, damages are compensation for net loss. If the victim of a personal injury or any other wrong is in receipt of a benefit which he would not have received had the wrongful act not been done, that benefit, in a broad sense, reduces his loss and is usually intended to do so. But there are two large and clearly defined areas in which post-accident receipts are disregarded at common law, that is to say, the proceeds of insurance and the proceeds of benevolence. See Parry v. Cleaver[ccclviii]¹⁶�and Nabi v. British Leyland[ccclix]¹⁷. The answer to this question will largely depend on thte legislation governing the payment of the benefit. See Tuncel v. Renown Plate Co. Pty. Ltd. [ccclx]¹⁸; Handley v. Datson and Ors.[ccclxi]¹⁹�and Lindquist v. Maier[ccclxii]²⁰.

However, in the present case there was simply no evidence of any future social security or other benefits which the appellant might have received.

I consider however, that both the possibility of future institutionalization and of future social security receipts are matters which are relevant and have to be considered in assessing the final award, along with all the other contingencies.

In all these circumstances I am of the view that the award of K40,000 under this head is inordinately low. If, as I have found, the appellant�s loss in the next ten years or so is in the amount of K20,000 then there remains only a further amount of K20,000 for the much more difficult remaining period of his life. I consider that the amount awarded is so disproportionate to the injuries received, that this demonstrates error. I would set aside the award under this head and substitute an amount of K100,000.

I would award damages as follows:

I would allow the appeal, set aside the verdict and substitute a verdict of K38,967 with judgment accordingly.

MILES J: This is an appeal from a decision of the learned National Court judge at first instance in an action for personal injuries arising out of a collision between two motor vehicles. Negligence on the part of the respondent defendant was admitted through counsel at the hearing. His Honour found contributory negligence on the part of the plaintiff appellant, apportioned negligence as to seventy per cent on the part of the appellant and as to thirty per cent on the part of the respondent, and made an award of damages reduced in accordance with the apportionment as found.

Each of these findings or decisions is now under appeal. Each as it emerged in argument involves a question of mixed law and fact and accordingly appeal lies of right: see Supreme Court Act, 1975, s. 14. There were other ancillary matters in respect of which leave to appeal is necessary: these are referred to later in this judgment. There were seven distinct matters raised on behalf of the appellant on the hearing of the appeal and it may be convenient to deal with them under headings.

LIABILITY: CONTRIBUTORY NEGLIGENCE

The collision occurred on Tuesday, 13th January, 1976. The plaintiff was riding his motor cycle on Hubert Murray Highway, outbound from Port Moresby. At the same time Joseph Maip, a correctional officer engaged on official duty, was driving a State owned Mazda van on the highway in the opposite direction. At the intersection of the highway and Kookaburra Street, a �T� intersection, Mr. Maip commenced, but only just commenced, to make a right-hand turn from the highway into Kookaburra Street, when the cycle collided with the front near side of the van. The appellant suffered serious injuries and has no memory of the collision or events leading to it.

The above facts were not in dispute and emerged from evidence given by Mr. Maip and also by police constable Ruing. There were no photographs and although a sketch plan was apparently used at some stage it was not tendered or otherwise formally admitted into evidence, nor was it available on the hearing of the appeal.

The evidence given by these two witnesses was set out by his Honour. I take him to have found the following as matters of fact (referred to later in this judgment as �primary facts�). As Mr. Maip approached the intersection and at about twenty yards from it he changed down to second gear and reduced speed to about ten miles per hour intending to turn right into Kookaburra Street. When he was about twenty to thirty feet from the intersection he saw the oncoming motor cycle. The cycle was then forty yards from the intersection. (Although his Honour does not say so, Mr. Maip gave evidence that he then put his right-hand signal on.) Mr. Maip then saw the motor cycle�s left-hand blinker signal go on. Believing that the cycle was about to turn left, Mr. Maip applied his brakes intending to give way to the motor cycle by allowing it to precede him into Kookaburra Street.

The motor cycle however came on, along the highway and struck the van either when it had stopped or when it was almost stopped.

Constable Ruing who was on the scene within about fifteen minutes found the van at the centre of the intersection with damage to its left-hand mudguard, left door and windscreen. It was facing at an angle towards Kookaburra Street in the middle of the intersection. Its front offside tyre was on the outbound lane of the highway, its front near side tyre was on the inbound lane. The highway is twenty to twenty-five feet wide and the front of the vehicle was about twelve feet from the edge. A white centre line divides the two lanes. A skid mark about twenty-six feet long extended in a curve from the centre of the outbound lane to the white centre line ending up about a foot away from the damaged part of the van. From the junction visibility for outbound traffic was about fifty yards and for inbound traffic about a hundred yards.

His Honour after finding the primary facts as above and referring to the submissions of counsel went on to say on p. 4 of his judgment: �My findings are as follows:� and then proceeded to set out the features of the case which led to his conclusions that there was contributory negligence on the part of the plaintiff and that it should be apportioned with the plaintiff bearing seventy per cent of the responsibility. These features of the case although properly described by his Honour as �findings� might be characterized more strictly as inferences drawn from other findings, the findings of evidentiary or primary facts. Although it is often if not usually difficult to distinguish findings of fact from inferences, it is necessary to do so on this appeal, having regard to the function of an appellate court called upon to overrule the decision of a trial judge who has constituted a tribunal of fact as well as a tribunal of law.

It is not appropriate to discuss at excessive length the two distinct schools of thought which have been expressed over the years on this question as to how far an appellate court should substitute its own view of the facts for that of the trial judge. At one end of the scale is the view that only in the most extreme cases should the trial judge be overruled: at the other end of the scale is the view that whilst weight has to be given to the trial judge�s findings, the appellate court should make those findings which it considers to be correct.

As distinguished a body as the High Court of Australia has in only recent years given authoritative support to each of the two conflicting views. The principle that a finding of fact by a trial judge should not be disturbed if there was material on which he might make that finding reached its strongest support in Edwards v. Noble[ccclxiii]²¹�(see particularly the judgments of Barwick C.J. and Windeyer J.) only to be emphatically rejected by a majority of three out of five judges in Warren v. Coombes [ccclxiv]²², who in a joint judgment cited with approval a previous statement of Jacobs P. when sitting as a Judge of Appeal in New South Wales in Cashman v. Kinnear[ccclxv]²³: �No �judicial restraint� should lead me ... to refrain from giving effect to that conclusion of fact to which I finally come�.

An attempt to keep up with the case law in other countries to which Papua New Guinea has usually looked for assistance suggests that it is the �interventionist� approach which holds sway at the present time. Warren v. Coombes[ccclxvi]²⁴�has been recently followed in the New South Wales Court of Appeal: Metcalfe v. Toms[ccclxvii]²⁵. In England the Court of Appeal has it seems adopted this sort of approach for some considerable time. See for instance Mersey Docks & Harbour Board v. Procter[ccclxviii]²⁶; Powell and Wife v. Streatham Manor Nursing Home[ccclxix]²⁷�(where Lord Atkin said �on appeals from the decision of a judge sitting without a jury the jurisdiction of the Court of Appeal is free and unrestricted�), and Benmax v. Austin Motor Co. Ltd.[ccclxx]²⁸. If one looks for reasons as to why this trend has occurred at all, and why it occurred earlier in England than in Australia, it might be seen to lie in the readier acceptance in England of trial by judge alone and the lingering survival of trial by civil jury in Australia.

And yet, it seems to me, a measure of restraint on the part of appellate courts is proper. In matters involving a discretion to be exercised by a trial judge, the High Court has itself already limited the operation of Warren v. Coombes[ccclxxi]²⁹: see Gronow v. Gronow[ccclxxii]³⁰. In the area of negligence, as Windeyer J. observed in Edwards v. Noble[ccclxxiii]³¹, a decision as to whether an act or omission is reasonable or not involves the application of standards seen to be those of the community, thus necessitating a value judgment rather than a finding of fact. A judge bears no particular qualifications to decide community values and appellate judges are no better qualified than trial judges. In this respect Windeyer J. cited with approval an extract from an article �Appeals on Questions of Fact� by D. J. Payne, published in Current Legal Problems (1968), as follows: �If we say that the trial judge was wrong and the House of Lords right on an issue of this sort, it is doubtful whether we are saying more than that the House of Lords differed from the trial judge and that there is no appeal from the House of Lords.�

If one counts judicial heads, the plaintiff in Warren v. Coombes[ccclxxiv]³²�had, between trial and High Court appeal, the support of four judges and the defendant had the support of five. Yet because three out of five judges in the High Court supported the plaintiff, he won the day�and this on a question of whether the driver of a motor car was exercising reasonable care or not. Warren v. Coombes (supra) was followed in the Supreme Court of Papua New Guinea recently in Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[ccclxxv]³³.

Turning from these general observations to consider the position in Papua New Guinea, the aspect which strikes one immediately is that there is not and never has been trial by jury in this country. The traditional reluctance to interfere with decisions of juries therefore has no place in this country. Secondly, there are constitutional factors in operation here which must always be considered. In referring to the appellate jurisdiction of the High Court of Australia, Isaacs J. said in Webb v. Bloch[ccclxxvi]³⁴�that the Court had a constitutional duty to form its independent opinion as to the proper inferences from evidentiary facts. So too in Livingstone v. Halvorsen[ccclxxvii]³⁵�where Murphy J. said that on an appeal to the High Court the parties have a constitutional right to the decision of the court on the merits of the case. In this regard the Supreme Court of Papua New Guinea stands in a similar position, in an appeal from a finding of a judge of the National Court: see Supreme Court Act 1975, s. 15.

In deciding the merits of the case on appeal however one new matter arises and that is the decision of the trial judge himself. That decision, with all findings contained in it, has to be given proper weight. A Supreme Court judge is not free to substitute his own findings of fact unless he has given consideration to the whole of the decision of the National Court judge. In some areas the Supreme Court may properly be more reluctant to differ from the National Court judge. On a question of credit of a witness the trial judge is in a superior position and his assessment is not likely to be rejected. Where the decision is ultimately and largely an individual matter of opinion, for instance in apportioning blame for contributory negligence, or assessing damages for pain and suffering, the trial judge�s finding, based on his own opinions, should carry substantial weight. So too where the finding is one of a �primary fact� or �evidentiary fact� rather than an inference from such facts (if the distinction may be drawn), the trial judge�s decision should rarely be disturbed.

Applying these principles to the present case and to the primary facts as set out earlier in this judgment, I cannot see where his Honour went wrong in finding or inferring that the plaintiff was guilty of contributory negligence and I do not come to any contrary conclusion myself. The flashing indicator led Maip to believe, wrongly, that the plaintiff was going to turn left into Kookaburra Street. As Maip himself intended to turn into Kookaburra Street, Maip�s mistaken belief immediately created a situation of danger because as his Honour observed �Maip then moved slowly, or continued to move slowly across the centre line of the highway into the outward bound lane with the intention of following the plaintiff into Kookaburra Street�. The flashing indicator caused Maip to cross the centre line.

Mr. Gyles urges upon us that the fact that the indicator was flashing does not of itself support a finding of contributory negligence. Firstly he submits that it does not indicate a failure on the part of the plaintiff to take care for his own safety. The argument was attractively put that flashing an indicator is not an invitation but a warning of a possible move and cannot be converted into a breach of the plaintiff�s duty to take care for his own safety. However I think that to divert attention to words like �invitation� and �warning� is to confuse the issue. The operation of the indicator in the circumstances of this case was not to be construed by another road user as an invitation or as a warning, but as a signal that whatever that other road user had in mind to do, he ought do it on the basis that the plaintiff was about to turn left into Kookaburra Street. As that signal was misleading, it created a situation of danger for all road users within the vicinity, including the plaintiff himself.

Mr. Gyles sought to reinforce his point by taking the hypothetical example of a driver intending to drive out of Kookaburra Street and turn into the highway. Mr. Gyles suggested that such a driver could not safely drive on to the highway once it was apparent that the plaintiff was proceeding as he was towards the intersection, even though his indicator was indicating an intention to turn left. The prudent driver, would, so Mr. Gyles submitted, wait until the plaintiff had passed the intersection because he could not be positive that the cycle would in fact turn left�the cyclist might at the last moment decide that he was mistaken about which street he wanted to turn into.

That submission so it seems to me is directed not at the failure of the motor cyclist to take due care but to the failure of the hypothetical driver so to do. Translated into the circumstances of the present case, it is concerned not whether there was contributory negligence on the part of the plaintiff, but whether there was negligence on the part of the defendant, which is not in issue.

It seems to me that prima facie a driver of a vehicle displaying an indicator must expect that other drivers on the road will adjust their own actions in accordance with the indicator. I do not think that the plaintiff was entitled, in the circumstance of his indicator showing an intention to turn left, to assume that Maip would wait entirely on the inbound side of the centre line until the plaintiff had passed along the highway through the intersection. If he did not assume that, another explanation of the plaintiff�s course of driving, as his Honour observed, might be that he expected the van to turn in front of him promptly. Yet another explanation is, of course, that he did not see that the van was turning until it was too late. Any of those explanations in my view lead to the conclusion of his Honour, with which I respectfully agree, that the plaintiff, moving at considerable speed and being unable to stop or avoid colliding with the van after a twenty-six feet skid, failed to take care for his own safety and in so doing contributed in a material way to his own injury.

The further submission is made on behalf of the plaintiff however that he was, as his Honour found, unaware that the indicator was operating, in which case there was no failure by him to take care for his own safety in the manner of his driving leading up to the collision. I am unable to agree. Mr. Maip said he saw the motor bike put his signal on. If Mr. Maip was aware of the signal being activated, so should the plaintiff have been aware. It is said on behalf of the plaintiff that Mr. Maip�s evidence should be taken to mean only that he noticed that the signal was on at a certain stage�it may have been on longer than that. This seems to me to make no difference. For a driver to fail to notice that a signalling device on his vehicle is in operation is prima facie evidence of failing to take care for his own safety because of the likely effect of the indicator on other road users, as I have tried to formulate earlier.

For myself I would also be prepared to find (as his Honour declined to find) that the plaintiff was in breach of reg. 65 of the Motor Traffic Regulations 1967 in that he failed to disengage a signalling device (which the evidence shows was not self cancelling) in circumstances where it was likely to mislead another driver. Mr. Gyles submits that it cannot be concluded on the evidence that, merely because the indicator was in operation from the time it was first seen by Mr. Maip until the time of collision, that the plaintiff failed to cancel it. As I understand the submission, it may have been that the plaintiff was unable to cancel the indicator because of the emergency that arose. In the absence of evidence to that effect however I would find that there was failure to cancel. As I have indicated earlier, the circumstances were likely to mislead another driver and the misleading of another driver was likely to give rise to a situation of danger to the plaintiff himself. In other words the breach of the regulation in the circumstances was evidence, in my view sufficient evidence, of contributory negligence.

LIABILITY: APPORTIONMENT

The next point taken for the appellant was that the trial judge erred in apportioning responsibility by deciding that the plaintiff must bear seventy per cent of the responsibility. An examination of his Honour�s reasons shows that he took the view that damages were to be reduced to such extent as is just and equitable having regard to the plaintiff�s share in the responsibility for the damage he has suffered. This is the correct test: Law Reform (Miscellaneous Provisions) Act 1962, s. 22(1). Although his Honour also said that �the plaintiff�s behaviour was more culpable than Maip�s�, he has not applied a test which is restricted to the question of culpability. The finding is not that the plaintiff was thirty per cent culpable or that the defendant was seventy per cent at fault. If fault were the test I would think that the plaintiff�s share might well be greater than thirty per cent.

The Supreme Court does not sit as a jury of three required to bring in a verdict. As I stated earlier, on this very question of apportionment, the decision of the trial judge must be given very great weight. The appellate court is not well suited to substitute its own view for that of the trial judge: on precise matters which lead to conclusions on percentages it may well have no collective view at all.

The point was put clearly by Lord Wright British Fame (Owners) v. MacGregor (Owners)[ccclxxviii]³⁶�in a passage cited with approval by the Supreme Court of South Australia in Englehardt v. Garrett and Finn[ccclxxix]³⁷:

�It is a question not of principle or of positive findings of fact or law, but of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. It is for that reason, I think, that an appellate court has been warned against interference, save in very exceptional circumstances, with a judge�s apportionment.�

That puts a trial judge�s findings on apportionment on a different footing from his findings as to whether there was negligence or contributory negligence on the part of the respective parties. In this case it cannot be shown that his Honour acted on a wrong principle and I do not see that he was wrong in any respect.

This ground of appeal must fail.

DAMAGES GENERALLY

Turning to the question of damages the appellant has sought to upset the trial judge�s award of damages on three bases:

N2>1.������ that the amount of K25,000 awarded for pain and suffering and loss of amenities of life was too low;

N2>2.������ that the amount of K40,000 awarded for loss of earning capacity was too low;

N2>3.������ that the trial judge failed to take into account the cost of institutional care.

The third ground was not included in the notice of appeal and the appellant needs the leave of the the court to rely on it.

The principles governing the control to be exercised by an appellate court over the award of damages by a trial judge are not generally different from the principles regarding the disturbing of any other factual finding by a trial judge. Those principles are I trust discussed sufficiently earlier in this judgment.

The peculiar difficulty facing an appellate court consisting of more than one judge which is asked to overturn and even replace a trial judge�s decision has been discussed in relation to apportionment. The difficulty is also present where the several members of the appellate court decide that the trial judge�s award of damages was too high or too low. It would be rare that upon a separate consideration of the case each of the appellate judges (or even a majority of them) would come up with an identical figure to substitute for the award of the trial judge. That result, the failure of the appellate court to agree on a substitute verdict, may be avoided by ordering a new trial, but it is illustrative of the problem.

One method of testing the trial judge�s award is to analyze it, discover its component parts and discern the reasoning behind the whole and behind the parts. It seems to me that this is a preferable approach to another method namely �working out� the damages under various headings, adding them up and then comparing the result with the trial judge�s overall award. This latter method is preferable, perhaps inevitable when testing an award of damages by a jury, and may be appropriate where the trial judge�s method is not stated or is unclear (as is indicated in the following parts of this judgment).

DAMAGES: PAIN AND SUFFERING AND LOSS OF AMENITIES

The first leg of the trial judge�s award which is under attack here is the amount of K25,000 for pain and suffering and loss of amenities of life. This was in itself a global sum and not split up into so much for headaches and so much for forgetfulness and so much for inability to run and so forth. It would be surprising if it were.

There is no doubt that the plaintiff has suffered a very serious injury which has affected him greatly and will continue to do so. There is also no doubt in my mind that the trial judge appreciated this. The medical evidence on this aspect was not really in dispute�none was called on behalf of the defendant�and was fully set out in his Honour�s judgment. The judgment also gave proper weight to the other witnesses, friends and colleagues of the plaintiff, who spoke as to the changes in his personality and habits since the injury. It may be convenient now to set out the evidence on this aspect of the claim, and his Honour�s findings in relation to it.

The appellant was unconscious on admission to hospital and still stuporose when he was transferred to Brisbane a week later. There were no signs of external head injuries. His notable symptoms included a right hemi-paresis. The diagnosis of his condition seemed to be difficult. A carotid angiogram showed a probable traumatic sub-arachnoid haemorrhage with associated swelling. A craniotomy was performed on 21st January, 1976, with no significant findings on operation. A subtemporal decompression was carried out, the appellant�s condition improved and he was discharged from hospital on 7th March, 1976.

At this stage the appellant was considered to have sustained a moderately severe primary brain injury. He was able to walk with the assistance of another person, was somewhat confused and drowsy and had speech problems.

The appellant returned to his home in Victoria. By the time he was next examined by a doctor, Dr. Clezy, in August 1976 he appears to have been back at work, but irritable and erratic. In May 1977 the same doctor found slurred speech, some drooping on the right side of the face and, for the first time �blindness in the right half of the visual field� and fusion of the skull and upper two cervical vertebrae �presumably as a result of an undiagnosed injury to this area at the time of the accident�. When last seen by this doctor in May 1978 there was still slurring of speech, blindness in the right visual field, tremor on the right hand, and stiffness in the cervical spine with disc disease likely to be a problem in later life. This doctor�s evidence was apparently accepted by the trial judge and formed the basis for his Honour�s findings that within ten years or so the appellant will probably be suffering continual pain in the neck and that he will continue to be employed for some ten years or more at a reduced income in work �more of a labouring type� (presumably as storeman or something similar).

The psychiatric and psychological evidence was also taken into account by his Honour and his findings were that the appellant�s state of deficient recall could in time lead him to a state of �confusion� and ultimate hospitalization with the real risk that he may have to live in an institution.

The evidence as to the appellant�s personal history was fully canvassed by his Honour as was the evidence from his friends and work colleagues. The appellant was twenty-four years of age at the time of his injury, having commenced work as a woolclasser in Australia and coming to Papua New Guinea in 1973 to work for Air Niugini, finishing up as a senior cargo officer, with some degree of responsibility for loading and fuelling the aircraft, at the time of his injury. He returned to a somewhat similar position after his injury, as a ramp officer but with less responsibility and less salary. His Honour considered that the appellant�s employment with Air Niugini was likely to cease about the end of 1980. Once he ceased that employment he would in all probability have to return to Australia and seek suitable work there.

The findings of the trial judge as to the deterioration of the quality of the appellant�s life are not under attack. The appellant suffers from a tremor on the right side affecting his ability to carry things steadily and to write and to dance in tune to music. He finds himself forgetful and subject to uncontrollable laughter in company, and also I would think, to irritability: how far these matters give rise to subjective discomfort or embarrassment is not clear. The appellant had to abandon social running or jogging, although he can walk unhindered. He has also given up trail-bike riding which he used to enjoy frequently. His Honour agreed with one of the witnesses that the appellant now leads an �extraordinarily impoverished� social life.

It may be that on first impression the sum of K25,000 for pain and suffering and loss of amenities of life seems too low. It certainly does in comparison with awards in other countries. But awards in other countries are not to the point. The need for awards of damages in this country to meet local needs and circumstances has been recognized judicially, and is required by the Constitution.

It seems to me that there is a good deal to be said for the view expressed by his Honour on an earlier occasion that the values of the Papua New Guinea community constitute the parameters of the award of general damages for personal injuries, and those values are determined by local economic and other conditions as well as standards of fairness appropriate to Papua New Guinea. I doubt whether it is sufficient answer to this to say that a defendant must take a plaintiff as he finds him. I would not think that an expatriate injured in Papua New Guinea is entitled to be compensated for pain and suffering and loss of amenities of life in the sum he could expect to be awarded in his own home country. See generally 1974 Melanesian Law Journal, vol. II, No. 2, p. 180.

However this earlier view of his Honour was disapproved on appeal to the Supreme Court: Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[ccclxxx]³⁸�and I may not give effect to it.

It was put by senior counsel for the appellant that his Honour had or may have wrongly taken into account in mitigation of damages the evidence that the plaintiff was one to make light of his injuries and their seriousness. But I do not see in his Honour�s judgment any reduction, as it were, of the damages for pain and suffering and loss of amenities on this account. It is unnecessary to consider whether this Court should consider the questions that arose in Skelton v. Collins[ccclxxxi]³⁹�and in Lim Poh Choo v. Camden and Islington Area Health Authority[ccclxxxii]⁴⁰, that is the task of awarding damages to a plaintiff converted by injury from an active, healthy and intelligent member of society to a barely sentient human wreck. The plaintiff�s condition fortunately falls well short of that.

An award for pain and suffering is different from an award for economic loss. Nor is it the same in character as in inference from primary facts. It is in the category of a �value judgment� as referred to by Windeyer J. in Edwards v. Noble[ccclxxxiii]⁴¹. Whilst appellate judges may be in �as good a position� as a trial judge to assess damages of this nature, great weight must surely be given to the trial judge�s award. I am not prepared to say that the figure of K25,000 awarded under this heading was so low as to be unreasonable and I would not interfere with it.

DAMAGES: LOSS OF EARNING CAPACITY

Turning to the question of loss of earning capacity, which is a type of economic loss, different considerations apply. It may be that an application of the proper principles of quantification of loss of earning capacity result in a figure which seems astronomic by the standards of most Papua New Guineans but until different principles are developed that result is inevitable at this stage.

The figure of K1,500 for the period up until the end of 1980 is not disputed.

As to the loss of earning capacity from the end of 1980 onwards, a particular difficulty arises in that his Honour did not assign any reasons to support his conclusion that K40,000 was appropriate. This Court has therefore to carry out its own assessment and, having reached a figure, to compare it with his Honour�s in order to judge whether the latter may be supported. The absence of reasons may properly be taken into account as serving to explain an unreasonably low figure and as warranting interference by the appellate court: see Brandi v. Mingot[ccclxxxiv]⁴².

The task of the court is not made any simpler by the state of evidence. The lack of clarity in the evidence may explain the lack of reasons in the judgment of his Honour. The unsatisfactory state of the evidence is reflected in the several pages of arithmetical calculations both parties have put before this Court, calculations which yield startingly different results. It may be reflected too in Mr. Gyles urging us to order a new trial rather than to reassess the evidence. Again the task is made no easier by reason of some of the figures being expressed in kina and some in Australian dollars, some gross and some net after tax, whether at Papua New Guinean or Australian rates of tax.

In this country it may be taken as settled that loss of earning capacity will be calculated on the basis of the plaintiff�s likely earnings net after tax in accordance with the principles of British Transport Commission v. Gourley[ccclxxxv]⁴³. This has been decided in the Supreme Court here and since Independence in Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[ccclxxxvi]⁴⁴.

It is of interest to note that on 1st May last during the hearing of this present appeal the High Court of Australia handed down a decision in Cullen v. Trappel[ccclxxxvii]⁴⁵�reaffirming the principles of Gourley�s case and overruling its own earlier decision in Atlas Tiles Ltd. v. Briers[ccclxxxviii]⁴⁶. The difficulty mentioned by Barwick C.J. in the Atlas Tiles Ltd. v. Briers case, namely the mathematical and legal problems facing a trial judge who is required to assess tax payable on amounts likely to become payable in the future, remains. The difficulty is the greater where as in this case the future earnings are payable in Australia in Australian currency and this Court has to guess at the tax payable.

The approach urged upon us by Mr. Gyles was that we should conclude on the medical evidence that the plaintiff will cease his present employment with Air Niugini towards the end of 1980 and that for the next ten years will be able to follow some form of employment such as a baggage loader or porter, which will be substantially less remunerative than the sort of employment the plaintiff might have expected to follow but for his injury. After that period of ten years he will be substantially unemployable and should be treated thereafter as having lost the whole of the income he might have expected for the rest of his working life.

Subject to the qualifications mentioned below this seems to me to be a reasonable approach and I do not understand Mr. Gunson for the State to have submitted otherwise. It is unlikely having regard to the terms of the trial Judge�s decision that this method of assessment was put to his Honour at the hearing, which is unfortunate.

Where the approach of the appellant and respondent differ, as put to this Court, is the arithmetical calculation of this loss. Mr. Gyles took firstly the weekly net figure which the plaintiff was likely to have earned but for the injury, deducted from it the net weekly amount which he is now likely to earn over the period of ten years and arrived at a �net weekly loss for that period�. Secondly he took the net weekly figure that the plaintiff was likely to have earned over the remainder of his working life. Each of these weekly amounts taken over the two periods was then capitalized in the familiar way and then aggregated.

Mr. Gunson used a different method whereby he took the gross annual amount of what the plaintiff was likely to have earned over the period of the whole of his working life if he had not been injured, capitalized that in the same way, and reduced it by a percentage for tax and by a further percentage for contingencies. He then took what was seen to be the plaintiff�s likely earnings now in view of his injuries, capitalized it and subtracted that figure from the first. This second figure, likely earnings now in view of injury, was calculated in the light of the following three hypothetical situations.

N2>1.������ The position of the appellant where he was regarded as able to work at a reduced income until age sixty-five.

N2>2.������ The position of the appellant where he was able to work at a reduced income until age fifty, and unable to work thereafter.

N2>3.������ The position of the appellant where he was regarded as able to work at a reduced income until age forty only (for the next ten years) and unable to work thereafter.

On the first two of these hypotheses Mr. Gunson was able to calculate that the trial judge was if anything over generous to the plaintiff. On the third however, (that is, on the assumption that the plaintiff will not work beyond the next ten years) it appeared even in Mr. Gunson�s calculations that an appropriate amount for loss of earning capacity would have been in excess of K56,000.

The method used by Mr. Gunson does not appear in principle to be wrong. It seems to me to make more proper allowance for dollar-kina conversion than does that of Mr. Gyles. However there is one important element in the figures used by Mr. Gunson and that is that he incorporates into the plaintiff�s likely earnings in view of injury an overtime factor which adds twenty-five per cent to the gross figure.

I would not include this additional overtime factor. The only evidence on this aspect was as follows (p. 47 of his Honour�s notes):

N2>�Q.���� Porter or baggage loader�involve a substantial reduction in income?

N2>A.������ Less. And nowhere else you could go.

N2>Q.������ If he could get a job, would it carry shift work?

N2>A.������ Yes.

N2>Q.������ So penalty rates a substantial part of his salary?

N2>A.������ Yes.�

It is to be observed that this evidence was given by Mr. Ian Holder the airport manager at Jackson�s airport and what he was talking about was the sort of work that the plaintiff could expect to get in airports around Australia over the next ten years. In my view the evidence is too speculative to be of any real value. It is not directed to overtime but to penalty rates. In any event the plaintiff�s condition brought about by injury may be such as to prevent him working the long hours involved in overtime work, a factor which would increase rather than decrease his damages.

The calculation of loss of earning capacity should in my view proceed on the following basis.

This figure should be discounted further for the uncertainties of life, the possibilities of earlier death, reduced age of retirement, social security payments such as invalid pension and unemployment benefits[ccclxxxix]⁴⁷�and so on. I find that an appropriate end figure for total loss of earning capacity up to and beyond 1980 would be K100,000. This is so far in excess of the figure awarded by the trial judge that I must conclude that his Honour proceeded on a wrong principle or otherwise was in error.

DAMAGES: COST OF INSTITUTIONAL CARE

Mr. Gyles also submitted that his Honour failed to take into account the cost of institutionalization of the appellant at a stage when the effects of the injury had so far overtaken him that it was necessary for him to be treated and confined to some form of institutional care. This ground appeared in the appellant�s written submissions to this Court and was not raised in the notice of appeal. There was no mention of it in the particulars of special damage in the statement of claim. There was no evidence about it, nor I daresay any submission about it at the hearing. As it involves in effect an amendment to the notice of appeal, leave is required to rely on it.

The question of cost of future care and treatment has been discussed lately in other places. See Griffiths v. Kerkemeyer [cccxc]⁴⁸; Lim Poh Choo v. Camden and Islington Health Authority [cccxci]⁴⁹. In such cases a good deal of attention has been given to such questions as to whether ordinary day-to-day living expenses should be included, whether the cost is recoverable by the plaintiff where it is paid for under a compulsory insurance scheme or by the State as a welfare service and whether the plaintiff may recover for services rendered without cost by family or relatives. To consider these questions in the present case on the state of the evidence is in my view to indulge in unwarranted speculation. The institutionalization envisaged will commence if at all many years in the future in Australia. What the nature of the institution will be is quite unclear�it could be a hospital, a half way house or hostel. It may be that trends in medical care (if that is the proper term) will be to keep such people out of institutions altogether.

Moreover as I see it, the trial judge did not conclude that the plaintiff would on the probabilities be a likely candidate for institutionalization. What he said was that �there is a real risk that ultimately the plaintiff may have to live in an institution�. For what it is worth, my own view coincides with that of the trial judge. On this matter of institutionalization then what the plaintiff is entitled to be compensated for is the risk that it might occur, and I see no way in which that might be assessed by reference to weekly cost of nursing figures and the like ten years or more hence. The trial judge alluded to the risk in his judgment: I am not convinced that he did not include it in the figure awarded for pain and suffering and loss of amenities of life.

The facts in this case may be contrasted with those in Kerr v. Motor Vehicles Insurance (P.N.G.) Trust[cccxcii]⁵⁰�where there was clear evidence of the cost of future nursing and care, both as to length of time and rates payable.

I would refuse leave to appeal on this ground.

CONCLUSION

The award appropriate in the light of the above is as follows:

The appeal should therefore be allowed, the verdict set aside and in its place a verdict for K38,967 be substituted with judgment accordingly.

Appeal allowed. Verdict of the trial judge set aside and an award of K38,967 substituted. Appellant to have his costs.

Solicitors for the appellant: Gadens

Solicitor for the respondent: R. K. Woods, Acting State Solicitor.