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Kopele v Motor Vehicles Insurance (PNG) Trust [1983] PGNC 33; [1983] PNGLR 223; N447 (2 December 1983)

N447

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KOKO KOPELE

V

MOTOR VEHICLES INSURANCE (P.N.G.) TRUST
First Defendant

AND THE COMMISSIONER OF POLICE ROYAL PAPUA NEW GUINEA CONSTABULARY
Second Defendant

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani
McDermott J

8-11 November 1983
15 November 1983
2 December 1983

NEGLIGENCE - Road accident cases - Contributory negligence - Passenger injured - Passenger on overcrowded truck - Reckless and grave risk - Contribution assessed at 70 per cent.

NEGLIGENCE - Duty of care - Road accident cases - Apportionment of liability - Joint tortfeasors - Driver allowing truck to be overcrowded - Police firing tear gas.

DAMAGES - Personal injuries - Particular awards of general damages - Fractured femur - Permanent loss of mobility - Forced to give up employment - Male outdoor labourer aged 37 - Award of K12,000 general damages.

DAMAGES - Measure of - Personal injuries - Economic loss - Calculation of present value of future economic loss - Actuarial method adopted - Interest discount rate of 5 per cent appropriate - Notional tax disregarded.

The plaintiff a 37 year old male, married with one child, and employed as an outdoor labourer by the local council claimed damages for personal injuries suffered as the result of a fall from a motor vehicle in which he was a passenger. The principal injury suffered was a fractured neck of the right femur requiring three months hospitalisation and leaving the plaintiff with a permanent disability in restricted mobility and weight bearing. As a result of the injury the plaintiff was forced to give up his employment.

At the time of the accident the plaintiff was a passenger on or near the roof of an overcrowded truck which was proceeding peacefully and lawfully along the highway when it was caught in tear gas fired by police to disperse demonstrators. The plaintiff, on being overcome by the tear gas, fell from the vehicle.

Held

(1) The driver of the motor vehicle was partly liable for the plaintiffs injury in that in being in control of the motor vehicle he allowed it to be overcrowded with passengers so that the consequence of a passenger falling therefrom was within the recognizable risk created and in part sanctioned by him; his contribution to liability should be apportioned at 30 per cent.

The Government of Papua New Guinea v. Moini [1978] P.N.G.L.R. 184 at 190; and
Cuckow v. Polyester Reinforced Products Pty Ltd and Ors (1970) 19 F.L.R. 122, considered.

(2) The police were partly liable for the plaintiffs injury in that in allowing the vehicle to proceed in circumstances where it should have been halted passengers in the vehicle lawfully using the roadway were affected by teargas fired by them at demonstrators blocking another part of the highway: their contribution to liability should be apportioned at 70 per cent.

(3) The plaintiff was guilty of contributory negligence in sitting on the roof of a moving truck, and in view of the reckless and grave nature of the risk thereby created, his liability for negligence should be apportioned at 75 per cent.

(4) Damages for pain and suffering and loss of amenities should be assessed at K12,000.

(5) In calculating the present value of future economic loss the appropriate rate of interest should be taken at 5 per cent and the effect of notional tax disregarded.
Hassard v. Bougainville Copper Ltd [1981] P.N.G.L.R. 182, followed.
Todorovic v. Waller [1981] HCA 72; (1981) 56 A.L.JR. 59 at 78, considered.

Cases Cited

Anis Wambia v. Independent State of P.N.G. [1980] P.N.G.L.R. 567.
Browne v. Dunn (1893) 6 R. 67, H.L.
Cuckow v. Polyester Reinforced Products Pty Ltd (1970) 19 F.L.R. 122.
Cullen v. Trappell [1980] HCA 10; (1980) 146 C.L.R. 1; 54 A.L.JR. 295; 29 A.L.R. 1.
Cybula, John v. Nings Agencies Pty Ltd [1981] P.N.G.L.R. 120.
Hassard v. Bougainville Copper Ltd [1981] P.N.G.L.R. 182.
Jones v. Livox Quarries Ltd [1952] EWCA Civ 2; [1952] 2 Q.B. 608.
Kaka Kopun v. Independent State of P.N.G. [1980] P.N.G.L.R. 557.
Kokonas Kandapak v. Independent State of P.N.G. [1980] P.N.G.L.R. 573.
Kuruo Birim v. Jovane Mohamad and P.N.G. [1981] P.N.G.L.R. 545.
Lewis v. Independent State of P.N.G. [1980] P.N.G.L.R. 219.
North Shore Transport Company Ltd v. Oram [1945] n.z.l.r. 552.
Pennington v. Norris [1956] HCA 26; (1956) 96 C.L.R. 10; 30 A.L.J 242.
Sayers v. Harlow Urban District Council [1958] 1 W.L.R. 623; [1958] 2 All E.R. 342.
The Government of Papua New Guinea v. Moini [1978] P.N.G.L.R. 184.
The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 C.L.R. 39; (1948) 22 A.L.JR. 278; (1948) 2 A.L.R. 356.
The State v. Ogadi Minjipa [1977] P.N.G.L.R. 293.
The State v. Saka Varimo [1978] P.N.G.L.R. 62.
Todorovic v. Waller [1981] HCA 72; (1981) 56 A.L.JR. 59; 37 A.L.R. 481.
Traecey v. Churchill [1980] 1 N.S.W.R. 442.

Trial

This was an action in which the plaintiff sued to recover damages for personal injuries as a result of a motor vehicle accident.

Counsel

R. Tuscher, for the plaintiff.
I. Molloy, for the first defendant.
P. Migile and J Kanawe, for the second and third defendants.
Cur. adv. vult.

2 December 1983

MCDERMOTT J: The plaintiff claims damages from the defendants for injuries sustained in an alleged motor vehicle accident on 17 January 1980. He claims as a passenger in a vehicle insured by the first defendant and injured:

(a) through the negligence of the insured driver in the care and control of the vehicle and

(b) through the negligence of the second and third defendants in the firing of teargas which caused him to fall from the vehicle.

In pleading, the first defendant denied any negligence or alternatively that the plaintiff was contributorily negligent by sitting on or near the roof of the vehicle. Further, any injury suffered was caused solely or contributed to by the second and third defendants. These defendants in turn denied all allegations and at the trial, amended this defence with leave, to allege the plaintiff himself was contributorily negligent.

I mention these pleadings because at the trial, the evidence of the second and third defendants raised another matter altogether; that teargas was lawfully fired by police and the plaintiff, as a participant in an illegal demonstration which did not disperse when the "not act" was read, must inferentially suffer the consequences. The first intimation the court had of this was during the evidence of the last defence witness. That this was to be the case for the second and third defendants was not mentioned by counsel in his opening and no questions were directed to the plaintiff, the driver or another passenger, all of whom gave evidence about what had happened to them when the teargas was fired.

Two quite different descriptions of the events thus emerged. Briefly, for the plaintiff, it is one where he was a passenger in a vehicle proceeding down 3 Mile Hill in Port Moresby when it was enveloped in teargas which caused him to fall from the vehicle. The other description is that the plaintiff was a passenger in a vehicle at the head of a demonstration moving down the wrong side of the road and when after two orders for dispersal given by the senior police officer present were ignored, teargas was fired at the demonstrators in order to disperse them in an endeavour to maintain order.

Because of the conduct of the defence of the Police Commissioner and the State, these two descriptions were never brought together and tested against each other.

I am satisfied that the plaintiff was a passenger in a vehicle registered number ABJ780 driven by Doriga Iduhu and insured with the Motor Vehicles Insurance (P.N.G.) Trust pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295) in the month of January 1980. I cannot be sure of the date of the accident. The witnesses for the plaintiff are all uneducated, they say it was the 17 January whereas the police officers called say there was no demonstration on that day. They did not say what the exact date was. There is no record of a hospital admission or of sick leave being taken. Although a summons for production was issued for the Port Moresby General Hospital to produce hospital records relating to the plaintiff, it was neither answered nor pursued further. Because it is clear from the evidence of all witnesses that the same incident is being referred to, i.e. the day of a strike, the plaintiff being on strike, the call out of police for it and the presence of police on 3 Mile Hill, I infer that the accident took place in mid January 1980.

I find that the plaintiff at the material time, was seated with others on the roof of the cabin of the vehicle, a 2.5 ton truck with tray back. It is not a big truck, see Ex. 1. The driver says he did not know anyone was on the roof; he did not look either before he left the depot or at any other time. He did not check his passengers. I find the vehicle was overloaded with passengers.

I also find that the plaintiff suffered personal injuries, (a fractured neck of the right femur) when he fell from this vehicle on being overcome with teargas fired by members of the Royal Papua New Guinea Constabulary.

I set out in some detail the evidence leading to this fall. The plaintiff said:

"I got on the vehicle at 4 Mile and we drove down 3 Mile Hill and the police fired teargas and it affected my eyes and I fall off whilst the truck was going.

The truck was travelling slowly when the teargas was fired.

There was a strike on. The traffic was blocked that is why the police fired teargas."

In cross-examination by counsel for the State, the plaintiff was asked how far the police were from the vehicle and the following series of answers were given:

"Police vehicle was travelling from town up 3 Mile Hill. We were travelling down (indicates width of court room — thirty-five to forty feet).

Police were coming from where the road separated to YWCA. Instead of going the right way to Murray Barracks, they took the road to YWCA because the road was blocked with cars, trucks and rubbish.

When they fired teargas, I looked around and saw it was a police car."

The plaintiff was not shaken in his assertion that the teargas was the cause of his fall.
The driver said:

"There was a strike on that day and we travel down 3 Mile Hill towards Koki when police fired teargas at us which affected my eyes and I was a bit dizzy and it caused me to put on my brakes and go very slowly."

When asked:

"Q. What happened after teargas fired in relation to vehicles in front of and at the back of you? A. When teargas fired, vehicles in front kept going. I had to follow them all the way. Vehicles at back kept on going too."

He did not stop the vehicle until he arrived at Badili. In cross-examination by counsel for the Trust, he was asked:

"Q. Did you have any idea there would be teargas at 3 Mile Hill? A. When we travelled, we saw some police standing. I didn’t know there would be police standing ahead to fire teargas."

In answer to questions put by me, the driver said he was not told to stop or slow down by any police officer on 3 Mile Hill and he did not see the police stop any other vehicle coming down the hill when he did. The police said nothing to him before the teargas was fired. There was no further examination of these issues by counsel for the State.

The passenger Luka Tumai said:

"We drove out of the depot, went past Murray Barracks, then on to 3 Mile Hill where the police fired teargas and my brother was not the only one who fell off, but some ran away not injured. When police fired teargas, I jumped off the vehicle too. I saw my brother injured but I was scared of the police and ran away."

Under cross-examination by the State’s counsel, the following was said:

"Q. Did the police stop the vehicle at anytime between the YWCA and Badili? A. No, there were a lot of trucks full of people.

Q. From 4 Mile to the YWCA, did the police stop them? A. No, not stopped at any point until we saw police at 3 Mile Hill.

Q. You see who fired teargas? A. Yes, policeman."

For reasons which I cannot understand, counsel called three police mobile squad commanders who were not involved in the incident on the hill. However, it did emerge from the general evidence that no specific instructions have issued or general practice been adopted relating to the use of teargas where there is motor traffic in the vicinity. As well, the undesirability of using teargas amongst moving traffic was admitted as this could cause an accident.

Chief Superintendent Paul Tohian recalled a major incident, but not the date, which occurred on 3 Mile Hill when he, being in charge of an armed squad of police gave orders to fire teargas. He described a group of between fifty and sixty demonstrating people preceded by two trucks moving along the Hubert Murray Highway, from Taurama, past Murray Barracks and up to 3 Mile Hill on the wrong side of the road. He described the trucks as "big trucks. six wheels, appeared to be tipper trucks". He thought they were part of the demonstration. They were travelling very slowly. He described them thus:

"Overloaded, people hanging on the side, standing up, three or four on the bonnet of each truck where the engine is and also on the top of the roof where the drivers were".

He was in charge of police operations and with the armed squad under his direct command, followed the group from Taurama Foodland up through the cutting on the hill and when proceeding down the other side, gave the order to fire teargas after ordering the demonstrators to disperse. I am satisfied from his evidence that there was good reason to give the order; he acted reasonably in the circumstances.

He saw the people on the trucks jump and decamp after the firing. He says he previously ordered traffic to be diverted from 3 Mile Hill at both the Taurama traffic lights intersection and Scratchley Road intersection. He had unarmed general duty policemen at 3 Mile Hill before he arrived and had ordered others to come up from Badili.

Apart from the two vehicles in the demonstration, he did not see any other vehicles and when he was on the hill, did not see any other trucks go down the hill other than those in the demonstration. Over forty canisters of teargas were fired that day, the first at Waigani and later at Taurama and on the hill. It is not clear how many were fired at 3 Mile Hill. As this witness was in the thick of it, so to speak, he can’t say what happened elsewhere.

From the evidence, it is as though I have two unrelated incidents. From the Superintendent’s evidence, the obvious inference is that the plaintiff was in an unlawful demonstration and thus cannot make a claim for subsequent injuries suffered or is in a volenti non fit injuria situation which would also defeat his claim. On the other hand, the inference from the plaintiffs case is that he was affected by negligently fired teargas and fell from the vehicle lawfully using the public roadway at the time. Mrs Tuscher submits the Superintendent’s evidence carries little weight: Browne v. Dunn (1893) 6 R. 67, H.L. (reported in G. D. Nokes Cockles Cases and Statutes on Evidence (11th ed., 1970), at 265). The case has been approved of in this jurisdiction time and time again, see The State v. Ogadi Minjipa [1977] P.N.G.L.R. 293 and The State v. Saka Varimo [1978] P.N.G.L.R. 62. There are discrepancies in the opposing evidence; the positioning of the police, the description of the vehicles — (for example Ex. 1 does not conform with the superintendent’s description), participation in the demonstration, presence of other vehicles on 3 Mile Hill, the stopping of traffic, the place of the accident and general circumstances leading to it. Thus, on the balance of probabilities, I find that the accident happened after the insured vehicle which was proceeding peacefully and lawfully along the down lane from 3 Mile Hill was caught in teargas fired to disperse demonstrators who had previously blocked the up lane on 3 Mile Hill.

LIABILITY

With those facts, I now turn to the question of liability. Mrs Tuscher has quite correctly conceded that none of the particulars of negligence alleged against the driver can be sustained apart from the statutory requirements arising under Sch. 8 of the Motor Traffic Regulations. The driver carried passengers in excess of the permitted number and thereby breached reg. 145; is he liable in tort as a result?

His duty apart from the requirement to conform with a certain standard of conduct as a driver is specifically set by the Regulations and it is clear he was in breach of that duty. It is equally clear that the plaintiff suffered injury which is an essential ingredient to ground liability. There also has to be "a reasonable proximate connection between the defendant’s conduct and the resulting injury, usually referred to as the question of ‘remoteness of damage’ or proximate cause". See J G. Fleming, The Law of Torts (5th ed., 1977), at 105.

But a further consideration arises — there are two defendants, the driver and the teargas firing police. If I ask what caused the plaintiffs injury, the simplistic answer is teargas. However, the driver allowed the plaintiff to sit in a place fraught with danger and although the driver did nothing more directly, the plaintiff fell from this place and sustained injury when the teargas was fired.

In The Government of Papua New Guinea v. Moini [1978] P.N.G.L.R. 184 Prentice C.J, with whom the other members of the court agreed said at 190:

"It is necessary that the question (of causation) ... be considered separately from that relating to foreseeability, as the concepts of causality and foreseeability differ, and the term ‘reasonably foreseeable’ is not, in itself, a test of causation. (Chapman v. Hearse [1961] HCA 46; (1961) 106 C.L.R. 112). That a particular consequence may be foreseeable on the happening of an event, does not necessarily mean that it was caused by an earlier event. Because one event caused another it does not necessarily follow that the second event was a foreseeable consequence of the first. The judgment of Fox J in Cuckow v. Polyester Reinforced Products Pty Ltd and Ors (1970) 19 F.L.R. 122, and the judgments in the Court of Appeal in Quinn v. Burch Bros. (Builders) Ltd [1966] 2 Q.B. 370, though a contract case, illustrate the point. One does not proceed to consider the ambit of foreseeability unless one first decides that the particular piece of negligence in fact caused the damage in question Chapman v. Hearse."

The passive attitude of the driver contributed, if you like, to the plaintiffs fall. He allowed him to sit in a dangerous position. Any interference with the vehicle by others could further jeopardise the plaintiffs position. In dealing with the question of negligence when intervening acts or events occur, foreseeability becomes relevant because it (a) measures the duty of care, (b) determines whether the damage is too remote and (c) determines whether the act or event has broken the chain of causation. One foreseeability criterion answers all these matters.

As Fox J said in Cuckow v. Polyester Reinforced Products Pty Ltd and Ors, (1970) 19 F.L.R. 122 at 144:

"Causation and foreseeability are two different concepts, but the present question does not really fall to be decided within the bounds of either. The question of the effect of an intervening act only arises when there is causation, as that difficult term is understood in the law ... Foreseeability is highly relevant, and the fact that the intervening act was not foreseeable will ‘break the chain’ of responsibility, but the converse is not true. If however a duty of care is based on foreseeability of certain events, including the foreseeable acts of third parties, it seems idle to say that responsibility ceases because that event or that act occurs. The existence of the duty is itself predicated on the proposition that breach of the duty may, or will, lead to injury or damage such as that in question."

It appears to me that the first defendant’s negligence in over-loading alone would not otherwise have produced the fall but, he may nevertheless, be responsible so long as the eventuality of a fall was broadly within the risk created by him. Risk is an integral notion of negligence and the logical question is therefore to ask if the consequence can fairly be regarded as being within the recognizable risk created in part and sanctioned by the driver.

Mr Molloy in effect submits that I take a narrow view of the driver’s conduct — that he is only responsible for the direct and natural consequence of his breach of duty: see Sayers v. Harlow Urban District Council [1958] 1 W.L.R. 623 at 630. I think it misleading to rely on the assertion that "Carriers of passengers are not insurers of the safety of the persons whom they carry. Their obligation is to exercise due care towards their passengers and no more": North Shore Transport Company Ltd v. Oram [1945] NZGazLawRp 48; [1945] N.Z.L.R. 552 at 555, in order to escape liability. The driver’s prima facie duty is "to exercise common care and skill in the management of the vehicle and [he] is liable to the passenger if he is injured through a failure on the driver’s part to do so": see Dixon J, in The Insurance Commissioner v. Joyce [1948] HCA 17; (1948) 77 C.L.R. 39 at 55. Management, particularly on the facts before me, means more than just care and skill in driving, because the driver was in control of the vehicle and allowed it to be over-crowded with passengers. This is a relevant consideration generally in this country and particularly in this action. I therefore, conclude that the first defendant should be adjudged partly liable for the plaintiffs injury.

Because the vehicle was allowed to proceed in circumstances where it should have been halted, passengers in the vehicle lawfully using the roadway were affected by teargas fired by police at demonstrators unlawfully blocking another part of the same roadway. The plaintiff passenger was injured when he fell from the vehicle and as all this was foreseeable, it follows that as between the plaintiff and the police, their firing was negligent.

Contribution pursuant to s. 37(5) of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297) has been sought by the driver from the Police Commissioner and the State. The contribution has to be "such as is found by the court to be just and equitable, having regard to the extent of his responsibility for the damage ..." see s. 37(4) of the Act. As Lord Evershed M.R. said in relation to contributory negligence, in Sayers case: "In these matters the apportionment must be largely a question of, I will not say hazard, but at any rate of doing the best one can in fractions; ..." I consider the contribution between the first and second/third defendants to be 30:70.

From what I have said it is obvious that the plaintiff put himself in a dangerous position which in fact exposed him to the particular danger which came upon him. He ought not to have been there. As Denning L.J said in Jones v. Livox Quarries Ltd [1952] EWCA Civ 2; [1952] 2 Q.B. 608 at 615:

"A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless".

The plaintiff must thus bear his proper share of responsibility for the consequences of his actions and these depend on causation. One of the answers to whose fault caused the damage, is the plaintiff himself. He was at serious risk in sitting on the roof of a moving lorry. In apportioning responsibility the same "just and equitable" criteria as between joint tortfeasors applies, see Wrongs Act, s. 40(1). Responsibility is measured by the degree of departure from the standard of conduct exacted by the law rather than by moral blameworthiness: see Pennington v. Norris [1956] HCA 26; (1956) 96 C.L.R. 10 at 16.

Whilst I can find he breached no safety rule in the regulations (possibly because what he did is outside safety guidelines) I cannot consider his fault being a trivial inadvertence, rather more, it was reckless and the gravity of the risk created is of a high degree. I consider the apportionment between the plaintiff and the defendants to be 75:25.

In assessing damages I am hampered to some extent by the paucity of evidence. There is no claim for special damages so the assessment is for pain, suffering, loss of amenities and subsequent inability to continue in employment.

Exhibits "A" and "B" are respectively reports of Dr Mola who examined the plaintiff on 9 September 1982 and 31 October 1983. His final conclusion is: "As a result of the above problems with his right hip, Mr Kopele is required to use a walking stick to assist ambulation and as such he is not able nor fit for further employment which requires the normal use of his legs". This was further amplified in his evidence. The plaintiff was thought to be able to hobble about as an office cleaner but it was the doctor’s opinion that the plaintiff was not the sort of person to inflict pain on himself and use his injured leg to the limit. There has been improvement of the leg in the period between examinations and everyday activities by the plaintiff act as a form of physiotherapy which is a way of limiting the disability. The plaintiff now has moderate to severe osteoarthritis of the right hip which could be compounded by limited movement on the plaintiffs part. He walks with the aid of a stick.

I am not sure of the length of time the plaintiff was hospitalized. He says it was three months and this appears consistent with the injury. He returned to work as an office cleaner and resigned according to a resignation notice which is part of Ex. 2, "Reason: His own wish. Very very sick," Tony Sariman who witnessed the notice could throw no further light on the meaning of the sickness. It was suggested the resignation is not connected with the injury. On re-reading the evidence particularly the plaintiffs cross-examination:

"Q. Why did you resign from this job? A. I kept in the company but because of my leg injury I resigned.

Q. Why did you resign if you get paid for cleaning the office? A. I was very sick that is why I resign."

and considering the degree of unsophistication and awareness evidenced in the answers, coupled with the medical evidence, I am satisfied on the balance of probabilities that the plaintiff left work because of his accident-sustained disability. Likewise, I am satisfied that he had acted as well as could be expected in mitigating his damages.

I could not imagine the plaintiff falling without suffering abrasions and bruising. There is no evidence of the treatment he received in hospital but I assume he experienced pain and inconvenience for a time. He is left with permanent disabilities in restricted movement of the hip outwards, backwards, and external rotation. He is only able to bear about eighty per cent of his weight on his right leg. The plaintiff, now thirty-seven-years-old, is still relatively young, is married and has one child, thirteen-years-old.

I have been referred to a number of cases: Anis Wambia v. P.N.G. [1980] P.N.G.L.R. 567; Kaka Kopun v. P.N.G. [1980] P.N.G.L.R. 557; Kokonas Kandapak v. P.N.G. [1980] P.N.G.L.R. 573; Kuruo Birim v. Jovane Mohamad and P.N.G. [1981] P.N.G.L.R. 545, which show the general level of assessments under this heading. I award the sum of K12,000 for pain and suffering and loss of amenities of life.

The plaintiff had been employed as a council outdoor staff labourer since 1973 on a gross salary of K80.13 per fortnight at resignation. The tax rate on this sum would not be great and although it is impossible for me to work out a net figure from the information contained in Ex. 2, I conclude his net income would be of the order of K76 per fortnight. The only evidence of his projected working life is his statement "I work on till I was old". I have no idea of the retirement age of labourers. I can only do the best I can, bearing in mind the expectation of life in this country is somewhat less than in my own and people here tend to retire earlier. I am not prepared to find the plaintiff would have worked after he turned fifty years — a loss of fourteen years’ working life is the result. In the absence of specific submissions, I propose to assess future economic loss as a present day sum to reflect a loss of K38 per week for fourteen years at which time the sum will be exhausted. This method has long been adopted here rather than the "multiplier" method. Miles J in Kaka Kopun v. P.N.G. in assessing the sum invested it at seven per cent following the method he used in Lewis v. P.N.G. [1980] P.N.G.L.R. 219, but Andrew J in the same case invested the present day sum at six per cent.

In Australia where this method of assessment is widespread the rate of interest has varied: six per cent in Cullen v. Trappell [1980] HCA 10; (1980) 29 A.L.R. 1; four per cent in Traecey v. Churchill [1980] 1 N.S.W.R. 442 and now three per cent in Todorovic v. Waller [1981] HCA 72; (1982) 56 A.L.JR. 59. There are many considerations which were not put to me — accounting for notional taxation on the invested present day sum (Cullen’s case) or inflation and other cost adjustments (Todorovic’s case) in which the following authoritative statement is made by Gibbs C.J at 66:

"We consider that in future the courts in Australia, in States where the question is not governed by statute, should, in assessing damages, arrive at the present value of a future loss by discounting at a fixed rate which will be applied in all cases and which will in itself reflect the effect of notional tax on notional income from the invested fund. To take this course may seem to involve some sacrifice of accuracy in the interests of predictability, but the whole process involves so much speculation that it is impossible to pretend to accuracy. In fixing the discount rate, the fact that for so long the rates applied by the courts in Australia have been at a level of five per cent and above should not be disregarded. Some downward adjustment is necessary to take account of notional tax. The actuaries’ tables show that if the assumption is, as it must be, that the income is earned at the discount rate the necessary adjustment is quite small, particularly when the assumed income is within the range within which most employees’ incomes fall in Australia. Now that the effect of inflation has become more apparent, it seems right to make a further moderate downward adjustment to the rate. Our own choice would be to adopt a discount rate of four per cent, but all that we have said indicates how arbitrary any choice must be and for that reason it is necessary for individual members of the court to adjust their views in the interests of achieving a final and authoritative decision. We therefore concur in the view, to which we understand a majority of the Court is prepared to subscribe, that until this Court otherwise decides, a discount rate of three per cent should in future be applied and that no further allowance should be made for notional tax."

It seems to me that these are most relevant remarks for consideration in this jurisdiction. Alas I have not had the benefit of argument on them. The amount of weekly loss is small — it may very well be the fact that the plaintiff will not be assessed for taxation. Further, it is general knowledge (1984 budget) that the projected inflation rate is expected to run at nine per cent per annum. I therefore propose to use the five per cent years purchase tables which ignore the effect of income tax: see Parry’s Valuation and Conversion Tables 1972, at 30. In so doing I have arrived at the rate used by Miles J in Hassard v. Bougainville Copper Ltd [1981] P.N.G.L.R. 182. It should not be taken however that this matter is thereby conclusively determined in this jurisdiction. This gives an economic loss of K19,560 for the period. I must consider the vicissitudes of life and this amount will be discounted to K18,000.

The plaintiffs damages are therefore:

Pain, suffering, loss of amenities K12,000

Future economic loss 18,000

30,000

Less 75% 22,500

K7,500

Pursuant to The Judicial Proceedings (Interest on Debts and Damages) Act, (Ch. No. 52) I fix an interest rate of four per cent, see John Cybula v. Nings Agencies Pty Ltd [1981] P.N.G.L.R. 120, on the assessed damages from the date of the writ (26 August 1982) until judgment (2 December 1983). This sum amounts to K381.25.

Judgment for the plaintiff will therefore be K7,881.25 against the first defendant and the second/third defendants in the ratio of 30:70.

Judgment accordingly.

_____________

Lawyer for the plaintiff: Kirkes.
Lawyer for the first defendant: Young & Williams.
Lawyer for the second and third defendants: B. O. Emos, State Solicitor.