Papua New Guinea Law Reports - 1975
[1975] PNGLR 262
SC85
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
DILLINGHAM CORPORATION OF NEW GUINEA PTY LTD
V
CONSTANTINO ALFREDO DIAZ
Port Moresby
Frost CJ Prentice DCJ Raine J
28-30 April 1975
29 September 1975
APPEAL - Supreme Court (Full Court) Act 1968 - No grant of leave - Appeal limited to questions of law and mixed fact and law - Supreme Court (Full Court) Act 1968, ss. 10, 20[cccxviii]2.
DAMAGES - Assessment of general damages - Expatriates injured in Papua New Guinea - Relevant considerations - No deduction for particular economic conditions of Papua New Guinea - General principles discussed.
DAMAGES - Assessment - Pre-trial loss of earnings - Relevant considerations - Discount for contingencies - Whether discount because plaintiff not frugal.
DAMAGES - Personal injuries - Particular awards - Paraplegic - First- class miner aged 32 years - Award of $109,000 general damages including $32,000 for future expenses - Not set aside as excessive.
On an appeal against an award of damages for personal injuries on the ground that the award was excessive,
Held:
(1)      (Raine J, not deciding) In the absence of a grant of leave under s. 10 or s. 20 of the Supreme Court (Full Court) Act 1968, the appeal should be limited to questions of law or questions of mixed law and fact.
(2)      (Frost CJ dissenting) In assessing general damages (including future economic loss) for personal injuries in respect of expatriates injured in Papua New Guinea, no account should be taken of the particular economic conditions of Papua New Guinea. The Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265 not followed.
(3)      In assessing damages for pre-trial loss of earnings no discount should be made because of the use to which a plaintiff might have put his wages or earnings, or because he was not frugal. Fletcher v. Autocar and Transporters Ltd., [1968] 2 Q.B. 322 distinguished.
(4)      Considered as a whole the award of $149,926 (including $75,000 described as general damages, $32,000 for future expenses viz. medical, domestic, car and house alterations and $30,000 for pre-trial loss of earnings), where the respondent (plaintiff) was rendered a paraplegic was not excessive in the circumstances.
Discussion of the problems of compartmentalized estimates of damages and overlapping.
Appeal.
This was an appeal against an award of $149,926 damages to the respondent (plaintiff) in respect of a motor vehicle accident on Bougainville in 1968, as a result of which the respondent was rendered a paraplegic. The appeal was brought on the sole ground that the award of damages was grossly excessive.
A. B. Shand QC with him R. A. Conti for the appellant (defendant) submitted that in the absence of a grant of leave, the appeal was limited to questions of law and of mixed fact and law; that the principle enunciated in The Administration of Papua New Guinea v. Carroll, [1974] P.N.G.L.R. 265 should be extended to cover all forms of damage and in particular to cover economic loss, that the principle enunciated in Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322 applied insofar as it involved a conclusion that damages in respect of pre-trial wage loss should not be allowed as a re-imbursement of wage loss but should be limited to compensation for loss of amenities; and that the assessment was examinable on a number of other grounds including error in calculation and overlapping in the trial judge’s item by item aggregation of damages.
F. McAlary QC with him R. B. Murphy for the respondent (plaintiff) submitted that in the absence of a grant of leave the appeal being limited to questions of law and of mixed law and fact, the only issues open were the application of the principles in The Administration of Papua New Guinea v. Carroll [1974] P.N.G.L.R. 265, and Fletcher v. Autocar and Transporters Ltd. [1968] 2 Q.B. 322.
Editorial Note: 
The Independent State of Papua New Guinea came into effect on the 16th September, 1975, and pursuant to The Constitution of the Independent State of Papua New Guinea (Div. 5 s. 154 et seq.) there was established a National Judicial System consisting of the Supreme Court of Justice, the final court of appeal (the equivalent of the former Full Court of the Supreme Court of Papua New Guinea), the National Court of Justice (the equivalent of the former Supreme Court of Papua New Guinea) and such other courts as might be established under s. 172 of the Constitution. Dillingham Corporation of New Guinea Pty. Ltd. v. Diaz was the first reported decision to be handed down by the new Supreme Court of Justice.
Cur. adv. vult.
29 September 1975
FROST CJ: On 13th October, 1968, the respondent, a single man then aged 32, suffered grave physical injuries when a motor vehicle being driven along Panguna Road, Bougainville, by the appellant’s employee, left the road and rolled down a steep precipice. A fracture to the lower left spine left him a paraplegic.
In the Supreme Court before Lalor J on 23rd September, 1974, he was awarded damages in the sum of $149,926.00, and it is against this award that the appeal is brought, on the ground that the damages were excessive.
There is no dispute about the physical effects of the injury. The respondent remains without sensation below waist level and with no capacity to control his urine or bowels, or ability to move his legs or lower muscles. It is to be taken that he is deprived of sexual function. For movement he will be confined to a wheelchair for the rest of his life. He has a lower urinary tract infection which is common with paraplegics, and his condition is made worse by the spreading of the infection to the upper renal tract and kidneys which will lead to recurrent periods of hospitalization and surgery. After an initial period in the Royal North Shore Hospital in Sydney he had to return to hospital for treatment, once for burns and later for pressure ulceration, both of which flowed from his paraplegic condition. He has had occupational training, first at Mt. Wilga Rehabilitation Centre in New South Wales and later at the Dulwich Hill Hospital conducted by the Civilian Maimed and Limbless Association, where he now lives.
He is employed at a sheltered workshop working in the bookbinding department, for which he is paid $15.00 per week. The trial judge found that “the probability is that the plaintiff’s future employment will be in the lower paid areas of manual work and that his earnings in this employment will be affected by loss of time through illness and a considerably shortened working life”.
At the time of the accident, the respondent was a first-class miner employed by the appellant on the Bougainville Copper Project at Panguna. Of Spanish birth, he had migrated in January 1963 to Australia, where after some casual jobs in New South Wales he had commenced work as a second-class miner with the Snowy Mountains Authority at Cooma. In due course he became a first-class miner and later worked in that capacity in New Zealand before going to Bougainville. The trial judge found that, although there was evidence that he had taken several lengthy holidays of some months’ duration, prior to the accident the respondent was committed to the mining construction industry. He also accepted the evidence to the effect that, at the time of the trial, it was difficult to obtain first-class miners and that but for his disability he could be employed at Bougainville at a gross cash wage of $11,000.00 per annum. In addition he would receive free board and lodging, five weeks’ paid holiday each year and other fringe benefits.
The award of damages was made up as follows:
 	$	
General damages	75,000.00	
Out-of-pocket expenses to date of trial	12,926.00	
Loss of earnings from date of injury to date of trial	30,000.00	
Future expenses, viz.	 	
   Medical	9,000.00	
   Domestic help	13,000.00	
   Car expenses	6,000.00	
   Alterations to a house	4,000.00	
In arriving at the sum of $75,000.00 for general damages, the trial judge applied the reasoning of the majority in The Administration of Papua New Guinea v. Carroll[cccxix]3 in which the plaintiff was an Australian expatriate injured in Papua New Guinea who intended to return eventually to Australia.
The appeal was said to have been brought as of right, the matters involved being matters of law and matters of mixed law or fact. In the absence of any grant of leave by the Court, the appeal must be so limited, and does not extend to questions of fact. (See Supreme Court (Full Court) Act 1968, ss. 10 and 20).
The appellant’s two main arguments were that the principle enunciated in Carroll’s case[cccxx]4 should be extended to cover all forms of damages and, in particular, to cover economic loss, and that the principle enunciated in Fletcher v. Autocar and Transporters Ltd.[cccxxi]5 was applicable and involved the conclusion that damages in respect of pre-trial wage loss should be limited to compensation for loss of amenities. The respondent conceded that these matters were open as grounds of appeal to the appellant, but submitted that the appellant’s attack on the other items of damages could not be put by the appellant as matters of fact only were involved.
In written submissions delivered after the hearing concluded the appellant contended that whilst the assessment of a figure to cover any particular component of a damages claim involves proof of facts and probabilities to which such facts give rise, the formulation of a figure as appropriate compensation is a value judgment which is in no sense a finding of fact, citing Da Costa v. Cockburn Salvage & Trading Pty. Ltd.[cccxxii]6, per Windeyer J at p. 213.
However, this submission is clearly too wide. I consider that it is sufficient to refer to the grounds for interference on appeal with a judge’s assessment of damages. These are, as submitted by the appellant: “that the judge has acted on a wrong principle of law, and that he has made an entirely erroneous estimate of the damages ... If the Judge has misdirected himself as to the law or has given undue or insufficient weight to the evidence, this falls within the first category. If the damages are hopelessly incorrect or if it can be shown by calculation that the judge must have wrongly taken or failed to take certain elements into consideration, this falls within the second category.” (McGregor on Damages, 13th ed., par. 1450). None of these considerations involves mere findings of fact by which the appellant in these proceedings is bound if there is evidence to support them.
Turning to the main ground of appeal, the appellant’s submission involves the soundness of the opinion of the majority in Carroll’s case[cccxxiii]7. If that decision is not to be followed, as the respondent submitted, it would be difficult to disturb the award of general damages. The opinion I was there endeavouring to express was that whilst the award of general damages for pain and suffering and loss of amenities for a plaintiff in the position of an Australian expatriate who intends to return to Australia must be proportionate to the situation of the plaintiff, the damages ought to be based on standards of fairness appropriate to Papua New Guinea, which required awards to be somewhat less than required in Australia. (As I read it, this was also the basis of the judgment of Clarkson J). I then went on to add the proportion I had in mind. The latter statement has been criticized as judicial legislation, as in Benham v. Gambling[cccxxiv]8, and, if taken as more than by way of illustration of the need for moderation, I suppose it is.
The view of my brethren expressed in their judgments which I have read seems to require that in the assessment of general damages for personal injuries to be awarded expatriates, presumably from countries such as Australia, the Philippines or the United Kingdom, no account is to be taken of the particular economic conditions of Papua New Guinea in arriving at a sum by way of fair compensation. I cannot accept that that view is in accordance with the common law applicable in Papua New Guinea, or is one appropriate to the circumstances of the country. To enunciate it as part of the common law of Papua New Guinea would in my opinion be wrong.
None of the arguments submitted by the respondent has persuaded me to resile from the opinion I expressed in Carroll’s case[cccxxv]9, and I adhere to that opinion for the reasons I then gave. However, it would be going beyond the decision in that case to assess the sum to be awarded for loss of economic capacity otherwise than upon the evidence relating to earning capacity in the conditions of the mining construction or other Australian industry to which the trial judge found that the plaintiff would return.
The assessment of the plaintiff’s damages in the sum of $75,000.00 was made, as stated by the trial judge, after making a final reduction in the non-economic general damages by reason of the circumstances of the country.
The items to be thus allowed for were pain and suffering, loss of amenities of life and future economic capacity. Having regard to the plaintiff’s grave incapacitation, clearly a very large award was required. Indeed the appellant’s submission sought no reduction beyond a figure of $50,000.00 to $55,000.00. Although the items referred to were not quantified, the total sum was supported by findings of fact which upon the whole of the evidence I am not convinced were wrong. So far as loss of economic capacity is concerned these findings were that whilst the plaintiff was committed to the mining construction industry substantial allowance must be made for the possibility that he may have left that industry after reaching the age of 40, and taken a less remunerative job for reasons personal to himself. But his Honour considered that the respondent would leave only to take up employment which though lower paid was still reasonably remunerative. His Honour further found as a fact that the respondent’s future employment would be in the lower paid order of manual work. This finding, based on the evidence of Dr. Norington, was attacked on the ground that due weight was not given to the evidence of Alan Thomas Hayes, who was the welfare manager of the Civilian Maimed and Limbless Association and who had come into contact with the respondent at the sheltered workshop. Dr. Norington had seen the respondent it is true at an earlier period, but in his capacity as a rehabilitation consultant at Mt. Wilga. His view that the respondent was suitable only for light bench work was supported by the very good reason of the respondent’s lack of facility in English which persisted during the period that Dr. Norington had known him. Reading the evidence of Mr. Hayes as a whole, from which it appeared that the respondent was a reserved man not given to speaking in English to his associates, I consider that it did not require the judge to qualify the evidence of Dr. Norington.
The appellant’s attack upon the sum awarded for general damages was not directed along the lines that the size of it was unsupportably excessive, but rather upon the basis that having regard to the various items so aggregated it fell within the vice of overlapping. The appellant relied on Lord Denning’s judgment in Fletcher v. Autocar and Transporters Ltd.[cccxxvi]10 in which the Master of the Rolls considered by way of illustration the case of a bachelor aged 56, unlikely to marry, who earned $8,000.00 per annum, and spent it all on the pleasures of living in hotels and clubs and in recreation such as golf, fishing and shooting, without saving anything. Lord Denning’s view was that it would not be fair to award such a plaintiff, in addition to a sum for loss of amenities, his estimated future salary without also making a deduction for the cost of those pleasures which the plaintiff would have been required to meet from his salary.
Although the cost of amenities no longer open to the respondent because of his disability has to be borne in mind, in my opinion the evidence in this case is insufficient to support any submission going to the length of the case so supposed by Lord Denning. All that emerges from the evidence is that the plaintiff spent long holidays, one abroad in South America, after stints of steady work. There was no evidence as to the respondent’s savings nor as to the cost of those holidays, nor whether the respondent was likely to continue in this way after his projected trip to Spain on his first leave from Bougainville. Further, his simple pleasures of swimming, fishing and bushwalking in Australia would not involve expense of the order considered in the case taken by Lord Denning.
The appellant also submitted that the award took no account of the income available from the aggregate sum by investment, but such a consideration by itself is no cause to disturb an award otherwise supported by the evidence.
The award of damages in a case such as this was no easy task and the conclusion I have reached is that merely by looking at the sum awarded it cannot be said that the trial judge fell into the vice of overlapping, and that the award of general damages should not be disturbed.
Turning to the other items, as Raine J points out in his judgment, the observations of Lord Denning in Fletcher v. Autocar and Transporters Ltd.[cccxxvii]11 were not there applied to pre-trial damages, and it would be going against the invariable practice of the courts to reduce the pre-trial loss of earnings for any consideration other than contingencies. Whilst there are grounds for criticism of the award of $30,000.00 damages for loss of pre-trial earnings as being $2,000.00 to $3,000.00 too high, this involves a finding of fact upon the proportion of time which the respondent spent on unpaid holidays and is thus not open to the appellant. In any event the sum involved would not lead me on this account to disturb the award taken as a global sum. As for the other items of future expenses, although the sum allowed for the additional cost of mileage for the running of a motorcar caused by the respondent’s incapacitated condition is rather higher than I would have awarded, I am not persuaded that it was wrong. The sums awarded for future domestic assistance and cost of alterations to a house were justified having regard to the plaintiff’s evidence that he preferred to live in a house rather than a hostel and are not excessive.
For these reasons in my opinion the appeal should be dismissed.
PRENTICE DCJ: This is an appeal against an award of $149,926 to the respondent in respect of personal injuries suffered in a motor car accident on the Panguna Road, Bougainville in 1968. As a result of the injuries he sustained, the respondent remains a paraplegic. The appeal was brought only as to the amount of the verdict — the defendant claiming it was grossly excessive.
QUESTIONS OF FACT
The appeal was alleged to lie as of right, being as to matters of law and as to matters of mixed law and fact. Respondent’s counsel challenged the right of the appellant to appeal against certain of the learned trial judge’s findings — these being, he submitted, as to matters of fact.
No leave had been, or was at the hearing of this appeal, sought in aid of those points of appeal which were challenged. The appellant’s counsel does not concede that the points subject to challenge are matters of fact; basing his submission on the proposition that the formulation of an appropriate figure to cover any aspect of such a claim for damages as is involved here, requires a “value judgment” as to appropriate compensation — such being a question of mixed fact and law.
The difficulty courts have in deciding whether questions relate to fact or law, is revealed in numerous judgments. Thus, two such eminent Judges as Jordan CJ and Davidson J, after collating many cases on the subject, came to diametrically opposed conclusions in The Australian Gas Light Company v. The Valuer-General[cccxxviii]12 as to whether construction of a statute could or should be regarded as a question of fact. Whereas Jordan CJ found that,
“The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law ...”
Davidson J enunciated:
“On these decisions I would with great diffidence conclude that the construction of a statute or any other instrument is always a question of law.”
No doubt the investigation of whether a point involves a “matter of mixed law and fact” will awaken similar disagreement. Denning LJ (as he then was) tried to enlighten the distinction between “fact” and “law” in the following terms:
“On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and so far as these conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts: ... If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination by a trained lawyer — as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer — the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of the first instance.” (British Launderers’ Research Association v. Central Middlesex Assessment Committee and Hendon Rating Authority[cccxxix]13.) (The emphasis is mine.)
THE FIGURES WHICH ARE CONTESTED
Of the total amount of $149,926; the appellant concedes that the figure of $12,926 representing “the expenses to date of trial” must be allowed. The appellant challenges the computation of the balance of the special damages of $30,000. He challenges the evaluation of general damage at $75,000. And he challenges the assessment of evaluation of $32,000 for future expenses.
THE PROPOSITIONS URGED IN SUPPORT OF THE APPEAL
The appellant has argued the following propositions in support of a reduction of the verdict:
(a)      That to compensate the respondent for loss of earnings to the date of the trial was wrong — as he had indicated that he was not a saver, but was improvident (reliance was placed on Fletcher v. Autocar and Transporters Ltd.)[cccxxx]14;
(b)      That it was wrong not to have extended the principles of Carroll’s case[cccxxxi]15 to economic loss;
(c)      That his Honour’s compartmentalised estimates of damages included a considerable degree of overlapping;
(d)      That a conclusion that the respondent would have continued a miner’s life for any significant number of years after the accident was wrong;
(e)      That a conclusion that the respondent in the state of paraplegia in which he found himself would have wished to live in his own establishment and to incur the necessity for domestic help was wrong;
(f)      That is was wrong to conclude that a clerical life was not likely to be open to the respondent;
(g)      That it was wrong to conclude that the respondent should expect a deterioration of general health and consequent shortening of working life;
(h)      That it was wrong to conclude that the respondent would wish to obtain and drive a specially fitted motor car and that it was reasonable to make some provision for that eventuality.
The propositions denoted (a) and (b) are, it is conceded, properly urged as being matters of law. Proposition (c) if established, would indicate an error in procedure by the trial judge such as would amount to a mistake of law. I propose to return to those submissions. The remaining propositions (d), (e), (f), (g) and (h), involve what are to my mind decisions of fact and inferences from facts proved. They appear to involve what would commonly be described as “jury questions”. I am of the opinion that as such, they are each appealable without leave of the Court, only if it can be shown that:
(a)      There was no evidence to support them; or
(b)      That the trial judge had wrongly directed himself in point of law in coming initially to the points involved; or
(c)      That the conclusions were such as could not reasonably be deduced from the primary facts proved.
As an illustration of the way the appellant’s counsel wishes this Court to approach the problem I instance his submissions that the amount actually allowed for loss of wages can be shown arithmetically to be excessive. His submissions amount no more in my opinion than to an arguable alternative. They involve substituting calculations as to contingencies, periods of likely unpaid holidays and time loss, as well as to taxation — for those in reality made by his Honour. To my mind the trial judge’s estimate as to net wage loss of some $35,000 (actually $34,600) appears open on the evidence, and the reductions which he apparently made for taxation and contingencies and probabilities as to continuity of working, appear open.
I am unable to appreciate that the evidence did not provide material on which the trial judge could reasonably and properly have made the findings and formed the conclusions which he did. The weight to be given to the evidence of the respective witnesses was within his province; and he cannot I think, be shown to have overlooked any of the evidence. It does not therefore avail to suggest that this Court should prefer the evidence of one witness to another. I would therefore reject the appeal so far as it is based on these propositions.
CARROLL’S CASE
The trial judge indicated that he had made a deduction from the amount of general damages of a non-economic nature, which he would otherwise have awarded. He did this to comply with what he understood to be the principle of the decision in The Administration v. Carroll[cccxxxii]16. It was urged upon him, as it was upon this Court, that a similar deduction to allow for “the circumstances of the country” should be made in respect of non-economic damages. His Honour found himself though bound by, unable to agree with, the decision of the majority in Carroll’s case[cccxxxiii]17. With all due respect to the opinions of the majority therein, I agree with his Honour the trial judge in considering the Carroll case[cccxxxiv]18 decision wrong.
As I understand it, the principle in Carroll’s case[cccxxxv]19 seems to be that in making awards of damages for pain and suffering and loss of amenities of life in Papua New Guinea, even though the award be in favour of an expatriate who the Court contemplates will reside outside, and spend the moneys of the award outside Papua New Guinea, the Court henceforth should compute the amount of the award which it would normally make, and then reduce it by a percentage of twenty to twenty-five per cent.
I speak with some diffidence on the subject of Carroll’s case[cccxxxvi]20 for I confess to having had some difficulty in understanding its reasoning. If deductions are to be made from one portion of an award, to accord with what are thought to be circumstances of the country of the verdict, I cannot understand why in logic, such a deduction should not be made to the proved figures as to economic loss past and future, and indeed to that of proved expenses and out-of-pockets. One imagines that the hospitalisation and medical expenses of a gravely-injured visiting millionaire might be far in excess of anything he or a Papua New Guinean might have been expected to incur in this country in seeking a cure for similar disabilities. Should such a man as a plaintiff, have his pecuniary losses cut down?
As I understand his judgment, Frost SPJ (as he then was) seems to have been concerned to decide whether “one common standard in practice be applied ... in Papua New Guinea having regard to the great difference in the living standards reflected in the wide range of earnings throughout the country”. I will assume that his Honour was intending to confine his remarks to “loss of amenities of life” — though it is I think open to infer that he intended also to cover damages for pain and suffering. Though his Honour in his reference to a piano-playing plaintiff and the quotation from the Planet Fisheries’ case[cccxxxvii]21 makes passing mention of a need to distinguish on these heads of damages between plaintiff and plaintiff; he proceeds nevertheless to remark (at p. 13) “But it does not follow, in my opinion, that the respondent is entitled to the full award of damages which would be arrived at by an Australian Court”. He then gives consideration to the question of rates of insurance premiums; and arrives at the conclusion not that some sort of common standard should be set for “loss of amenities of life”, similar to what had been done by the House of Lords in “loss of expectation of life” cases, in Benham v. Gambling[cccxxxviii]22 and by the High Court of Australia in “permanent unconsciousness cases” in Skelton v. Collins[cccxxxix]23 but that an arbitrary deduction should be made in Papua New Guinea cases from the damages that might otherwise have been awarded on the findings. I quote from his remarks at p. 276:
“Accordingly, to ensure that the awards of damages for Australian expatriates (and others in the same position) should be seen to bear quite distinctly the element of moderation the sums awarded should, in my opinion, be some degree less than the sum which would have been awarded in Australia. The proposition I have in mind is one-quarter to one-fifth.”
His Honour began his approach to the position by an application of the remarks of Diplock LJ (as he then was) in Fletcher’s case[cccxl]24 and of Lord Devlin dissenting in West’s case[cccxli]25; to the effect that on this branch of damages a rich man should receive no more than a poor man. He speaks of the High Court’s approval of Lord Devlin’s speech. I would wish to make a few observations thereon. Firstly I think it is desirable to note that the dicta relied on both occur in cases dealing with massive mental deterioration, one of them indeed of permanent unconsciousness. Secondly I would suggest that though in general it would be correct to say that the law “does not permit more to be paid to the rich or less to the poor” (for comparable injuries); one can visualise cases in which it would do just that. I instance the case of a rich man whose wealth had permitted him to enjoy all kinds of leisure activities beyond that of the average man, a rich man whose income being investment in nature had perhaps not been affected by the accident which immobilised him. I imagine he would properly be compensated in a larger sum for loss of amenities of life than would an unimaginative man of modest wage-earning ability, living in a suburbia, whose only real leisure activities were drinking and following the football pools, should the latter suffer a similar immobilisation. That Lord Denning while anxious to assert that wealth and poverty may be disregarded in certain classes of cases, was nevertheless not losing sight of the fact that the differences between individuals may not be so disregarded, appears in the same judgment. I refer to the passage at p. 354 where his Lordship says —
“You must ascertain the use to which the limb would have been put so as to ascertain what it is that the victim has actually been deprived of”
and again, in the first sentence of the passage actually quoted by Frost SPJ, namely,
“Of course the extent of a plaintiff’s want depends upon the standards of life to which he or she is accustomed”.
Again one finds it difficult to envisage that Lord Devlin was endeavouring to do more than to cater arbitrarily for the “permanent unconsciousness” or “human vegetable” cases, when he suggested a trebling or quadrupling of the amount actually spent on pleasure as a yard-stick by which to set a more or less fixed amount to cover all cases of loss of amenities. One can imagine the man who spends hours a day playing a piano or a fiddle for pleasure, or one who spends a day each week bush-walking, both of whom might spend next to nothing on their pleasures but be grievously deprived by a tortiously caused immobilisation.
The non-pecuniary award of compensation for loss say of an arm, may in certain cases be the same for rich and poor, but it must surely be greater for a man whose greatest joy in life is that of playing a piano or playing golf than it is for a man whose sole recreation is reading and walking; an eye injury resulting in loss of reading ability must surely be compensated for by an award of a greater amount to a cultured scholar suffering the loss than to an unlettered labourer victim to a similar disability.
These cases and judgments around which controversy has raged did not it seems to me assert that damages for pain and suffering and loss of amenities should be reduced to an average or some sort of scale for universal application — such as was done in the House of Lords in Benham v. Gambling[cccxlii]26 and extended by the High Court in Skelton v. Collins[cccxliii]27. Lord Devlin himself refers to West’s case[cccxliv]28 as “an extreme case”. Both it, Wise’s case[cccxlv]29 and Skelton’s case[cccxlvi]30 were concerned to separate out an objective from a subjective element in unconsciousness cases.
It is true that the majority of the High Court of Australia approved of the reasoning and the judgment of Diplock LJ in Wise’s case[cccxlvii]31 and of Lord Devlin in West’s case[cccxlviii]32 dissenting as each of them was. But I do not take their expressed approvals (Skelton v. Collins[cccxlix]33; Kitto J at p. 103, Taylor J at pp. 110, 111, 112 and Owen J at p. 139) as adopting unreservedly all the dicta therein; nor as perhaps going further than deciding that the Benham v. Gambling[cccl]34 principle of making arbitrarily small awards in loss of expectation of life cases should be extended to the permanent unconsciousness cases. With respect I do not regard the case as supporting the conclusion to which Frost SPJ has come. His Honour also purported to rely on the oft-quoted remarks of Cockburn CJ in Phillip’s case[cccli]35 and of Baron Parke in Rowley’s case[ccclii]36. These two cases have been cited with approval by Lord Devlin dissenting in West’s case[cccliii]37, and by Lord Denning in Fletcher’s case[cccliv]38. One has been accustomed for many years to hearing juries advised that they cannot give “perfect” or “full” compensation. I have never taken such sayings to be really helpful in the late twentieth century. Unless the other standing direction to a jury “that the purpose of compensatory damages in an action for personal injuries is to put the victim in the same position as he would have been if he had not sustained those injuries so far as money can do it”, which Lord Diplock refers to as a “platitude” (Fletcher’s case[ccclv]39), are to be regarded as ceasing to be apt; I would suggest with respect that the nineteenth century language quoted should be given restricted meaning. With respect I suggest that nowadays it should be taken as expressing: (1) the recognition that money cannot restore in actuality, or replace in theory the loss of limbs, health or bodily function; and (2) an injunction against committing an extravagance that might work injustice between citizen and citizen.
His Honour also supports his conclusion as to the necessity to cut down damages verdicts in Papua New Guinea, by reference to the question of rates of insurance premiums, and the effects on premium payers. His Honour was of course relying on a reference by Windeyer J in Skelton v. Collins[ccclvi]40 and by Lord Devlin and Diplock, LJ in West’s case[ccclvii]41 and Wise’s case[ccclviii]42 respectively. With the greatest respect, both on this and the topic with which I have last been dealing, I prefer to place myself in the company of Salmon LJ (as he then was) in Fletcher’s case[ccclix]43 when he says:—
“The sole duty of the court is to award a plaintiff that to which he is entitled, namely fair and reasonable compensation for the loss he has suffered, irrespective of the repercussions of such an award. A plaintiff’s loss cannot depend in any way upon whether the defendants or their insurers have assets worth many millions or are on the verge of insolvency, nor upon whether the defendant’s negligence was grossly culpable or amounted merely to inadvertance. I have not lost sight of the oft-quoted citations from the dissenting judgment of Brett J in Rowley v. London & North Western Railway Co., to the effect that damages should not be to the full amount of perfect compensation but must be reasonable and not exceed what, under all the circumstances, is fair compensation. Much the same was said in Phillips v. London & South Western Railway Co. I, of course, accept the dicta in those cases. They are particularly applicable in relation to damages for pain and suffering and loss of amenities. In considering their implications today, the following factors should be kept in mind. Although both the defendants were railway companies, the courts were considering the impact of awards of damages against the general body of defendants in accident cases towards the end of last century. A substantial proportion of such defendants were then uninsured. Moreover, the view was still current that damages for tort were, at any rate in part, a punishment for wrongdoing, and it would be an unjust punishment to make awards large enough to ruin men of reasonable means. Today, however, virtually all defendants in accident cases are insured. This certainly does not mean that compensation should be extravagant, but there is no reason why it should not be realistic. If the current conventional scale of compensation is somewhat too low, as I think it is, to raise it to its proper level would be no more than just to plaintiffs and would ruin no one. It might result in some moderate increase in premium rates, which no one would relish but of which no one, in my view, could justly complain. It would be monstrous to keep down premiums by depressing damages below their proper level, i.e., a level which ordinary men would regard as fair — unprejudiced by its impact upon their own pockets.”
Insurance companies, in my experience, are quite able to look after themselves by fixing appropriate premium rates where they are free to do so; and by making representation to the Governments which fix them in cases where they are not. One notes that in the United Kingdom a country where insurance and underwriting business amounts to a most important national industry, this fact may be reflected, no doubt unconsciously, in the tendency of the Courts to keep verdicts low. I do not think it is part of the duty of the Courts in this country to concern themselves in advance with the effect verdicts might have upon defendants or upon future premium rates. Rather, I have no doubt that the Government of the day and insurance companies between them, will fix appropriate premium rates in the light of past and of potential damages verdicts. It would be equally open to the legislature to fix in some way a schedule of compensatory payments if it so desires.
I understand that a standard method of scaling down damages applied for some years in South Australia and Western Australia. Such a process of subtraction of twenty-five per cent from the amount of estimated future loss on awards was expressly disapproved by the High Court in Bresatz and Another v. Przibilla and Another[ccclx]44. In my respectful opinion, it should not be attempted here, in relation to damages for pain and suffering or loss of amenities of life.
I have no doubt that over the years, even without legislation, a pattern of verdicts in damages will emerge here which may differ from other countries. I do not think, however, that this Court should set out consciously and deliberately to produce a much lower scale of verdict in Papua New Guinea under the present system of tortious liability, than would apply elsewhere, in cases where people of a higher standard of living are injured — more particularly where it is contemplated they will have to live in and suffer their disabilities in, other countries. I note that Minogue CJ in Carroll’s case[ccclxi]45 approached the question of the extent to which Papua New Guinea conditions of living may be taken into account in a verdict, by quoting with approval from Windeyer J’s judgment in Skelton v. Collins[ccclxii]46. But it is, I think, necessary to keep in mind that when Windeyer J spoke of paying regard to “welfare services, pensions, hospital aid, sick pay, rates of wages and so on”, he was not speaking of damages for pain and suffering and loss of amenities of life but of damages for personal injury generally. Nor was he applying his mind to the matter of damages being awarded to a plaintiff in one country to alleviate difficulties then being suffered by him in another. For myself, I have no difficulty in seeing immediately that local conditions in an award must be taken into account in many respects. I instance — (1) the value of the currency; (2) how it may be expected the award moneys could physically be put to use in the country of their expected spending; and (3) what substitutional compensation or solace the money can provide in the environment of the particular country — that is the facilities it could provide.
As Minogue CJ pointed out (p. 269), the task of the Court is to provide a plaintiff with “a fair compensation to accord with his needs”. Unless and until the legislature sees fit to provide set scales of compensation for types of injuries done, or sets limits to amounts that may be awarded I do not think that this Court should resile from the aim involved in that dictum. That this fair compensation could be achieved; it is incumbent upon a tortfeasor to take his plaintiff as he finds him. If he (or the insurance company which may support him) becomes responsible for injury to the Head of Government or a technical officer of the highest qualification, he must be prepared to compensate on a scale far higher than for a simple villager of very modest needs. Just as the amount awarded for expenses and economic losses will vary; so I conceive, should that of pain and suffering and loss of amenities. If Fletcher’s case[ccclxiii]47 is to be regarded as the first step (a sidestep perhaps around West’s case[ccclxiv]48 and Skelton v. Collins[ccclxv]49) towards the introduction of an arbitrary figure for an award in all cases under the head of pain and suffering and loss of amenities, as distinct from those involving permanent unconsciousness cases; I would demur to essaying such a step in Papua New Guinea.
I may say that I have considerable doubt whether in arbitrarily deciding that awards for pain and suffering and loss of amenities of life should henceforth be scaled down in Papua New Guinea by a particular fraction; the court could be said to be applying the principles of the Common Law of England as they were in force on 9th May, 1921 so far as the same are suitable to the circumstances of the country. It may be that such a ruling could be made if it could be shown that circumstances had changed in New Guinea so that the common law practice of assessing damages of 1921 had become inapplicable, or that some repugnancy or inconsistency had developed (s. 16, Laws Repeal and Adopting Act 1921). These matters were not argued on this appeal.
CLARKSON J’S JUDGMENT
Clarkson J was the other member of the Court forming the majority in Carroll’s case[ccclxvi]50.
His Honour placed in the forefront of his judgment the assumption that damage for non-pecuniary loss “cannot give restitution”. As I understand it, this is the very object of awards of damages though qualified by the time-honoured jury phrase “so far as money can”. Perhaps his Honour was thinking of the technical meaning of “restitution” to be drawn from the Latin phrase “restitutio in integrum”. But one would find difficulty distinguishing these days, I think, between “restitution”, “compensation” and “reparation”. I don’t think for myself that there is any distinction to be made between “restitution” and “compensation” in this connection. His Honour refers to Harman LJ’s dictum in Warren v. King[ccclxvii]51. This latter considered that in the case of a quadriplegic one should seek “what can be done to alleviate the disaster to the victim, what it will cost to enable her to live as tolerably as may be in the circumstances”. With respect, this case also seems to be an attempt to further extend the “permanent unconsciousness” cases, in which the Courts have held in effect that since nothing that can be given can do anything to bring conscious satisfaction and alleviation to the victim — a notional amount only should be awarded for pain and suffering and loss of enjoyment of life. With respect, it seems to me perhaps, to confuse what has been for generations regarded as a proper head of damage — loss of the enjoyment of life — with the recognised obligation to provide all proper medical and institutional and therapeutic care — a clearly quantifiable pecuniary head.
Rather I think Harman LJ was devising some sort of comparison test; for in his judgment, shortly after the passage quoted by Clarkson J, he proceeds from consideration of loss of amenities of life to say “nor is this element the only one. Pain and suffering will still have to be taken into account ... mental suffering is of great importance”. Harman LJ’s remarks bear generally the emphasis that there must be in all the circumstances a fair compensation — he underlines this phrase in his judgment. It is also to be noted that in the same case, Sellers LJ in citing Lord Devlin’s remarks (West’s case[ccclxviii]52) upon the reference to “perfect compensation” in Rowley’s case[ccclxix]53 — states: “I do not understand that Lord Devlin was of the opinion that at Common Law something less than full damages should be given, for one would ask at once, how much less?”
But in any case it does not to my mind found an argument for arbitrarily applying a lower standard of compensation in Papua New Guinea to an expatriate injured here and suffering disabilities elsewhere, than would be awarded him for example by an Australian Court. Indeed, it seems to me that under the Koop v. Bebb[ccclxx]54 principle, this action could have been brought in an Australian Court. Frankly I have been unable to follow his Honour’s chain of reasoning by which he moves from an interesting discussion of the theory of damages to the conclusion that the damages in that case should be reduced. His Honour expressed agreement with the reduction proposed by Frost SPJ without stating any actual concurrence in the method of applying a percentage reduction. I have not been able to identify to what test his Honour was referring when he said (at p. 281 of the judgment),
“The test I have referred to is applied to each person entitled to damages in the light of his own circumstances.”
I am of the respectful opinion therefore that Carroll’s case[ccclxxi]55 was wrongly decided. The question remains whether nevertheless it should be followed.
STARE DECISIS
As a Court of a now independent country, this Court will henceforth be charged with the responsibility of deciding whether the decisions of its predecessor Court, of Judges appointed from Australia, whose judgments were subject to appeal by leave to the High Court of Australia — should be followed by it. Organic Laws being formed in association with the making of a Constitution may have something mandatory or inhibiting to say on the subject.
It would of course be productive of uncertainty in commerce and law; and disruptive of judicial comity; should this Supreme Court, every time it is differently constituted, consider itself free to reconsider and refuse to follow earlier decisions. Lacking differing surrounding circumstances, and in the interest of certitude in affairs, it would no doubt be reluctant to refuse to follow a previous decision of the Full Court or of itself. The High Court of Australia has from time to time refused to follow its own previous decisions, and indeed over the decades has from time to time reversed quite prominent judicial interpretative policies. In 1966 the House of Lords announced that it will be doing likewise in appropriate cases, and has already set aside the much criticised Rookes v. Barnard & Ors.[ccclxxii]56 decision. No doubt the longer a decision has stood, the greater will be the reluctance to “upset it”, and thereby possibly to create uncertainty in the country’s and men’s affairs.
However the decision in Carroll’s case[ccclxxiii]57 was arrived at only in 1974. With great respect to those delivering the majority judgments delivered therein, it has been greatly criticised. I myself think it was plainly wrong and should not be followed. I am of the opinion that in any event its principle should not be extended to questions of economic loss (though I am unable to say why in logic, it should not). There do not appear to be circumstances and features akin to those noted by the Privy Council in Geelong Harbor Trust Commissioners v. Gibbs Bright & Co.[ccclxxiv]58 why the decision should continue to be followed, even though thought wrong. In my opinion this Court should hold that the appeal is not sustainable by any reliance on Carroll’s case[ccclxxv]59 and find that the trial judge’s deduction on its account should not have been made.
SUBMISSIONS BASED ON FLETCHER’S CASE
I have endeavoured to set out in propositions (a) and (c) above what I understand to have been submissions by Mr. Shand in regard to both the trial judge’s assessment of $30,000 as a pre-trial loss of earnings figure, and the $75,000 general damages, and $32,000 future expenses figures; based on the decision in Fletcher v. Autocar and Transporters Ltd.[ccclxxvi]60.
It was argued firstly (setting apart the other submissions based on findings that I regard as unappellable) that this plaintiff should not have been given the whole of his pre-trial loss of earnings. His pre-injury pattern of employment indicated that he was not a man who saved money — nor was he likely to settle down — he was not therefore to be considered as robbed by the accident of his earnings — a “perfect compensation” should not be attempted (one notes in passing the Fletcher case[ccclxxvii]61 was concerned with that portion of the award therein relevant to future loss only). I try to bear in mind the distinction made by Barwick CJ in Arthur Robinson (Grafton) Pty. Ltd. v. Carter[ccclxxviii]62 between “loss of earning capacity” and “loss of earnings” — the former being that for which compensation must be sought. It may be difficult to understand why such a distinction should be made — in an arena where so many incalculables exist, an element of comparative certainty lay in the calculation of wage loss, to which persons could turn with confidence. Nevertheless I think that in the majority of cases, an actual sum representing wages lost to date of trial is usually put forward, and indeed accepted, as a proper measure of the loss of earning capacity to that point of time. Agreement could not be obtained here, because of the nature of the plaintiff’s history of employment prior to and at the date of the mishap. But I do not understand it to have been controverted that his wage loss to date of trial, so far as it could then be computed, would represent the measure of his loss of earning capacity to that time.
That a wage loss or loss of earning capacity should be discounted because of the use to which the plaintiff might have put his wages or earnings, is to my mind a novel proposition in the law. I am comforted to note that the view I would take, compares with that of Salmon LJ (as he then was) (Fletcher’s case[ccclxxix]63 at pp. 359 and 361), where he stated:
“How the plaintiff spent his income before the accident or how he might, but for his injuries, have spent it afterwards, is nothing to do with the defendants.”
Short of licence, people are entitled to order their lives and their pleasures as they see fit, and tortfeasors must compensate them fairly and reasonably for depriving them of their ability to do so. It is not I think, for courts to seek to impugn and castigate through their verdicts the failure to save money, or the desire to use present earnings for present needs.
Indeed certain juries or courts if they were so inclined, might well take the view that conservation for future expenditure on say yachting or international trips can be a form of profligacy equivalent to that of indulging in the instant delights of beer-drinking and gambling. In Fletcher’s case[ccclxxx]64 as I understand it, a Court of Appeal held that in the circumstances of that plaintiff, there had been an overlapping in arriving at the verdict; in that full allowance had been made him for hospitalisation for the remainder of his life, yet no deduction had been made from a full award of estimated loss arising from loss of earning capacity, for what he would have had to expend on accommodation but for his injury; and also for the fact that such portions of his future earnings as would have been expended on pleasures, would have been catered for in that portion of the award directed towards loss of amenities of life. The appellant suggests that a similar overlapping has taken place here.
I admit to some puzzlement as to how to reconcile the strictures of various Courts of Appeal on the one hand against the judge acting like a jury and producing an award of damages without any analysis of heads of award; and on the other, against a judge considering separate heads of assessment, and attempting to join them together after making adjustment for contingencies and possibilities of overlapping. Despite such criticism, Courts of Appeal yet find it necessary themselves to consider separately, and to compute separately, the various heads of damage, and to make appropriate additions in arriving at, to use the current phrase, an “in globo” (which I take to mean no more than a “lump sum”) award. (For myself, I find it difficult to avoid an approach of the kind the trial judge has undertaken here (and compare the remarks of Salmon LJ in Fletcher’s case[ccclxxxi]65 at p. 355).
On argument as to overlapping, it is a case of considering the particular circumstances of the plaintiff involved. In the first place there is a significant difference in this case from that found in Fletcher’s case[ccclxxxii]66 in that the plaintiff apparently had the disposition of the whole of his salary — for he received in addition free board and lodging; and as the trial judge found, he was unlikely to have accepted in the future a job less remunerative than that available to him at Panguna. Again I am unable to see that an allowance in respect of domestic service considered necessary to cope with the plaintiff’s paralysis and immobilisation and to enable him to mitigate his damage by remaining in employment, would overlap an award for loss of amenities and enjoyment of life — surely a distinct and separate item.
While recognising with respect, the force of the remarks of Lord Denning and Lord Diplock as to the particular circumstances obtaining in Fletcher’s case[ccclxxxiii]67, I find myself drawn rather to those of Salmon LJ in the same case (p. 359) as being more appropriate to the facts of this case; where the Lord Justice says:
“I do not understand how the fact that they have destroyed his income, for which they must pay him compensation, can make any difference to their liability to compensate him for the expenses incurred by reason of their negligence ... If their negligence involves a plaintiff in an expense which he would not otherwise have incurred they must compensate him for it notwithstanding the fact that by maiming they may have curtailed some of his former extravagances.”
The trial judge here was alerted to the possibility of overlapping or duplication, and indicated that he endeavoured to avoid it. I do not find myself convinced that his method of compilation involved such an error, or that such an overlapping has been demonstrated here, as would justify the verdict being altered.
“GLOBAL” AWARD
No argument was addressed to the Court, that the mere size of the verdict was such as to indicate an unexpressed error of law on the part of the trial judge. For myself, I might not have arrived at such a high figure. But I do not think his Honour was disentitled to do so. I do not find his “global figure” so high as to amount to a highly erroneous estimate, or such that no reasonable tribunal could have found it. (Nance v. British Colombia Electric Railway Company Ltd.[ccclxxxiv]68. I would disallow the appeal.
RAINE J: In this appeal the defendant appeals against an award of damages for negligence in the sum of $149,926.00 in favour of the plaintiff, a man born on 2nd December, 1936. The accident out of which the claim arose occurred on 13th October, 1968, when the plaintiff was nearly thirty-two.
FACTS
His Honour the trial judge found that the accident was caused by the defendant’s negligence, and that the plaintiff suffered very serious injuries. That the plaintiff did so suffer is not contested. He was rendered a paraplegic.
The medical evidence indicates that this is a fairly typical paraplegic case, and the plaintiff has already suffered the sort of complaints and troubles associated with quadriplegia and paraplegia. He contracted a urinary tract infection, which seems to have been arrested. His left leg was severely burnt. Having no sensation in his legs he was not aware, when he entered a bath, that the water was boiling. He also had a typical bad pressure sore and this caused great trouble. In 1971 he had a period when he was mentally distressed, however, the evidence indicates that he is a fine person, and a trier, and he now seems to be very well adjusted. His evidence was taken on commission in Australia, so the trial judge never saw him, but the transcript gives no signs that he gave his evidence emotionally, in fact he seems to have been quite collected as far as I can judge.
A significant feature of the case is that the plaintiff was born in Spain, he is a Spaniard. He came to Australia in January, 1963, and is now a naturalized Australian. Although he plans a holiday in Spain after the case, and he had told his mother he would take one in 1969, which, of course, was rendered impossible because of the accident, he said he had no desire to live in Spain. I gather this was for political reasons. The plaintiff has no relatives in Australia, where he now lives. He is a single man.
At the moment the plaintiff lives at the Civilian Maimed and Limbless Association Hostel at Dulwich Hill. But it was part of his case, and the trial judge accepted it, that he wished to live on his own. Mr. Shand of Queen’s Counsel for the appellant demurred. He said it was unrealistic to allow a sum to cover domestic assistance, and another sum for house alterations to make the house usable by a man imprisoned in a wheelchair. The plaintiff rejects community life. Who can blame him? Continual contact with disabled people must be trying. There is no feeling of independence. I imagine that whilst inmates at the hostel ride on a light rein, that, nevertheless, there must be some rules. And food. I appreciate there is no evidence of this, but institutionalized food, in my experience, becomes very boring. The plaintiff has a driving licence, cars can be adjusted for his use. With a car, and domestic help, notwithstanding evidence to the contrary, (see Blanche Lindsay’s evidence at p. 76) it does not seem unreasonable to me that his Honour made allowances for the car, the house alterations and domestic help. I thought the allowances made were moderate, Mr. McAlary was inclined to think they were low.
It might well be that the plaintiff will find that running a house is too much for him, particularly if he works full-time. (See evidence of B. Lindsay at p. 77). However, if this is the case it might well be that a solution would be to invite an able-bodied Spanish friend to “live-in” in return for assistance rendered the plaintiff. With rentals so high I do not see it impossible for the plaintiff to get help from somebody, in return for accommodation.
OUT-OF-POCKETS
Out-of-pocket expenses were agreed in the sum of $12,926.00.
ECONOMIC LOSS
Economic loss to date of trial is usually rather easy to assess, except in the case of self-employed plaintiffs. But in this case Mr. Shand vigorously contests his Honour’s finding p. 118) that $30,000.00 was “a moderate estimate after allowing for the contingencies”. Senior counsel submits that the trial judge did not debit the plaintiff with the correct amount of unpaid holidays that the plaintiff undoubtedly took in between jobs. His Honour considered this matter (p. 118) and said, “It does not appear that the plaintiff took holidays much in excess of the time for which he was paid”, and debited the plaintiff with a total period of “four months unpaid holiday time”, in other words, four months when the plaintiff chose not to work. As I understand it, Mr. McAlary of Queen’s Counsel for the plaintiff does not complain about this, nor could he.
Mr. Shand says it should be thirty-two weeks unpaid holiday leave, his Honour says four months, which is seventeen weeks and about two days. On Mr. Shand’s figures in the calculation submitted to us the figure appropriate to be deducted for thirty-two weeks is $5,472.00. Applying senior counsel’s workings to a period of seventeen weeks it would be $2,907.00. I will add $25.00 for the additional two, or three days, and we have, on his Honour’s seventeen weeks (plus) a figure of $2,932.00. Thus there is a difference of about $2,540.00.
Mr. Shand worked on a basis of four weeks annual leave on pay, his Honour assumed seven weeks after the Snowy Mountains job, and at p. 118 concluded that nothing should be deducted there. Seven weeks leave is a finding based on premises that I cannot extract from the transcript. On the other hand I say the same as to Mr. Shand’s four weeks. But the plaintiff has the onus. However, his Honour did find that after the Snowy job the plaintiff went practically straight to a factory job, which might well reduce Mr. Shand’s thirty-two weeks total, even giving him the four weeks annual holidays he contends for, to twenty-eight. In such event the figure of $2,540.00 above is replaced by that of $3,322.00, and the difference is then down to $2,150.00.
If one accepted this then Mr. Shand’s calculations of loss, which I annex at the end of this judgment, rise to $26,857.00.
But Mr. Shand’s figures, like mine, are only figures. Figures are good servants, but notoriously bad masters.
But Mr. Shand further submits that the plaintiff should not have whatever figure is arrived at for pre-trial wage loss, or, at any rate, should not have much of it, because, if the note I made, and my recollections are correct, he relies on the judgment of Denning M.R. in Fletcher v. Autocar and Transporters Ltd.[ccclxxxv]69, as to pre-trial loss.
The facts relied on by Mr. Shand to found this submission are that the plaintiff was, Mr. Shand submits, an itinerant worker, here, in New Zealand, and in various places in New South Wales, and that he was unmarried. It is submitted that after doing a job of work, and very hard work, with long hours, for the period laid down in his contract, the plaintiff would down tools for long periods and take off with and spend all his hard earnt wages. Mr. Shand submits that it is obvious, and should be inferred, that the plaintiff was not thrifty, as he had not purchased the car he said he would like at the time of the hearing. Mr. Shand says the inference is that he had no money to do so.
I must say I am not particularly attracted by the picture senior counsel paints. It must be remembered that the period Mr. Shand suggests contains thirty-two weeks of suggested unpaid leave in between August 1965 and mid July 1968, when the plaintiff came to New Guinea. As I suggested above, it may well be that it is less than thirty-two weeks, possibly twenty-eight, possibly less. The trial judge says seventeen. The means of seventeen and thirty-two and twenty-eight are twenty-four and a half and twenty-two and a half weeks respectively. However, I refuse to become wedded to figures, but the range, so it seems, is between about twenty-two and thirty weeks.
But is this very surprising, the work is hard, the hours long. And, be it not forgotten that the plaintiff was only twenty-eight in August 1965 and nearly thirty-two in July 1968. He was seeing a part of the world he had never seen before. A large part of Mr. Shand’s unpaid leave period was spent on what was obviously a very special visit to South America, where people talk Spanish, which no doubt made the holiday the more attractive. It should be remembered that at least three or four weeks of this South American holiday would be paid leave.
I note that the trial judge, at p. 118, suggests that “even there, there is some evidence that he may have worked”. I cannot find evidence of this in the appeal book.
Mr. Shand relies on what Lord Denning said at pp. 336, 337, namely:
“There is, to my mind, a considerable risk of error in just adding up the items. It is the risk of over-lapping. I can best explain this by supposing that the plaintiff instead of being a married man was a bachelor aged 56, unlikely to marry, who earned £4,000 a year and spent it all on the pleasures of living in hotels and clubs and in recreations such as golf, fishing and shooting, without saving anything: but then suffered this accident and was taken into Cheadle Royal Infirmary for the rest of his days. In such a case: (i) it would be perfectly fair to give him the full costs of accommodation in Cheadle Royal, deducting a small proportion of it for board and lodging, as was done in Shearman v. Folland ([1950] 2 K.B. 43; 66 T.L.R. (Pt. 1) 853; [1950] 1 All E.R. 976, C.A.); (ii) it would be fair also to compensate him for the loss of ‘amenities’ because he could no longer enjoy the pleasures of living in hotels and clubs, and the recreations of golf, fishing and shooting. But (iii) I do not think it would be fair, over and above those items, to give him in addition his future salary in full with no deductions. I look at it in this way: If he had not been injured, he could not have enjoyed those pleasures and recreations without paying for them out of his salary. It follows that he should not be given compensation for being deprived of those pleasures and recreations unless account is taken of the fact that he would have had to pay for them. If no deduction were made from his salary, it would mean that he was being given compensation for his pleasure and recreations as if they were free and as if he was able to save all his salary except for his bare food and lodging, which is contrary to the fact. It would mean that he was being compensated on the basis that he was a man who would have saved every penny he earned and have died leaving a fortune. Whereas in point of fact he would have saved nothing and left nothing. He should not, therefore, be given his full loss of earnings. Shearman v. Folland ([1950] 2 K.B. 43) contains nothing to the contrary. There was there no loss of future earnings. The plaintiff had her own private means, like the millionaire in the example given in that case (ibid. 47). So the point did not arise. Another way of looking at it is to say that he should not be given both the full cost of accommodation at Cheadle Royal and also his full salary; for that again would mean that he would be saving his full salary and spending nothing. In any way there is an overlap if he is given his full salary without deductions.”
Unless I misunderstood him, and my note is equivocal, Mr. Shand submits that these remarks go to both pre-trial loss of earnings and future earnings.
Firstly, as to the submission that the case affects pre-trial loss of earnings. In my opinion it does not. The judgments of Lord Denning and Diplock LJ (as he then was), who formed the majority, both refer to the fact that the trial judge awarded a sum of £7,500 for loss of earnings to the date of the trial. At first I was puzzled that it was not more, because, in general terms it seems to have been accepted that the plaintiff, a professional man, in partnership, was earning £3,000 to £4,000 per annum net of tax. However, the matter is explained by Diplock LJ at p. 346, because the figure was obtained from the actual earnings of the partnership over the last two and a half years of the three year pre-trial period. And see last paragraph on p. 347. Apparently, as happens with all professional men, the net earnings were variable. The pre-trial earnings found by the trial judge were completely accepted by Lord Denning and Diplock LJ, and their Lordships did not moderate them at all.
I reject Mr. Shand’s submission insofar as it goes to pre-trial loss of earnings. I am fortified in doing so by my observation of the judgments of their Lordships to which I have referred. Their Lordships did not find it necessary to justify their leaving the trial judge’s estimate of pre-trial earnings severely alone. No doubt they regarded it as trite that the plaintiff must hold the sum, of £7,500. The fact is that the plaintiff they dealt with, and the plaintiff in the instant appeal, each lost, irretrievably, money that would, and could, but for the accident, have been earnt.
Secondly, as to future loss of earnings, even if I fully agree with the portion of the judgment of Lord Denning already quoted, it has to be applied with very great care. Mr. Diaz was a young man. He might well have reached a stage, after his projected holiday in Spain, where he had had a surfeit of travel. He was still quite young, he might have married, he might have decided to save up for a car, or a block of land. If so, he would not have been the first bachelor to start saving in his early, mid, or late thirties, after having seen the world and enjoyed himself. All the evidence points to this being on the cards with Mr. Diaz, he is a reserved person, conscientious almost to a fault, obviously intelligent, and obviously a hard worker. He was not a mere labourer, a peasant, he had received a fairly superior education. I might add that the plaintiff in Fletcher v. Autocar and Transporters Ltd.[ccclxxxvi]70 was aged just over fifty-six at the time of his accident. As Lord Denning said at p. 332, “He worked hard and he played hard ... He spent all he earned and saved nothing”. So there was a man of fifty-six whose life style was firmly established. Not so in the case of Mr. Diaz.
Thus, all in all, I feel that the trial judge made a not unreasonable estimate of net pre-trial loss of earnings. Possibly he was a couple of thousand dollars in excess of what some might regard as the highest permissible figure, but, for reasons that will become apparent, if this be the case it does not affect my ultimate conclusion.
GENERAL DAMAGES
I am of opinion that the award of $75,000.00 was within the permissible range, and I would not disturb it. It should be remembered that his Honour, deeming himself bound by the decision of the majority in The Administration of Papua New Guinea v. Carroll[ccclxxxvii]71 made “a further reduction in an otherwise appropriate award of non-economic general damages by reasons of the circumstances of this country ...”, although his Honour stated that he did not agree with Carrol’s case[ccclxxxviii]72.
To those in this country who have not kept in touch with Australian awards in the last two or three years such a sum might appear enormous. But in those years, and particularly in September last year, when his Honour gave judgment, as we all know, the Australian dollar took a tumble. Its purchasing power now diminishes daily. In New South Wales in recent years running down cases are heard by a judge sitting alone, thus reasons have to be given. Thus these increasing high awards cannot be blamed on the emotional or other defects of juries.
This is not to say I assess this plaintiff in the light of other awards. I do not. I merely make the observations in the preceding paragraph to explain why there has been an inevitable increase in verdicts. I fully appreciate that no two cases are alike, certainly never exactly alike.
I think there is another factor. Surgeons and physicians know a lot more about these tragically affected quadriplegics and paraplegics. There are now better places provided for their care. There are educated teams of therapists and the like who give them an interest in life. Thus, medically and mentally they are better off. They live longer. They have more to live for. This increases the damages. I think of Thurston v. Todd[ccclxxxix]73. I know a little about that case as I was junior counsel for the plaintiff, a quadriplegic. The plaintiff was nearly sixteen at the time of the accident. The defendant’s doctors were most gloomy about her life expectancy, but she is alive today, nearly twelve years later. What is more, she has, since the accident, obtained a University degree.
On 15th October, 1965, Asprey J, in his judgment, later upheld on appeal, awarded her the equivalent of $138,954.00. An exactly similar case heard today, nearly ten years later, could not fail to bring a verdict of at least $240,000.00 in Australia, possibly more. There have been at least two recent cases, involving quadriplegics, where the damages in my home State have exceeded $300,000.00.
As I have said, I believe that the trial judge’s estimate of $75,000.00 was within the permissible range, although obviously it would have been rather higher were it not for the arbitrary discount his Honour made, bound as he considered he was by the decision in Carroll’s case[cccxc]74.
OVERLAPPING
I think that this is a real danger in these cases. Probably some degree of overlap is inevitable. But the trial judge was not unaware of the problem.
THE DECISION IN CARROLL’S CASE RE LOCAL CONDITIONS
Although I have come to a pretty firm decision as to the amount of $75,000.00 estimated by the trial judge as covering general damages, I well appreciate how opinions can differ. Thus it is important to examine
CARROLL’S CASE[cccxci]75
With great respect to the judges who wrote the majority judgments in Carroll’s case[cccxcii]76, I cannot agree with them. What their Honours said in those judgments seems to me to overlook the principle that a tortfeasor must take the plaintiff as he finds him. It seems, with respect, to involve awarding damages, which, as best money can, restores the plaintiff to his former position, and then to take a quarter of it back again, because, by accident, he is here in this country.
It is not to be forgotten that the plaintiff had not been in Bougainville for long, he was working for what is largely an Australian company, and conditions at Panguna are, as we all know, similar to conditions at Gove and other similar places in Australia. The plaintiff had not settled in Papua New Guinea, these miners move, so it seems, from one great project to another. What. Minogue CJ said about the plaintiff in Carroll’s case[cccxciii]77 is true when applied to the plaintiff here, “he was in a partially transplanted Australian environment”. It should also be remembered that as a result of his injury he was necessarily removed from this country, firstly to be resuscitated, secondly because, as far as I know, this country has no centres like Stokes Mandeville in England or Perth or North Sydney in Australia, where quadriplegics and paraplegics can recover to the extent possible and be trained for their new life.
What compensation should be given is set out by Barwick CJ in Arthur Robinson (Grafton) Pty. Ltd. v. Carter[cccxciv]78, where his Honour said:—
“It is profitable, in my opinion, in approaching the question whether a verdict of a jury for personal injuries is unreasonably disproportionate to call to mind what the verdict should represent. It ought to be a fair and reasonable compensation for the injuries received. A fair compensation is, of course, less than the removal of the disabilities which the injuries to be compensated entail. It is compensation to the particular claimant, bearing in mind what he was, what he now is, and how he is likely to meet his disabilities. In this respect I agree with the views of the Supreme Court in Thurston v. Todd ((1966) 84 W.N. (Pt. 1) (N.S.W.) 231) which deny that there is any ‘conventional sum’ or conventional range upon which or within which the award of damages for particular classes of injuries should be confined. Comparisons with amounts awarded in other cases in near comparable or even in comparable circumstances ought not, in my opinion, to be used to achieve so called uniformity but merely used as an assistance in judging what in the community at or about the time the matter has to be decided is or has been regarded as fair: though even for this purpose I doubt that such comparisons have any great utility.
Doubtless, the exercise of judgment by each jury and by individual judges will not produce uniformity. This is not surprising and, in my view, need not be deplored. The facts and circumstances of each case vary infinitely — so often subtly. The application of judgment to them is, in my opinion, preferable to any attempt to apply a rule or to draw a conclusion or discover a norm from awards made in other circumstances.” (The emphasis is mine.)
And in Planet Fisheries Proprietary Limited v. La Rosa & Anor.[cccxcv]79 the High Court, in a joint judgment said:
“The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen.”
I cannot agree, with respect, with Frost SPJ (as he then was) when his Honour made the arbitrary discount that he did, and for the reasons that he gave in Carroll’s case[cccxcvi]80, his Honour said:
“The fact that the respondent has come to this country in which the great bulk of the population has a very much lower standard of living should, I consider, be reflected in a clearly discernible element of moderation in the award of damages to him by a Papua New Guinea court. This conclusion is supported by the growth of insurance which as in western countries now pervades this society. A court is entitled to have regard to the fact that ‘more often than not the burden for damage for negligence falls upon the insurance company’. Skelton v. Collins ((1966) 115 C.L.R. 94 at p. 128) per Windeyer J Thus judges have adverted to the interests of ‘the general body of premium paying policy holders’. Wise v. Kaye [1962] 1 Q.B. 638 at p. 670 per Diplock J; see also per Lord Devlin [1964] A.C. 348; Fletcher v. Autocar and Transporters [1968] 2 Q.B. 322 at pp. 335, 336 per Lord Denning. In Papua New Guinea there is to be considered not only the increase in premiums which must follow if awards are not kept to the level of fair but not full compensation, but also the fact that the same rate of premium is paid by all policy holders, indigenous and expatriate. Accordingly, to ensure that the awards of damages for Australian expatriates (and others in the same position) should be seen to bear quite distinctly the element of moderation the sums awarded should, in my opinion, be some degree less than the sum which would have been awarded in Australia. The proportion I have in mind is one-quarter to one-fifth.”
With respect, I see no good basis for the course taken by the majority of the Full Court in Carroll’s case[cccxcvii]81. Arbitrary discounts, in my respectful opinion, are impermissible. Thus, in Planet Fisheries Proprietary Limited v. La Rosa & Anor.[cccxcviii]82 the High Court rejected an argument that a norm or standard be sought for. See pp. 124, 125. And I think, although it is a long quotation, that there is much profit in reading what Sir Victor Windeyer said in Bresatz & Anor. v. Przibilla & Anor.[cccxcix]83. It is true that his Honour was dealing with loss of future earnings. But much of what the learned judge says applies here, and I quote:
“Turning then to the first head commonly called loss of future earnings — a common method of estimating the loss of prospective earnings is to take the annual earnings at the date of the accident and multiply this by the number of prospective working years lost. Then it is said ‘the resulting amount must then be scaled down by reason of two considerations, first that a lump sum is being given instead of the various sums over the years, and second that contingencies might have arisen to cut off the earnings before the period of disability would otherwise have come to its end’: Mayne & McGregor, Damages (1961) p. 767. The first of the two considerations mentioned does, of course, in every case demand that the product of the initial multiplication must be discounted at some assumed rate of interest to ascertain the present value of the notional future earnings. Nothing here turns upon the individual. This ‘scaling down’ is a mere process of arithmetic applicable to all cases and there are tables from which the result is readily ascertainable. But the second consideration is altogether different. It is a mistake to suppose that it necessarily involves a ‘scaling down’. What it involves depends, not on arithmetic, but on considering what the future might have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these ‘contingencies’, or the ‘vicissitudes of life’ as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. We were told that in South Australia it is a common practice to subtract twenty-five per cent ‘for contingencies’. Indeed counsel for the appellant, in the calculations he made in support of his claim for higher damages, conceded that this should be done. But he did not explain why. I know of no reason for assuming that everyone who is injured and rendered for a period unable to work would probably in any event have been for a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this assumption. Moreover, the generalization, that there must be a ‘scaling down’ for contingencies, seems mistaken. All “contingencies’ are not adverse: all ‘vicissitudes’ are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad.”
The next matter that bears mention is the reference by Frost SPJ, at p. 12 of Carroll’s case[cd]84, to the standard that should be applied. His Honour referred to H. West & Son Ltd. v. Shephard[cdi]85 and said “The standard to be applied is that the plaintiff is entitled to a fair compensation but not to the full amount of a perfect compensation”. There is, of course, authority for this statement, but it is one that should be treated carefully. I think that this merely enjoins judges and juries not to strain at unattainable perfection because the anxiety caused in searching for perfection for a man who has the deep sympathy of all may lead to injustice being done to the defendant. I suspect that a great many of these injunctions sprang from the humane but over-sympathetic approach of some judges and many jurors.
I now pass to another matter, where, I regret to say, I differ from the majority in Carroll’s case[cdii]86. I cannot see why the arbitrary discount applied by Frost SPJ should be applied only to pain and suffering and loss of amenities. Why then should it not be applied to future economic loss? I would have thought that if one head of damage were affected, then so too would be the other. I discussed this with Mr. Shand in argument, and he agreed that the proposition espoused by the majority in Carroll’s case[cdiii]87 extends to both heads of damage. I asked Mr. Shand whether it should extend to exactly quantified out-of-pocket expenses. Mr. Shand was, if I might say so, rather bland about this.
Thus, with great respect, I do not follow what the majority of the Full Court said in Carroll’s case[cdiv]88 as to the effect upon damages of local conditions here. The fact is that in the vast majority of cases here damages will be much lower than in Australia. The vast majority of plaintiffs will be local people, and a majority of such plaintiffs will be simple villagers, whose economic loss will be minimal. Whilst it is true that a very high proportion of adult Europeans have driver’s licences the proportion of Europeans to indigenes is so small that it is unlikely that a very great number of Europeans will be appearing as plaintiffs in the Supreme Court. Of course, there will be cases where, qua pain and suffering, a talented national will achieve a much higher award than many Europeans, for his loss, and sense of loss, will be the greater.
CONCLUSION
In my opinion the award made by the trial judge was within the permissible range, and should not be arbitrarily discounted, or disturbed at all.
In view of the reasons I have given above it is not necessary for me to consider a number of matters raised by counsel during argument, and in particular I refer to Mr. McAlary’s argument as to the failure on the part of the appellant to seek leave to argue pure questions of fact.
I would dismiss the appeal with costs.
Appeal dismissed with costs to be taxed.
Solicitors for the appellant (defendant): White, Reitano & Young.
Solicitors for the respondent (plaintiff): Craig Kirke & Wright.

[cccxviii]Infra p. 265.
[cccxix][1974] P.N.G.L.R. 265.
[cccxx][1974] P.N.G.L.R. 265.
[cccxxi][1968] 2 Q.B. 322.
[cccxxii](1970) 124 C.L.R. 192.
[cccxxiii][1974] P.N.G.L.R. 265.
[cccxxiv][1941] A.C. 157.
[cccxxv][1974] P.N.G.L.R. 265.
[cccxxvi][1968] 2 Q.B. 322, at p. 336.
[cccxxvii][1968] 2 Q.B. 322.
[cccxxviii](1940) 40 S.R. (N.S.W.) 126.
[cccxxix][1949] 1 All E.R. 21, at pp. 25, 26.
[cccxxx][1968] 2 Q.B. 322.
[cccxxxi][1974] P.N.G.L.R. 265.
[cccxxxii][1974] P.N.G.L.R. 265.
[cccxxxiii][1974] P.N.G.L.R. 265.
[cccxxxiv][1974] P.N.G.L.R. 265.
[cccxxxv][1974] P.N.G.L.R. 265.
[cccxxxvi][1974] P.N.G.L.R. 265.
[cccxxxvii](1968) 119 C.L.R. 118.
[cccxxxviii][1941] A.C. 157.
[cccxxxix](1966) 115 C.L.R. 94.
[cccxl][1968] 2 Q.B. 322.
[cccxli][1964] A.C. 326.
[cccxlii][1941] A.C. 157.
[cccxliii](1966) 115 C.L.R. 94.
[cccxliv][1964] A.C. 326.
[cccxlv][1962] 1 Q.B. 638.
[cccxlvi](1966) 115 C.L.R. 94.
[cccxlvii][1962] 1 Q.B. 638.
[cccxlviii][1964] A.C. 326.
[cccxlix](1966) 115 C.L.R. 94.
[cccl][1941] A.C. 157.
[cccli](1879) 4 Q.B.D. 406.
[ccclii](1873) L.R. 8 Exch. 221.
[cccliii][1964] A.C. 326.
[cccliv][1968] 2 Q.B. 322.
[ccclv][1968] 2 Q.B. 322.
[ccclvi](1966) 115 C.L.R. 94.
[ccclvii][1964] A.C. 326.
[ccclviii][1962] 1 Q.B. 638.
[ccclix][1968] 2 Q.B. 322, at p. 362.
[ccclx](1962) 108 C.L.R. 541.
[ccclxi][1974] P.N.G.L.R. 265, at p. 270.
[ccclxii](1966) 115 C.L.R. 94, at p. 135.
[ccclxiii][1968] 2 Q.B. 322, at p. 339.
[ccclxiv][1964] A.C. 326.
[ccclxv](1966) 115 C.L.R. 94.
[ccclxvi][1974] P.N.G.L.R. 265.
[ccclxvii][1964] 1 W.L.R. 1.
[ccclxviii][1964] A.C. 326.
[ccclxix](1873) L.R. 8 Exch. 211.
[ccclxx](1951) 84 C.L.R. 629.
[ccclxxi][1974] P.N.G.L.R. 265.
[ccclxxii][1964] A.C. 1129.
[ccclxxiii][1974] P.N.G.L.R. 265.
[ccclxxiv][1974] 2 W.L.R. 507.
[ccclxxv][1974] P.N.G.L.R. 265.
[ccclxxvi][1968] 2 Q.B. 322.
[ccclxxvii][1968] 2 Q.B. 322.
[ccclxxviii](1968) 122 C.L.R. 649, at p. 658.
[ccclxxix][1968] 2 Q.B. 322.
[ccclxxx][1968] 2 Q.B. 322.
[ccclxxxi][1968] 2 Q.B. 322.
[ccclxxxii][1968] 2 Q.B. 322.
[ccclxxxiii][1968] 2 Q.B. 322.
[ccclxxxiv][1951] A.C. 601.
[ccclxxxv][1968] 2 Q.B. 322.
[ccclxxxvi][1968] 2 Q.B. 322.
[ccclxxxvii][1974] P.N.G.L.R. 265.
[ccclxxxviii][1974] P.N.G.L.R. 265.
[ccclxxxix](1966) 84 W.N. (Pt. 1) (N.S.W.) 231 and (1965) 83 W.N. (Pt. 1) (N.S.W.) 335.
[cccxc][1974] P.N.G.L.R. 265.
[cccxci][1974] P.N.G.L.R. 265.
[cccxcii][1974] P.N.G.L.R. 265.
[cccxciii][1974] P.N.G.L.R. 265.
[cccxciv](1968) 122 C.L.R. 649, at pp. 656, 657.
[cccxcv](1968) 119 C.L.R. 118, at p. 125.
[cccxcvi][1974] P.N.G.L.R. 265, at p. 276.
[cccxcvii][1974] P.N.G.L.R. 265.
[cccxcviii](1968) 119 C.L.R. 118.
[cccxcix](1962) 108 C.L.R. 541, at pp. 543, 544.
[cd][1974] P.N.G.L.R. 265.
[cdi][1964] A.C. 326.
[cdii][1974] P.N.G.L.R. 265.
[cdiii][1974] P.N.G.L.R. 265.
[1974] P.N.G.L.R. 265.