Papua New Guinea Law Reports - 1964
[1964] PNGLR 167
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
MURRAY
V
BROWN RIVER TIMBER COMPANY LIMITED
Port Moresby
Mann CJ
20-21 September 1962
24 September 1962
12 November 1962
NEGLIGENCE AND BREACH OF STATUTORY DUTY - Contributory negligence - Reception of English law into Papua - Meaning of phrase “the principles and rules of common law...that for the time being shall be in force and prevail in England” - Function of Supreme Court in developing the common law of Papua - Courts and Laws Adopting Ordinance 1889-1951, s. 24.
Section 4 of the Courts and Laws Adopting Ordinance 1889-1951 provides:
“The principles and rules of common law and equity that for the time being shall be in force and prevail in England shall so far as the same shall be applicable to the circumstances of the Possession[cxi]1 be likewise the principles and rules of common law and equity that shall for the time being be in force and prevail, in British New Guinea[cxii]2.”
The common law adopted in the Territory of Papua by virtue of s. 4 includes the common law in England at the present time as it would appear if unaffected by statutes which the Territory courts would not be prepared to regard as incorporated into the general structure of the common law applicable to the Territory.
Semble:
Even if the correct interpretation were that “the principles and rules of common law” in s. 4 included all statutory modifications of common law, and even if the common law on a particular matter had been whittled away or completely abrogated by statute in England, it would be the duty of the Supreme Court of the Territory to declare the common law rules appropriate for Papua.
Booth v. Booth[cxiii]3 distinguished Nyali Ltd. v. Attorney-General[cxiv]4 discussed.
Action:
David Murray brought an action against the Brown River Timber Company Limited claiming damages for breach of contract, for breach of statutory duty, and for negligence. By his statement of claim the plaintiff alleged that the defendant company, his employer, had failed to provide and maintain safe plant and equipment and that, as a result, he had sustained personal injury and loss of wages. In its defence the defendant company denied these allegations and pleaded that there had been contributory negligence on the part of the plaintiff. At the trial counsel for the plaintiff submitted that the defence of contributory negligence did not apply in Papua. This submission depended upon the interpretation of s. 4 of the Courts and Laws Adopting Ordinance 1889-1951. The case is reported on this point only.
(In addition to the cases cited in the judgment counsel for the plaintiff referred to Caffoor v Income Tax Commissioner[cxv]5.)
Counsel:
Cruickshank, for the plaintiff.
White, for the defendant.
C.A.V.
MANN CJ:  The main question arising in the case is as to the applicability of the defence of contributory negligence[cxvi]6.  It is clear that contributory negligence[cxvii]7 is a defence in an action for breach of duty whether arising in a case of contract, tort or statutory duty. Gibby v. East Grinstead Gas & Water Co.[cxviii]8, and Caswell v. Powell Duffryn Collieries[cxix]9.
It was contended on behalf of the plaintiff however, that in the Territory of Papua, the defence of contributory negligence[cxx]10 is not open. It is contended that the doctrine of contributory negligence[cxxi]11 has no application at all under the law at present in force in Papua.  The argument is put upon this footing:
In Great Britain the defence of contributory negligence has been abolished by the Law Reform (Contributory Negligence) Act of 1945. In its place there has been substituted a Statutory rule for apportionment of damages between the parties. The statute itself does not apply of its own force in Papua, because to apply it here would be contrary to the Statute of Westminster the Second, and it has not been expressly adopted and yet its effect, in England, is to abolish this part of the Common Law. In Papua by virtue of Section 4 of the Courts and Laws Adopting Ordinance 1889-1951, the principles and rules of common law and equity that are for the time being in force and prevail in England, are, subject to the test of applicability, to be in force and prevail in the Territory.
It is argued therefore that in the absence of any legislation in the Territory, the abolition by Statute in England of some rule of law in force there, will have the effect of abolishing the same rule of law in the Territory, but any remedial statutory provision enacted in England cannot apply to fill the gap in the Territory.
In Booth v. Booth[cxxii]12, the High Court held that in the former Territory of New Guinea a wife did not lack capacity to hold property for her own separate use. The Ordinances in force in New Guinea under which the principles of common law and equity are expressly adopted, is in very similar terms to those employed in the Papuan Ordinance, except that instead of adopting those principles as in force in England for the time being, Section 16 of the Laws Repeal and Adopting Ordinance of New Guinea 1921-1952, adopts the principles and rules of common law and equity that were in force in England on the 9th day of May, 1921. In Booth v. Booth[cxxiii]13, Starke J. bases his decision upon the view that when adopting ordinances of this character, use an expression such as “principles and rules of common law and equity”, such an expression should be interpreted as being the practical equivalent of the general body of law in force, including statutory provisions which modify or develop the general law.
With great respect it seems to me that such a theory, whilst convenient to apply to the New Guinea Ordinance, cannot be applied to the Papuan Ordinance without producing some extraordinary results. It would mean, in Papua that a vast body of legislation and no doubt subordinate legislation promulgated in England would have to be closely considered to see whether it had any effect on the common law, and since we are concerned with the principles and rules in force for the time being, that process would continue for all time. There is a general judicial inclination against the interpretation of adopting Ordinances to include legislation passed subsequently to the adoption. (Halsbury’s “Laws of England”, 3rd edition, vol. 5, para. 1482.)
There would be enough difficulty in attempting to apply domestic legislation of general application in England, to the Territory, even if it were taken to be clear that there would be no breach of the Statute of Westminster upon the footing that this legislation did not purport to apply to the Territory of its own force, but had been expressly adopted into the Territory by the Territory’s own legislation. On Starke J’s view, I think that it would follow that the Law Reform (Contributory Negligence) Act of 1945 would be applicable in the Territory by virtue of the adopting Ordinance, and that the result would be that in such cases as were covered by the legislation, the damages would be apportioned.
This of itself would not lead to extraordinary or unjust results, for the Territory has been very slow to enact legislation of this class, which has been in force for some years in the Australian States. It is on the wider application of His Honour’s view to the Papuan Ordinance, that I am led to conclude that it was not the intention of the Papuan Ordinance to adopt the whole general body of domestic law in force in England for the time being.
The other two Justices of the High Court, in Booth’s Case[cxxiv]14, do not appear to have based their conclusion solely upon any specific legal theory, but appear so far as I can detect from the judgments, to have adopted what they regarded as a workable and practical result, and imputed to the Ordinance, the intention of reaching that result.
At page 30 of the joint judgment of Rich and Dixon JJ. it is pointed out that the suggested interpretations, if placed upon the New Guinea Ordinance, would produce a legal vacuum on the subject in question-“There would be no law upon the subject. The German law is excluded: the common law would not be introduced, because no longer ‘in force’ in England, and the legislation is omitted from the statutes specifically applied. If this were the case, it might be right to regard a married woman’s status as involving in New Guinea no restrictions on her contractual and proprietary capacity. As no law affecting that capacity would be introduced, she would not differ from a feme sole in that respect. But it is impossible to suppose that the Ordinance really meant to leave outside the scope of the law the whole topic of married women’s property. It is so evidently the intention of the Ordinance to introduce, subject to local Ordinances and to the specified enactments of Queensland and Papua, the whole content of English law applicable to the circumstances of New Guinea that a very wide meaning should be given to section 16 in spite of the difficulties which its language presents. Probably the principles and rules of common law must be taken subject to and together with the statutory modifications in their application which had been made in England before 9th May, 1921. But in any case, it is impossible to give effect to the contention that New Guinea received from the common law the doctrine of the unity of personality of husband and wife so that, except when in equity a separate estate would exist, separate ownership by the wife would be beyond her capacity.”
Their Honours were not prepared to say that the principles of common law must be taken subject to statutory modification. They only said that probably this would be the case, and I think that if I applied the same notion to the Papuan Ordinance, the result would be much more strange than the result which was to be avoided in Booth’s case[cxxv]15.
There is a good deal of authority for the view that an adopting ordinance is to be read very broadly, on the assumption that it is intended to supply a remote colony or community with a working foundation for future legal development. In Nyali Ltd. v. The Attorney-General[cxxvi]16, Lord Denning likened the duties of judges in remote and primitive places to that of a gardener pruning a tree to fit local conditions. He encourages a bold approach to this question, so that the community can start off with a firm legal foundation. The main passage of his judgment on this point at p. 16 is as follows:
“The next proviso provides, however, that the common law is to apply subject to such qualifications as local circumstances render necessary. This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with English common law. You cannot transplant it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed, but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has also many refinements, subtleties and technicalities which are not suited to other folk. These off-shoots must be cut away. In these far-off lands the people must have a law which they understand and which they will respect. The common law cannot fulfil this rule except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a great task which calls for all their wisdom.”
Throughout this passage, it seems to me that in spite of the bold approach indicated, the process envisaged consists more of cutting down and rejecting unsuitable laws, than of filling omissions which may be found to occur. This process of rejection is in any event authorised in the Papuan Adopting Ordinance, by the limitation of the laws adopted to those which are applicable to the Territory, and it was a like provision that Denning L. J. was then considering. This places emphasis on rejection of unsuitable laws, rather than on creating any principles to fill any vacancy.
In the case at present before me, the contention is that the Statute cannot apply, and that by virtue of the Statute there is no Common Law in force in England on the point. Upon a reading of the Law Reform (Contributory Negligence) Act of 1945, it does not appear to me to be quite accurate to say that the Common Law as to contributory negligence has been abolished in England. The operative sections of the Act do not say this in terms. As far as the express words go, the Common Law is left where it stood, but the Act provides in effect that in cases coming within it, the question of contributory negligence is to be dealt within a particular statutory manner to produce a specified result.
There are undoubtedly cases in England where the Common Law rules of contributory negligence apply still, and in a narrow sense it may be said that notwithstanding the English Act of 1945 the Common Law rules still exist, but I do not think that it is prima facie appropriate to say that the Common Law rules as to contributory negligence are “in force” or prevail, when by Statute, in at least a majority of accident cases, they are not to be enforced.
Accordingly in my view, if I am to give a literal meaning to the words employed in the Adopting Ordinance, the result would be that no law could be applied on the point in the Territory.
I think that the appropriate answer to this problem is two-fold:
First, having regard to the plainly intended purpose of this Ordinance, to adopt a complete and workable system of law for the Territory, I should interpret the words of the section widely enough to produce a result which will fulfil that purpose. Commencing at a narrow view of the words which would lead to the conclusion that there was no law on the subject to be adopted, then widening it slightly to the view taken by Starke, J. in Booth v. Booth[cxxvii]17, which as I believe would be found unworkable in the Territory of Papua, and then broadening the words still further, we reach a position where the expression “in force for the time being” is extended to include the Common Law, as it would appear if unaffected by Statutory enactments which the Court interpreting the Ordinance would not be prepared to regard as incorporated into the general structure of the common law or equity, applicable to the Territory. There may be many statutory provisions, which might be adopted as part of the common law, upon the footing that they codify some part of the common law, or merely provide an authoritative statement of it. These and other statutory enactments altering the common law might be more readily adopted as part of the common law under the New Guinea Ordinance, where the intention was only to provide a starting point, but in Papua, where we carry the English principles and rules of common law and equity from day to day, this is not merely a starting point, but a provision designed to enable us to keep our reference material up to date, and not engage in difficult questions such as the ascertainment of the common law at some arbitrary date in the past. The Papuan Ordinance seeks to apply a specification which recognizes the true character of the law, and especially the law of the Territory as a living, dynamic thing rather than a fixed and static thing.
Applying the interpretation of the Papuan Ordinance which I have indicated above, the result would be that the law adopted as applicable to the Territory today, would be the law which would supply the answer to the question today in England - “Quite apart from the Law Reform (Contributory Negligence) Act of 1945, what is the common law position with regard to contributory negligence?” The weakness of this solution is that if it applied in New Guinea, it would tend to produce a result inconsistent with Booth v. Booth[cxxviii]18.
The second footing upon which the Common Law and rules of contributory negligence might be regarded as applicable to the Territory, is that if the Courts and Laws Adopting Ordinance of Papua must be interpreted so as to produce the result that so far as the Ordinance is concerned, there is no common law on the question of contributory negligence, or perhaps more accurately, that there are very few cases to which the remaining common law on the subject can be applied and that those cases are not applicable, then it would become the duty of this Court to declare, if necessary for the first time, what the common law of the Territory on the subject. If there is no law on a subject, it is the function of the Common Law Courts to extend and mould established principles to meet the case.
It is of course true, that in England the flexibility of the Common Law was lost by reason of the rigid rules developed by the Courts themselves, and that the evolution of Equity, having gone through the same phases, led to the more modern situation in England and elsewhere, where the tendency has been for some time for Judges to reject any responsibility for developing the law, and leave that process to Parliament. After a classical period of Parliamentary reform, the statutory revision of lawyers’ law may well find itself in the same position of stagnation as did the Common Law and Equity. In my view, however, these attitudes towards the flexibility of the law and its development in England, are of particular application in a fully developed and civilized community, especially in England where the community has placed a very high emphasis on Parliamentary institutions. In the Territory today, we are still in much the same position in relation to the development of the common law, as were the King’s Justices in Norman times. I think that there is a very substantial task ahead of the Territory Courts in developing the customs and rules of the many social and racial groups in the Territory into one harmonious whole. Accordingly in the process of adapting the rules of common law and equity to the needs of the Territory, I think the Judges should be ready to fill omissions as well as to make adjustments which in the long run, and on a view of legal development elsewhere and particularly in Australia, will produce a complete and, as far as possible, harmonious body of general law.
In the present case, were the Court free to do it, I think that there would be no need to go to the extent of adopting some new rule as part of the Common Law in the Territory. In New Guinea the defence of contributory negligence at Common Law seems to be clearly in force, and in Papua the same rule has been observed for a long time as of general application in claims for negligence. If therefore it is a proper interpretation of the Ordinance that the function of this Court is to develop the common law so as to fill what would otherwise be a gap, I would say that the position is that this Court has in many cases and for a considerable period of years, already developed the law to the extent necesary by applying the defence of contributory negligence. We have therefore reached, on this subject a state of uniformity in the Territory. If a new rule is to be applied, it would be appropriate today and particularly on a subject such as this, which belongs to a comparatively well developed aspect of social organization, for such a rule to be enacted by ordinance.
For the reasons indicated, I conclude that the defence of contributory negligence is available and is of general application in the Territory of Papua.
(His Honour then made his findings upon the evidence and dismissed the action with costs to be taxed.)
Judgment accordingly.
Solicitor for the plaintiff: J. G. Smith, Acting Public Solicitor.
Solicitor for the defendant: N. White, Port Moresby.

[cxi]As to explanation of how the Terms “Possession” and “British New Guinea” now both mean the Territory of Papua see: Letters Patent, 8th June, 1888; Letters Patent, 18th March, 1902 and Proclamation declaring that the Possession of British New Guinea shall be designated the Territory of Papua dated 1st September, 1906, published in Papua Gazette of 1st September, 1906. Ed.
[cxii] As to explanation of how the Terms “Possession” and “British New Guinea” now both mean the Territory of Papua see: Letters Patent, 8th June, 1888; Letters Patent, 18th March, 1902 and Proclamation declaring that the Possession of British New Guinea shall be designated the Territory of Papua dated 1st September, 1906, published in Papua Gazette of 1st September, 1906. Ed.
[cxiii] 53 C.L.R. 1.
[cxiv] (1956) 1 Q.B. 1.
[cxv] (1961) A.C. 584 at p. 601.
[cxvi] The defence of contributory negligence which was held by Mann C. J. in this case to be in force in Papua was later abrogated by S. 22 of the Law Reform (Miscellaneous Provisions) Ordinance 1962 which came in operation on 1st January, 1963. Ed.
[cxvii] The defence of contributory negligence which was held by Mann C. J. in this case to be in force in Papua was later abrogated by S. 22 of the Law Reform (Miscellaneous Provisions) Ordinance 1962 which came in operation on 1st January, 1963. Ed.
[cxviii] (1944) 1 A.E.R. 358.
[cxix] (1940) A.C. 152.
[cxx] The defence of contributory negligence which was held by Mann C. J. in this case to be in force in Papua was later abrogated by S. 22 of the Law Reform (Miscellaneous Provisions) Ordinance 1962 which came in operation on 1st January, 1963. Ed.
[cxxi] The defence of contributory negligence which was held by Mann C. J. in this case to be in force in Papua was later abrogated by S. 22 of the Law Reform (Miscellaneous Provisions) Ordinance 1962 which came in operation on 1st January, 1963. Ed.
[cxxii] (1953) C.L.R. 1.
[cxxiii] (1953) C.L.R. 1.
[cxxiv] 53 C.L.R. 1.
[cxxv] 53 C.L.R. 1.
[cxxvi] (1956) I Q.B. 1.
[cxxvii] 53 C.L.R. 1.
[cxxviii] 53 C.L.R. 1.