N435

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

AUNDAK KUPIL AND KAUKE KENSI

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Waigani
Bredmeyer J

14-17 March 1983
25 March 1983
20 October 1983

DAMAGES - Personal injuries - Negligence - Common law system appropriate to P.N.G. - Customary compensation - Enforceability - Value to be deducted from common law damages.

NEGLIGENCE - Road accident cases - Common law claim for damages not defeated by custom - Customary compensation - Enforceability - Value to be deducted from common law damages.

As to Customary Compensation (354-363).

Held

(1) The common law system of recoverability of damages for personal injuries arising out of the negligent use of a motor vehicle is not "inapplicable or inappropriate to the circumstances" of Papua New Guinea at this time.

(2) A custom as to compensation for motor vehicle accidents, (such as the Waghi custom) which provides for a claim for compensation by the victim and his clan against the driver and his clan which may be met in whole or in part by payment of cash, pigs and muruks, is not inconsistent with a constitutional law, the Customs Recognition Act (Ch. No. 19), any other statute or the general principles of humanity and is therefore, pursuant to the Constitution, Sch. 2.1, enforceable.

(3) A custom as to compensation for motor vehicle accidents (such as the Waghi custom) which provides for a sanction for non-payment of a claim for customary compensation, which is a killing of, or threat to kill, a member of the driver’s clan, offends against the Constitution, various statutes, and is repugnant to the general principles of humanity and is therefore unenforceable.

(4) In proceedings to recover damages for personal injuries arising out of the negligent use of a motor vehicle, where there is proof of a custom as to compensation for such accidents and where there is proof of payment in accordance with that custom, the total value of the customary compensation should, in the public interest, be deducted from the common law damages assessed.

EVIDENCE - Civil proceedings - Use of criminal conviction - Use permitted to establish facts - Evidence Act (Ch. No. 48).

As to evidence of criminal conviction (s. 47, 363-365).

Held

The rule in Hollington v. Hewthorn [1943] K.B. 587, that a plaintiff involved in civil proceedings arising out of the same facts as those involved in a criminal prosecution cannot adduce evidence of the conviction to establish those facts has been abolished by s. 47 of the Evidence Act (Ch. No. 48).

NEGLIGENCE - Road accident cases - Defences - Contributory negligence - Volenti non fit injuria - Defence of contributory negligence to be first applied to facts - "Fault".

NEGLIGENCE - Road accident cases - Contributory negligence - Passengers injured - Drunken driver situation - "Fault" - Carelessness for own safety in continuing to ride - Driver drinking en route - Wrongs (Miscellaneous Provisions) Act (Ch. No. 297), s. 40(1).

As to defences of contributory negligence and volenti non fit injuria (365-369).

Held

(1) In proceedings for damages for negligence where the defences of contributory negligence and volenti non fit injuria are raised together the statutory defence of contributory negligence must be applied to the facts before the common law defence of volenti non fit injuria.
Brown v. Motor Vehicles Insurance (P.N.G.) Trust [1980] P.N.G.L.R. 409 at 415, applied.

(2) Contributory negligence under s. 40(1) of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297) is based on "fault" which means a failure to take reasonable care for one’s own safety.

(3) A passenger in a motor vehicle who en route saw the driver (whom he knew to have been drinking but not to be affected by the drink), open a bottle of liquor and begin to drink therefrom, and did nothing about it, in circumstances where it was feasible that he did something such as getting out of the motor vehicle and walking, was careless in looking after his own safety and his damages ought to be reduced by 15 per cent.

Discussion of the defence of volenti non fit injuria.

DAMAGES - Measure of - Future economic loss - Medical needs - Personal injuries - Road accident cases - Paraplegic - Five year life expectancy - Lump sum inappropriate - Power to make periodic payments - Periodic payments necessary to do justice - Constitution, s. 155(4).

JUDGMENTS AND ORDERS - National Court - Order necessary to do justice in circumstances - Assessment of damages for personal injuries - Future economic loss - Medical needs - Paraplegic - Five year life expectancy - Lump sum inappropriate - Power to make periodic payments - Periodic payments necessary to do justice - Constitution, s. 155(4).

As to Periodic Payments (381-386).

In proceedings to recover damages for personal injuries as a result of a motor vehicle accident where both plaintiffs were rendered paraplegic with a life expectancy of five years.

Held

(1) The common law requirement that all parts of an award of damages for personal injuries should be contained in a lump sum was inapplicable and inappropriate to the circumstances of the country in this case.

(2) The court has power to make orders awarding damages by way of periodic payments for life, in lieu of a lump sum payment under s. 155(4) of the Constitution where it is "necessary to do justice in the circumstances of a particular case".

Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] P.N.G.L.R. 80; Premdas v. Independent State of P.N.G. [1979] P.N.G.L.R. 329; Avia Aihi v. The State [1981] P.N.G.L.R. 81; New Guinea Cocoa (Export) Co. Pty Ltd v. Basis Vedbaek [1980] P.N.G.L.R. 205; Dent v. Thomas Kavali [1981] P.N.G.L.R. 488 considered and applied.

INTEREST - Award of interest as damages - Time for claiming - Claim permitted at trial where no disadvantage - Same rate for pre-trial pain and suffering and economic loss - Interest allowed at 8 per cent.

As to Interest (386-390).

Held

(1) A claim for interest on damages awarded or to be awarded should be claimed in the writ or the pleadings:

Riches v. Westminster Bank Ltd [1943] 2 All E.R. 725, referred to.

(2) A claim for interest on damages awarded or to be awarded may with leave of the court be permitted at trial if the defendant is not disadvantaged by the lateness of the claim.

(3) A claim for interest on damages awarded for personal injuries should be allowed at the same rate for pre-trial pain and suffering as for pre-trial economic loss.
Pickett v. British Rail Engineering Ltd [1978] 3 W.L.R. 955 at 963, adopted and applied.
Cullen v. Trappell (1980) 54 A.L.JR. 295, considered.
Aspinall v. Government of P.N.G. [1980] P.N.G.L.R. 50, not followed.

(4) The rate of such interest should be applied at 8 per cent.

DAMAGES - Personal injuries - Particular awards of general damages - Paraplegic - Confined to waterbed - Not motivated for activity or use of wheelchair - Life expectancy five years - Villager aged thirty-five with three wives - Active involvement in family vegetable gardens and sale of timber - Driver - Award of K90,000 for pain and suffering - Periodic payment for future economic loss and medical needs.

The plaintiff Aundak, a National villager, aged about thirty five with three wives and six children claimed damages for personal injuries arising out of a motor vehicle accident. As a result of the injuries sustained including a major fracture and dislocation of the spine at T12-L1, Aundak was rendered a paraplegic, confined to a waterbed and with the continuing problems usual to that condition. After fifteen months in hospital he had returned to his village where he is cared for by his third wife. It was accepted that the likelihood of his ever using a wheelchair was, because of his poor motivation, willpower and initiative, very poor and that his life expectancy was in consequence five years. At the time of the accident Aundak was receiving income from the sale of firewood, and from a tradestore and contributed his labour to the activities run by his wives involving vegetables and pigs.

Held

(1) General damages should be assessed at K90,000.

(2) The plaintiffs economic loss arising from his inability to contribute his labour to the family activities and family projects should include an award sufficient to hire a labourer (at K15 per week taking into account the plaintiffs additional skills as a driver) to do the manual work that the plaintiff used to do.

(3) Damages for the nursing services provided voluntarily by the plaintiffs third wife should be assessed at K20 per week.
Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161, applied.

(4) Future economic loss and medical needs assessed after reduction for contributory negligence at K32.15 per week should be paid fortnightly for life.

DAMAGES - Personal injuries - Particular awards of general damages - Paraplegic - Life expectancy five years - Villager aged thirty with one wife - Active involvement in family vegetable gardens, coffee plots and sale of timber - Award of K75,000 for pain and suffering - Periodic payment for future economic loss and medical needs.

The plaintiff Kauke, a National villager aged thirty years with one wife and one child claimed damages for personal injuries arising out of a motor vehicle accident. As a result of the injuries including a fracture of the spine, Kauke was rendered a paraplegic. After nine months in hospital he had returned to his village and at the time of trial was not working and had not yet learned to use a wheelchair. At the time of the accident Kauke was involved in coffee production from two plots owned by him, sale of firewood, sale of vegetables and caring for pigs. The medical evidence supported a life expectancy for Kauke of five years.

Held

(1) General damages should be assessed at K75,000.

(2) The plaintiffs loss of labour input to the family vegetable gardens should be compensated by an award sufficient to hire a labourer at K10 per week to do the work that the plaintiff used to do.

(3) Damages for the nursing services voluntarily provided by the plaintiffs wife should be assessed at K20 per week.

Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161, applied.

(4) Damages for future economic loss and medical needs assessed at K50.12 per week should be paid fortnightly for life.

Cases Cited

Ashton v. Turner [1981] Q.B. 137; [1980] 3 W.L.R. 736; [1980] 3 All E.R. 870.
Aspinall v. Government of P.N.G. [1980] P.N.G.L.R. 50.
Avia Aihi v. The State [1981] P.N.G.L.R. 81.
Brown v. Motor Vehicles Insurance (P.N.G.) Trust [1980] P.N.G.L.R. 409.
Cullen v. Trappell (1980) 146 C.L.R. 1; (1980) 54 A.L.JR. 295; (1980) 29 A.L.R. 1.
Dann v. Hamilton [1939] 1 K.B. 509; [1939] 1 All E.R. 59.
Dent v. Thomas Kavali [1981] P.N.G.L.R. 488.
Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161; (1977) 51 A.L.JR. 792; (1977) 15 A.L.R. 387.
Hollington v. Hewthorn [1943] K.B. 587; [1943] 2 All E.R. 35.
Kerr v. Motor Vehicles Insurance (P.N.G.) Trust [1979] P.N.G.L.R. 251.
McIlkenny v. Chief Constable of the West Midlands [1980] Q.B. 283; [1980] 2 W.L.R. 689; [1980] 2 All E.R. 227.
Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] P.N.G.L.R. 80.
Meddie Serive v. The Independent State of P.N.G. [1981] P.N.G.L.R. 549.
Miliangos v. George Frank (Textiles) Ltd [1976] A.C. 443; [1975] 3 W.L.R. 758; [1975] 3 All E.R. 801.
Nettleship v. Weston [1971] 2 Q.B. 691; [1971] 3 W.L.R. 370; [1971] 3 All E.R. 581.
New Guinea Cocoa (Export) Co. Ltd v. Basis Vedbaek [1980] P.N.G.L.R. 205.
Nippon Yusen Kaisha v. Karageorgis [1975] 1 W.L.R. 1093; [1975] 3 All E.R. 282.
Pickett v. British Rail Engineering Ltd [1980] A.C. 136; [1978] 3 W.L.R. 955; [1979] 1 All E.R. 774.
Pinzger v. Bougainville Copper Ltd [1983] P.N.G.L.R. 436.
Practice Direction [1982] 3 All E.R. 1151.
Premdas v. Independent State of P.N.G. [1979] P.N.G.L.R. 329.
Pupu, Charles v. Pelis Tomilate and P.N.G. [1979] P.N.G.L.R. 108.
Riches v. Westminster Bank Ltd [1943] 2 All E.R. 725.
Roka Coffee Estate Pty Ltd v. Largo Gerebi [1973] P.N.G.L.R. 486.
Stupple v. Royal Insurance Company Ltd [1971] 1 Q.B. 50; [1971] 3 W.L.R. 217.
Tomkinson v. First Pennsylvania Banking and Trust Co. [1961] A.C. 1007; [1960] 2 W.L.R. 969; [1960] 2 All E.R. 332.

Action

This was the hearing of two actions for damages for personal injuries arising out of a motor vehicle accident as a result of which both plaintiffs were rendered paraplegics.

Counsel

C. Coady, for the plaintiffs.
A. Wohuinangu, for the defendant.
Cur. adv. vult.

20 October 1983.

BREDMEYER J: The two plaintiffs were injured in a motor vehicle accident at Minj on 20 August 1981. They were passengers in the back of a government vehicle which over-turned. Each plaintiff has been made a paraplegic. By consent the two actions have been heard together. The plaintiffs’ claim is that the driver Bernard Tai Kumai was negligent and that the State is vicariously liable for the negligence of its driver by s. 4 of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297). At the beginning of the trial before me counsel for the defendant amended the defence to admit that there was an accident, that Bernard Tai Kumai was the driver and the servant or agent of the defendant, and that the two plaintiffs were passengers in the vehicle. Negligence was denied and in addition two special defences were pleaded: the volenti non fit injuria defence that the plaintiffs knew that the driver had been drinking and that his competence to drive was thereby impaired and consented to, or voluntarily assumed, the risk of injury by getting in the vehicle; and that they were guilty of contributory negligence in that they accepted and failed to request the driver to stop or slow down. The volenti defence is a common law one; the contributory negligence defence is a statutory one conferred by s. 40 of the Wrongs (Miscellaneous Provisions) Act.

CUSTOMARY COMPENSATION PAID

Prior to the trial of these actions the driver Bernard Tai Kumai had been convicted of dangerous driving causing grievous bodily harm to the two plaintiffs. He pleaded not guilty but was convicted after a trial by Andrew J at Minj on 25 June 1982. Before being sentenced, the driver said that he had paid compensation to the injured men of eighty-seven pigs, four muruks (cassowaries) and K4,680 cash. He was ordered to enter into a recognizance in the sum of K200 to keep the peace and be of good behaviour for two years. The State thus knew in June 1982 that the driver had paid customary compensation to the plaintiffs yet in its defence, filed in each action on 8 November 1982, the State did not plead that the payment of customary compensation amounted to a complete defence under Sch. 2.2(1)(c) of the Constitution, nor as a reason for the reduction of any common law damages.

At the outset of the trial I invited counsel for the State to lead evidence on the customary compensation paid and address arguments on its legal effect and counsel for the State did so. Counsel for the plaintiffs did not object to this course despite the fact that the State made no attempt to amend its defence and I am pleased, in view of the constitutional importance given to custom, that he did not raise this objection. Evidence on custom and the customary compensation paid was led by the plaintiffs Aundak and Kauke, Aundak’s brother Mana Kupil, and a District Court magistrate Michael Timbi. All these witnesses were from the Minj area which is part of the Wahgi valley. They all spoke the same language and have the same customs. The magistrate Michael Timbi had been involved in the negotiations of customary compensation payments for road accidents among the Wahgi people and I accepted him as an expert.

In referring to the plaintiffs hereunder (and other witnesses) I will normally only use the person’s first name because the village people in the Highlands normally only use their given name. They do not have a surname in a European sense. If requested a person will give his father’s given name as a surname but it is not commonly used. To refer to the first plaintiff as Kupil or Mr Kupil would be misleading as it refers to his father.

The evidence on the compensation paid was clear cut and was not in dispute. The driver Bernard Tai and his line (meaning clan) paid K2,400 cash, forty pigs and two muruks to Aundak and his line and the same to Kauke and his line. The negotiations for compensation on Aundak’s behalf were conducted by his brother and a councillor. They demanded K10,000 and fifty pigs and, although not crystal clear from the evidence, I think they also demanded a specified number of muruks. The negotiations on Bernard Tai’s side were conducted by his clan brother Gabriel Waipek, a big man, the former Administrative Secretary of the Western Highlands Province and now a Public Service Commissioner. He told the plaintiffs negotiators that his line would only pay part of the compensation demanded because the "insurance" will pay you much more. It was put like this, "We will pay you liklik — K2,400 cash, forty pigs and two muruks — the insurance will pay you big money". The "insurance" here refers to the State as the vehicle covered, like all government vehicles, was uninsured. The compensation paid was accepted by the recipient on the basis that much more will be paid by the "insurance".

Aundak kept the K2,400 and the two muruks. He said all the forty pigs were distributed to his brothers, uncles and nephews (kanderes) and "house line". He got or kept none for himself or for his three wives or his children. The pigs were divided in this way by his brother and the councillor. Aundak said he was happy with the division. He said he was a young man and suffered very serious injuries. His clan cried for him and wanted to fight the driver’s clan, that is why his brother gave away all the pigs so that they could kamap wanbel. Five of the pigs received were big ones worth K200 or K300 each and some were little ones worth forty or fifty kina each. No evidence was given on the value of the muruks.

Kauke told a similar tale. He said he kept the K2,400 received but did not get any of the pigs or muruks: he said they were all distributed among his "wantoks". Neither he nor his wife got any of the pigs or muruks. When he returned home to his village from the hospital a party was prepared for him, nine pigs were killed for the occasion, but none of these were part of the forty-four pigs paid as compensation. They were his own pigs.

Michael Timbi gave useful evidence on customary compensation in the Wahgi valley. His evidence only relates to the situation where the victims and assailant are from Wahgi, as in the instant case. He said a road death in the Wahgi is like a death in a tribal fight: the victim’s line retaliate by fighting until they have killed someone unless they can negotiate compensation. If there is a death on both sides in a tribal fight compensation is paid to both sides. If compensation is to be paid instead of retaliation the victim’s clan nominate an amount and various big men and community leaders act as mediators in the negotiations. The amount claimed may be reduced to what the assailant’s clan can afford to pay. The compensation normally consists of cash, pigs, muruks, cattle and pig susu (large imported white-skinned pigs as distinct from local black pigs). The demand for a death can be as high as K20,000 cash, fifty pigs, five to ten muruks, one or two cattle, and one or two pig susu. After negotiations the money could be reduced to K10,000 but the pigs, muruks etc., would remain about the same. If a minority tribe has to pay the compensation that is a reason for reducing it. The death of a big man merits more compensation than the death of another man. Compensation is not paid for injuries received in tribal fights. Women are not killed in tribal fights so the question of paying compensation for a woman killed does not arise.

We said a road death is regarded as a death in a tribal fight, the compensation is the same. For a man killed in a road accident K10,000 plus pigs, muruks etc., as stated above is reasonable customary compensation. There are some differences however in compensation for road accidents. For example, women, of course, are killed in road accidents and lesser compensation is paid for them. A younger woman aged say twenty to thirty, who has not produced all her children yet, would be compensated by K5,000 and ten pigs; an older woman say aged over forty who has produced all her children, would get K2,000 and five to ten pigs. Another difference is that compensation is demanded for road injuries but not injuries received in a tribal fight. For example, Michael Timbi’s brother was injured in a road accident and received a broken leg. The driver was a fellow clansman and the compensation was readily agreed at K2,000 and ten pigs. There are rules about the size of the pigs; in this case it was three worth K600 each, two worth K200 each and five worth K100 each. The compensation was paid about a year after the accident which, he said, was the normal period. His brother also got K7,000 common law damages and kept both that sum and the customary compensation. The two were independent; no reduction was made in one for the other.

Timbi said that compensation for a road death or injury is not based on fault. The driver and his clan are held responsible even though not at fault. No reduction is made because the victim is wholly or partially at fault. He said if the victim is injured so that he cannot walk again the compensation requested is the same as for a road death. Thus in this case the compensation requested of K10,000, fifty pigs and two muruks for each plaintiff, was reasonable. If paid and the plaintiff later dies there will be no further claim. Compensation is paid to avoid the victim’s line fighting in retaliation for the death or injury; it is paid to improve relationships, if not paid the assailant’s or driver’s clan feel insecure. In this case, if the plaintiffs receive more from the defendant in this case than the K10,000 and fifty pigs originally demanded from the driver’s clan, they will not be required to repay back the K2,400 and forty-four pigs received to the driver’s clan. Timbi said that is their good luck; they can keep both kinds of compensation.

When the compensation is paid who gets it? The answers are found in the following questions and answers put to Timbi in cross examination.

"Q. Is customary compensation paid to all the relatives of the victim? A. Yes, if the victim is killed. If the victim is alive, compensation is paid. to him, and from him it is distributed out to his relatives.

Q. If the victim is seriously injured, is it not the case that the compensation paid is invariably scaled out to all his clan? A. The injured person gets one-half of it, three-eighths goes to his closest relatives and one-eighth to the other relatives.

Question by me. If you were told in this case that K2,400 and forty-four pigs were paid, that the cash went to the victim, but that all the pigs went to his relatives and none to him personally, what would you say? A. He would have kept some pigs for himself. If he gave them all away that is a bit unusual."

I referred the parties to a possible anthropologist witness, Dr Marie Reay, the world authority on the Wahgi people having studied and written on them since the 1950s. She was not called although she was at Minj a few days before this trial began. Her evidence would have been of great value but I do not blame counsel for not calling her. When an issue is not pleaded in a case but is argued as an afterthought I cannot expect counsel to be fully prepared. I am entitled under s. 2 of the Customs Recognition Act (Ch. No. 19) to refer to books and treatises on custom. I have therefore referred myself to Dr Reay’s article "Changing conventions of dispute settlement in the Minj area" in A. L. Epstein, Contention and Dispute (Canberra 1974). At 230 she states:

"[The ‘responsibility’ for a road death] is quite unrelated to the legal or moral culpability of the driver: in one case, the clansmen of a passenger whose hat blew off and who fell to his death when trying to retrieve it attempted vengeance against the clan of the driver. Thus, although a driver is held to be responsible for his passengers as traditionally a host clan was responsible for spectators at a fight, the score the two groups have to settle is really an imaginary one which provides a pretext to break the long ban on traditional warfare".

At 198 and 199 Dr Reay says that the aim of dispute settlement among the Minj-Wahgi people is to restore harmonious relationships. A dispute is settled if the participants give and accept any reparations (kumap in their language) which the dispute settlers decree in accordance with public opinion. Thus kumap can be paid for a death and when paid it makes it possible for people to resume ordinary friendly relations which have been interrupted by the hostility or grievance. However even with the payment of kumap the peace is not necessarily final but may close one of a series of incidents in a chronically snarled relationship, holding in check — if only for the time being — hostilities which can erupt again later.

At 198 she refers to a matter not touched on in the evidence of the plaintiffs or of Timbi. That is the difference between settling a dispute within a clan and between clans.

"Among the Minj-Wahgi people, the ultimate aim [of settling a dispute] was traditionally to restore order and guard against a further disruption of community life by eliminating legitimate grounds for grievance. To achieve this aim, a settlement had to be acceptable to all as kab ‘g’, a concept embracing but more flexible than our notion of justice. Thus, although the ultimate aim of dispute settlement was the restoration and maintenance of social order, the immediate and instrumental aim was the implementation of the abstract idea. Kab ‘g’ may be translated as ‘just’, ‘fair’, ‘equitable’, ‘reasonable’, ‘acceptable’, ‘adequate’, ‘right’, ‘appropriate’. Within the clan-community it means ‘just’ and ‘right’ in the abstract sense of being for the good of all. But in inter-clan relations it conveys this meaning only while members of both groups are present; behind the opponents’ backs, it has the narrower implication of what is good for the clan itself. The patriclan, the named corporate ‘group of men’ of widest span, constitutes the moral universe; considerations that constrain clansmen in their dealings with outsiders are those of expediency, not of morality. For example, equalising rules of exchange (reinforced by equalising rituals) set traditional limits on marriage, but any clan would break the rules if members saw a reasonable chance of getting away with stealing extra women or cheating to gain additional advantage."

The key sections of the Constitution are Schs 2.1, 2.2 and 2.4. Custom is itself defined in Sch. 1.2. On the evidence before me there is a custom in the Wahgi-Minj area as to compensation for a road accident. It is that if the victim and driver are from the Wahgi area compensation may be demanded by the victim and his clan. If the driver and his clan agree on the compensation demanded or some lesser figure and it is paid the dispute between the two groups is over at least temporarily. The compensation may be demanded although the driver was not at fault, and even though the victim was at fault in causing or contributing to the accident or his injuries. If the compensation is demanded and not paid the victim’s clan will fight the driver’s clan or a member of it and a member may be killed in retaliation. At the present time a reasonable demand for compensation for the death of a man or a man made a paraplegic in an accident is K10,000 cash, fifty pigs and several muruks, cattle and pig susu. This custom existed at the time of the accident in August 1981. Sch. 2.1 of the Constitution reads as follows:

"Sch. 2.1 Recognition etc. of Custom

(1) Subject to Subsections (2) and (3) custom is adopted, and shall be applied and enforced, as part of the underlying law.

(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.

(3) An Act of the Parliament may:

(a) provide for the proof and pleading of custom for any purpose; and

(b) regulate the manner in which, or the purposes for which, custom may be recognized, applied or enforced; and

(c) provide for the resolution of conflicts of custom."

Custom is itself defined in Sch. 1.2 of the Constitution as follows:

" ‘Custom’ means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial."

Schedule 2.1 being part of the Constitution is a superior law to a statute (see Constitution, s. 11) but by the express terms of Sch. 2.1(2) custom does not apply if it is inconsistent, inter alia, with a statute, and by Sch. 2.1(3) an Act of Parliament may provide for the matters set out in (a), (b) and (c) therein. Such an Act has been passed. It was the Native Customs (Recognition) Act 1963 adopted at Independence and is now the Customs Recognition Act (Ch. No. 19). It deals with all the matters set out in Sch. 2.1(3)(a), (b) and (c) and gives a limited role to custom. I quote from two sections:

"3. Recognition of Custom

(1) Subject to this Act, custom shall be recognized and enforced by, and may be pleaded in, all courts except so far as in a particular case or in a particular context:

(a) its recognition or enforcement would result, in the opinion of the court, in injustice or would not be in the public interest; or

(b) ...

5. Civil Cases

Subject to the Act and to any other law, custom may be taken into account in a case other than a criminal case only in relation to:

(a) ...

(g) a transaction that:

(i) the parties intended should be; or

(ii) justice requires should be,

regulated wholly by custom and not by law; or

(h) ...;

(i) ...;

or where the Court thinks that by not taking custom into account injustice will or may be done to a person".

I must now consider whether the Wahgi custom of compensation for road injuries should be applied and enforced in accordance with Sch. 2.1. The custom I have described is in two parts: there is the claim for compensation by the victim and his clan against the driver and his clan which may be met in whole or, as in this case, in part; then there is the sanction for non-payment which is a killing of, or threat to kill, a member of the driver’s clan. I consider that to enforce the first part of that custom is not inconsistent with a constitutional law, the Customs Recognition Act, any other statute, or the general principles of humanity. If the plaintiff sued the driver and his clan for the unpaid customary compensation of K7,600 and six pigs I would willingly enforce the custom. The second part of the Wahgi custom I have described, to enforce a demand for compensation following a road injury by the killing of, or a threat to kill, a member of the driver’s clan, offends against the Constitution, various statutes and is repugnant to the general principles of humanity. To retaliate in this way is contrary to the Constitution, s. 35, (the right to life) and s. 37(1) (the protection of the law). It is contrary to the Summary Offences Act 1977 and the Criminal Code (Ch. No. 262). It is no defence under those Acts to a charge of assault or murder for the defendant to claim he did the assault or killing in retaliation for the non-payment of compensation.

In this case, the plaintiff is not seeking from the court the application and enforcement of Wahgi custom under Sch. 2.1 of the Constitution. He is not suing for the unpaid customary compensation of K7,600 and six pigs. He has chosen, instead, to sue under the principles of common law, under Sch. 2.2 which reads as follows:

"Sch2.2 Adoption of a common law

(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that:

(a) they are inconsistent with a Constitutional Law or a statute; or

(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1.

(2) Subject to Subsection (1)(a), (b) and (c), the principles and rules adopted under Subsection (1) include principles and rules relating to the Royal Prerogative, except insofar as they provide for:

(a) a power to declare martial law; or

(b) a power to grant letters or denization or similar privileges; or

(c) a power to do any other act, provision for the doing of which is made by a Constitutional Law or an Act of the Parliament.

(3) The principles and rules of common law and equity are adopted as provided by Subsections (1) and (2) notwithstanding any revision of them by any statute of England that does not apply in the country by virtue of Section Sch. 2.6 (adoption of pre-Independence laws).

(4) In relation to any particular question before a court, the operation of Subsection (1)(b) shall be determined by reference, among other things, to the circumstances of the case, including the time and place of any relevant transaction, act or event."

Both custom and common law are part of the "underlying law" which is defined in Sch. 1.2 by reference to Sch. 2. That definition also refers to any Act of Parliament under s. 20(1) of the Constitution providing for the underlying law but to date no such Act has been passed. The common law of England provides damages for the tort of negligence and is based on fault. If the victim can prove that the driver was negligent then he can recover damages under various heads. The common law tort of negligence is not inconsistent with any Constitutional Law or any statute. Indeed it has been augmented by statute. Compulsory third party insurance was introduced in 1953 and is now regulated by the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295). No common law claim for damages can ever fail because the driver is unknown, or cannot be traced, dies, or has no money. The State is not bound by the Act and does not insure its vehicles under it, but by s. 4 of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297), it offers a similar kind of insurance to road accident victims. Indeed it is more generous in that the State’s "cover" is not limited to K100,000. Thus, for example, if a person is injured or killed by a government vehicle and the driver is negligent the State will pay the damages to an unlimited amount even though the driver was a public servant using the vehicle illegally for purposes of his own, or a thief who had stolen it.

Victims of road accidents have been obtaining common law damages for many many years in Papua New Guinea probably since the introduction of the motor vehicle. The Motor Vehicles Insurance (P.N.G.) Trust collects vast sums of money from third party insurance premiums. Numerous lawyers and clerks work full-time or part-time negotiating or litigating accident claims. Approximately 700 claims are made each year to the Trust — (Post-Courier 7 October 1983) and a lesser number to the government. There is a motor vehicle accident industry in Papua New Guinea. Numerous claims are made against the Trust and the government in the Highlands. Judges decide the more difficult cases which are then regarded as precedents or landmark decisions by which other similar cases can be settled out of court, and judges approve all settlements where one of the beneficiaries is an infant. This system has its drawbacks. A number of countries have opted for a no-fault system of compensation for motor vehicle injuries; others, like Papua New Guinea, have grafted a no-fault system onto the common law fault system, but the system of common law damages for injuries is so widely known and used in Papua New Guinea that I cannot say it is "inapplicable or inappropriate to the circumstances of the country" at this time.

As I have said custom under Sch. 2.1 and common law and equity under Sch. 2.2 together make up the underlying law. Custom is given the predominant role in that by Sch. 2.2 the common law and equity ... "shall be applied and enforced, as part of the underlying law, except if, and to the extent that:

"...;

(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1."

(Part 1 here refers to Sch. 2.1 Recognition of Custom, already quoted).

Mr Wohuinangu, counsel for the State, argued that the common law is inconsistent with custom, and that each plaintiff should be limited to the Wahgi customary compensation of K10,000, fifty pigs and two muruks. They should thus only be able to recover from the defendant the unpaid customary compensation of K7,600 and six pigs. He stressed the difference between the two systems of compensation — the common law one based on the fault of the driver and the customary one not dependent on fault. Mr Coady, counsel for the plaintiffs, argued that the customary compensation and common law damages are not inconsistent with one another, that they can exist side by side, and that each plaintiff should be able to keep both. He stressed the differences, that the customary compensation, or at least the forty-four pigs paid, were paid to the plaintiffs clan and not the plaintiff; that they were paid to the clan to prevent their members fighting the driver and his clan and not to compensate the plaintiff for his injuries. He argued that if I were to reduce the common law damages by the customary compensation paid it should be by K2,400 and two muruks only.

The common law of damages for the tort of negligence is a colonial legacy and in broad terms Sch. 2 of the Constitution aims at decolonising and "customising" the inherited law. But that broad aim is restricted by the precise words used in that Schedule and the Customs Recognition Act (Ch. No. 19). I consider that I should reject the State argument because to recognize and enforce customary compensation to the exclusion of common law damages "would result in an injustice" to the plaintiff and "would not be in the public interest" under s. 3(1)(a) of the Customs Recognition Act.

To take the first point, I consider that it is unjust if similar plaintiffs who suffer similar injuries should receive dissimilar awards of damages. The amount of damages they receive should not depend on the identity of the plaintiff or the identity of the vehicle driver. Let me illustrate. Assume that Aundak and a Tolai man of similar age, education, wealth, and business interests were similarly injured in the same accident. Assume further that each plaintiff can prove negligence on the part of the driver and is not guilty of contributory negligence, and that his common law damages would come to K100,000. It is unjust for Aundak to receive customary compensation of money, pigs and muruks worth about K14,000 because he belongs to a tribal group which demand and pay customary compensation when the Tolai, who does not belong to such a group, would receive K100,000 damages from the State. Similarly it is unjust that the amount of compensation should depend on the identity of the driver. Assume that Aundak and Kauke were both injured in separate road accidents at Minj and both made paraplegics and that Aundak was injured by a Wahgi man and that Kauke was injured by a visiting Frenchman driving a private vehicle. Assume further that Kauke’s line made no claim against the French driver either because he left the country, had no wantoks or they considered that no customary claim could be made against him. It is unjust for Aundak to recover only K14,000 worth for customary compensation, and for Kauke to recover K100,000 against the Trust.

Secondly to enforce custom to the total exclusion of common law damages "would not be in the public interest", in my opinion. As I have said, the common law method of compensation for road injuries has been in operation for many years in Papua New Guinea, probably sixty years or more; the Minj custom of customary road compensation is probably much more recent in origin although based on old precedents for tribal fighting deaths. Numerous claims for common law damages are made each year and many succeed. In this case, both plaintiffs were well aware of the common law remedy. Then, as I have said, the common law method of compensating for road injuries is greatly reinforced and bolstered by statute. Minj people who own private motor cars pay their third-party premiums so why should not Minj road accident victims recover from the Trust. Similarly Minj people pay their taxes to the State so why should they not recover against the State when they are injured by negligent government drivers.

Mr Coady for the plaintiffs has argued that each plaintiff should get both common law damages and customary compensation or, if I am against him there, common law damages less the customary compensation that each plaintiff actually received as distinct from the pigs which went direct to the victims’ clans. I agree that to recognize and apply custom in this way creates no injustice to the plaintiff. It is not unjust under s. 3 of the Customs Recognition Act that he gets two kinds of compensation but rather his good luck. Neither is it unjust to the defendant. The State is only paying once as the customary compensation is paid by the driver and/or his line. But I consider it not in the public interest under s. 3 of the Customs Recognition Act to recognize and enforce custom to allow the plaintiff to get both forms of compensation. I consider it more in the public interest that the plaintiff should get common law damages less the customary compensation. Customary compensation has its good or positive side which is in the public interest: it restores a broken relationship between two clans, it prevents a tribal fight, it assuages feelings of grief and anger, it compensates the clan for the loss of a member, the money stands in the place of the lost or injured member and can be used to buy a new wife, children, pigs or other wealth in his place. The payment itself, if mutually agreed upon, is in the public interest. But the bad or negative side of customary compensation is that it is enforced by murder or threat of murder which, as I have said previously, is contrary to at least two of the fundamental rights in the Constitution and to the Criminal Code. The Wahgi sanction to enforce customary compensation for a road death is definitely contrary to the public interest. Under Sch. 2.1 and the Customs Recognition Act a custom can be recognized and enforced by the courts; that is, the victim’s clan can sue for the compensation, but this is never done. The more direct sanction is more effective than a court case likely to be followed by a writ of execution which may be non-productive.

I consider it is in the public interest to allow common law damages less customary compensation and against the public interest to allow both to the plaintiff. I am not brash enough to think that my decision will immediately stop customary compensation payments for road deaths and injuries in the Wahgi and other Highlands areas. The reasons why customary compensation is demanded and paid are powerful ones and no court decision is likely to have any, or much, immediate effect. The Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act (Ch. No. 296), enacted in 1974 introduced quick, non-fault compensation for road deaths payable by the Trust in the case of a private vehicle and by the government in the case of a government vehicle. The compensation is limited to K2,000. The introduction of this law has in no way reduced the number of claims made by the clans of Highlands road-accident victims against the clans of the driver; nor it seems, the amount claimed. Whilst my decision is unlikely to have any immediate effect, if followed by other judges and by the State and the Trust in out of court settlements, it will, in the long term, discourage customary payments in situations where common law damages can be obtained, and that is, I believe, in the public interest.

I accept the evidence of Michael Timbi that by Wahgi custom if the victim lives the compensation is paid to him and distributed from him to his relatives. I consider therefore that all the pigs given in compensation for Aundak were paid to Aundak although he kept none of them personally, and that all the pigs and muruks given in compensation for Kauke were paid to Kauke although they all went to relatives. I will therefore deduct the total value of the compensation paid to each plaintiff from any common law damages awarded. On the evidence presented I find that the pigs and muruks paid for Aundak were worth:

5 pigs x K250 each = K1250 
39 pigs x K45 each = K1755 
2 muruks x say K50 each = K 100 
I find that the pigs and muruks paid for Kauke were worth:

5 pigs x K400 each = K2000 
39 pigs x K20 each = K780 
2 muruks x say K50 each = K 100 
So the total value of customary compensation received was:

Aundak Kauke 

Cash K2,400 Cash K2,400 
Pigs 3,005 Pigs 2,780 
Muruks 100 Muruks 100 
 K5,505  K5,280 

THE USE OF A CRIMINAL CONVICTION IN A CIVIL CASE

At the outset of the trial Mr Coady tendered by consent the police accident report. I had reservations about its admissibility but did not voice them at that time. At the conclusion of the trial however, when the court returned to Port Moresby to hear the addresses, I told counsel that I proposed to reject the tender on the basis that the policeman’s opinion of the cause of the accident and of the drunken condition of the driver was hearsay but that I was willing to adjourn so that the policeman or driver could be called to give evidence. No application for adjournment was made and I rejected the tender.

At the outset of the trial Mr Coady proposed to call evidence to prove the driver’s negligence on the assumption that Hollington v. Hewthorn [1943] K.B. 587 was good law in Papua New Guinea. I invited him to argue why that much-criticised decision should be slavishly followed in this country and referred him to McIlkenny v. Chief Constable [1980] 2 All E.R. 227 at 237 where Lord Denning M.R. said that beyond doubt Hollington v. Hewthorn was wrongly decided; it was done in ignorance of previous authorities and was done per incuriam. Mr Coady then addressed an argument to me along those lines and argued that I should rule Hollington v. Hewthorn inapplicable and inappropriate to the circumstances of Papua New Guinea. However it was not necessary to rule on that argument because Mr Wohuinangu helpfully referred me to s. 47 of the Evidence Act (Ch. No. 48) which abolishes the rule in Hollington v. Hewthorn. Section 47 in the Revised Laws is headed "Use of Convictions"; it was formerly s. 31 of the Evidence Act 1975 and it was there headed "Proof of convictions in civil proceedings" which is a better description of its ambit. Section 47 is substantially a copy of s. 11 of the Civil Evidence Act 1968 (U.K.) which is reproduced in Phipson on Evidence (11th ed.) par. 1399. The Court of Appeal considered the scope of that section in Stupple v. Royal Insurance Co. Ltd [1971] 1 Q.B. 50. In that case Lord Denning held at 72 that proof of the conviction in a later civil case not only shifted the burden of proof but was a weighty piece of evidence of itself.

I allowed Mr Coady to prove the conviction by producing the indictment and the National Court criminal file cover showing the result of the trial. I considered that admissible to show that "on 20 August 1981 Kumai Bernard Tai drove a motor vehicle dangerously and thereby caused grievous bodily harm to Audak Kupil (sic) and Kauge Kendi (sic)" — unless the contrary was proved by the defendant. In so doing I applied s. 47(3)(a). I should add that there was no issue in this case that "Kumai Bernard Tai", the person convicted of the offence, was the same person as Bernard Tai Kumai the person referred to in the pleadings; nor that the two victims named in the indictment were the plaintiffs in the actions before me.

I have found no local cases on s. 47 but I consider that it is possible in Papua New Guinea to make greater use of the section than can be made under the equivalent English section. This is because judges in Papua New Guinea, unlike juries, give reasons for a verdict of guilty and in so doing may make detailed findings of fact. In anticipation of this case I had asked my brother Andrew J to have his reasons typed and this was done and copies given to counsel. Mr Coady sought to tender the trial judge’s reasons as a judgment; he sought to tender them under s. 44 of the Evidence Act. I doubted if the reasons were a judgment and was not prepared to admit all the reasons. I distinguished between findings of fact found proved beyond reasonable doubt and other questions of fact which the trial judge discussed without making decisive findings. As an example of the latter I was not prepared to accept the following paragraph of Andrew J as proof of anything:

"I am satisfied that (the accused) has not been frank about how much he drank but nevertheless, on the evidence, I am unable to find if he was affected by alcohol and to what extent. The witnesses say he appeared normal — and I cannot say if his manner of driving was affected by his drinking."

I accepted the following three paragraphs as proof of the facts found therein "unless the contrary is proved", s. 47(3)(a).

"Clearly this was a very steep road and narrow. The accused was travelling downhill — the road was muddy and slippery and the accused had to negotiate a very sharp corner. There is evidence of a skid mark fifteen metres in length. I am satisfied that this was accurately recorded by Constable Taraito and that it was caused by the accused’s vehicle. I am satisfied that that is clearly evidence of speed — given these circumstances that is a downhill, steep road, muddy and slippery, and a very sharp bend.

I am satisfied that the accused drove at a speed which was too great in these special circumstances. This caused the vehicle to get out of control and eventually turn over which caused the injuries to the persons Audak Kupil and Kauge Kendi — which injuries clearly amount to grievous bodily harm.

Such a speed in those circumstances was in my opinion in a real sense and not speculatively so, potentially dangerous."

The defendant called no contrary evidence on these matters and I am therefore satisfied on the balance of probabilities that the defendant’s servant Bernard Tai Kumai drove the vehicle negligently on 20 August 1981 and thereby injured the two plaintiffs.

VOLENTI AND CONTRIBUTORY NEGLIGENCE

There is a conflict of evidence over whether one or both plaintiffs knew that the driver Tai was affected by liquor when he got into the car. It is a conflict which I must resolve. Aundak’s evidence to me was that on 20 August 1981 he had been at Kain with his third wife cleaning a coffee garden. In the afternoon he began to return to Gutnal. At the main Highlands Highway near a bridge at Gutnas he met Kauke his co-plaintiff and another man Kundup Toke who was with his two wives. Aundak saw a truck come along laden with sand. As it went over the bridge it dislodged some planks on it. Then he saw Tai come along driving a government vehicle. That was the first time Aundak had seen Tai that day. Aundak said that he had not been drinking and had not been at the Minj Hotel that day. Aundak said Tai got out of the car and accused Aundak of removing the planks on the bridge. He spoke angrily. Aundak said he only just came along. Kauke and Kundup replaced the planks on the bridge, Tai drove over it and offered them all a lift to MinJ It was about 5.00 p.m. or 5.30 p.m. Tai did not appear drunk or affected by liquor in any way. He appeared normal. In answer to an interrogatory he said he saw Tai take a bottle of beer from a carton in the cab and drink it. In his evidence before me he denied seeing any carton in the cab. Aundak got on the tray of the vehicle, together with Kauke, Kundup and the latter’s two wives — five in all. He said Tai drove and seated with him in front was Billy, a police clerk, and Nathan, a driver.

Tai drove some distance towards Minj, the car turned a bend to the right and then to the left and then turned over. He fell out and part of the car fell across his back and then rolled further on. Kauke gave a similar story to Aundak. He was at Gutnas when Tai’s car stopped. He related the same incident about the dislodged planks, replacing them and being offered a lift. He had not seen Aundak earlier that day; he met him close to the road. He had not seen Tai earlier that day. He did not think that Tai had been drinking beer. Kauke had not been drinking that day. He had not been at the Minj Hotel that day. He said that five of them accepted the lift and got in the back of the vehicle — the same five named by Aundak. He said Tai was speeding and he was frightened. He did not ask Tai to stop. Neither did Aundak sing out to Tai to stop. It was not raining at the time. The road was not greasy. Tai rolled the car, Kauke was thrown out the car rolled on top of him and crushed his back.

A third witness Kundup was called by the plaintiffs to give evidence of the same matters. He met Aundak and Kauke near the roadside and he met Tai at the bridge. He had not seen Aundak drink at a black market in the village. He related the incident of the moved planks. He said Tai appeared normal; he did not think he was drunk. The five of them got in the back. He was not frightened. Tai was not speeding. It was not raining. The road was a little winding. He did not see Tai drink beer in the car. Tai drove about 1 km when the accident occurred.

The defendant called one witness to refute this evidence, Frank Lewis. He had been a plant inspector with Works and Supply Mt Hagen and had investigated the accident on behalf of the government as a government vehicle and driver were involved. He said that some days after the accident he went to the Mt Hagen Hospital to get a statement from the victim of the accident. He was referred to a National man lying in a bed. He thought there was something wrong with his legs. A lot of people were around him. He asked for a statement from him. An unknown National, a friend of the patient, assisted in this task and wrote it down. The statement was given largely in Pidgin and partly in English. It was recorded in English by the helper. At the end of it, the statement was read over to the patient, he was asked if that was what he wanted to say and he said "Yes". He then signed it with a cross and Lewis signed it too. Lewis said he understood Pidgin at the time, but did not speak it. He said the statement is an accurate record of what the patient said. Lewis said he had no recollection of the face of the patient and would not recognize him if he saw him again. The statement was tendered and reads as follows (sic):

"Statements from Aundak Kupul — Villager

Last fortnight week Thursday I was drinking at Minj Hotel. While I was drink at the hotel I saw the O.I.C. Malaria Section at Minj with the paymaster drink in there too. That was around 9.00 a.m. I was drinking by myself at the hotel until 2.00 p.m. when the hotel closed.

When the hotel closed I took one of my wantok and we walked down to the main highway to a village to look for black market. We bought two cartons of beer and we were drinking under a bamboo. While we were there I saw the government vehicle driven by Tai Kumai going pass us.

It was raining around 4.00 p.m. or 5.00 p.m. so we went to house and we were drinking in there. At around 6.00 p.m. Tai Kumai came back with the government vehicle to where we were drinking and we drank together.

There were two young girls and he told them to go to the car and told us to jump on the government vehicle to take us back to MinJ We got on the vehicle. Two of us sat at the back trailer and four of them squeezed in the front seats.

When we were travelling a car and I thought he was going to give way to the other vehicle but we ran off the road. Both of us at the back were knocked off and we were thrown into the bush and the trailer of the vehicle fell on top of us and trapped us in.

Witness: F. E. Lewis
31.8.81 "

[His Honour then considered matters going to credibility based on the discrepancies in the evidence and continued:].

The key questions are: Was Tai affected by drink when he set out on the journey and did Aundak know that he was so affected? The evidence of Tai’s drinking before he commenced the journey which injured the plaintiffs comes entirely from the statement. Tai himself was not called to give evidence; nor were his two fellow passengers in the front seat both of whom were public servants. The policeman who investigated the accident was not called. Evidence was not led as to where Tai bought the two cartons said to have been with him in the cab or as to how much of that beer he had drunk. The evidence called by the State in the criminal trial on Tai’s drinking failed to convince Andrew J and no attempt has been made by the State before me to call all possible witnesses on this issue. The State bears the onus of proving the defences it raises on the civil standard. It relies solely on the statement for proof of Tai’s drinking before the journey started and on the admission that he was drinking one bottle in the cab whilst driving along.

I cannot conclude from this evidence that Tai was obviously affected by liquor when the journey began. Tai may have only had one drink in the hotel in the morning say 9.00 a.m. or 10.00 a.m. and only one beer in the house with Aundak at 6.00 p.m. I do not think I can infer on the balance of probabilities any more drinks than that. The effect of the sole morning drink probably would have worn off by 6.00 p.m. and the drink at 6.00 p.m. is unlikely to have affected his condition and his ability to drive to any great extent. I cannot conclude that Tai was affected by the drinks he had had at the hotel and black market when he commenced the journey. It was thus reasonably safe for Aundak to have entered the vehicle. When, however, on the journey, Aundak saw through the rear window of the cab Tai take a bottle of beer from a carton and drink, alarm bells should have rung in his mind for his own safety. The road was wet; it had been raining. It was dark. The road was winding and unsealed. Objectively he was driving dangerously. Tai was speeding and Aundak knew of Tai’s earlier drinking; he knew therefore the possible cumulative effect of one beer added to the others. Aundak was in the back sitting on the tray of a utility, with no canopy, no protection if the car overturned. Aundak was not a mere youth who might have thought it "fun" to travel in a car being driven dangerously. He was a mature man aged about 35, with three wives and six children. He was familiar with liquor. He drank liquor himself. He was a driver himself. He is not unintelligent. He must have known of the dangers of driving while drinking.

I follow the view I expressed in Brown v. Motor Vehicles Insurance (P.N.G.) Trust [1980] P.N.G.L.R. 409 at 415 and 417 that I must under the Constitution apply the statutory defence of contributory negligence to the facts before the common law defence of volenti non fit injuria and that the latter defence is only likely to succeed where the plaintiff is wholly to blame. I quote from s. 40(1) of the Wrongs (Miscellaneous Provisions) Act (Ch. No. 297) which was formerly s. 22 of the Law Reform (Miscellaneous Provisions)Act 1962:

"(1) Subject to Subsection (2), where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of the damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of it shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant’s share in the responsibility for the damage."

"Fault" in that section means a failure to take reasonable care for one’s own safety. I consider that Aundak was not at fault in that sense when he entered the vehicle because although he knew that Tai had been drinking Tai was not affected by the drink. But when en route, he saw Tai open a bottle and begin to drink from it, and did nothing about it, I consider he then became careless in looking after his own safety. In the circumstances of the road condition, Tai’s speed, Aundak’s unprotected position on the tray, etc., Aundak should have banged on the roof of the cab and asked Tai to stop. It was feasible to get off and walk. Aundak was not far from his village of Gutnal where he was going. He was not in enemy territory. It was early night. I consider it was safe for him to have walked. His situation differs from that of the passenger in Roka Coffe Estate Pty Ltd v. Largo Gerebi [1973] P.N.G.L.R. 486. In that case the passenger was a Papuan on the back of a coffee truck in the Highlands. He was going on a long journey and was probably afraid of getting off the vehicle and walking. I consider that Aundak was careless for his own safety in remaining on the back of the vehicle without endeavouring to get the driver to stop when he saw Tai drink from a bottle at the wheel. Tai had drunk much less than the driver in Brown’s case but the road was worse — in Brown’s case it was a sealed, flat, town road — and his position on the back of the vehicle was more dangerous than Brown’s position in the front of a sturdily built Land Cruiser. I consider it just and equitable that Aundak’s damages should be reduced by fifteen per cent.

The law on the volenti non fit injuria defence is stated by Asquith J in Dann v. Hamilton [1939] 1 K.B. 509 at 518:

"After much debate I have come to the conclusion that ... the plaintiff, by embarking in the car, or re-entering it, with knowledge that through drink the driver had materially reduced his capacity for driving safely, did not impliedly consent to, or absolve the driver from liability for any subsequent negligence on his part whereby she might suffer harm.

There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim ‘volenti non fit injuria’ would apply, for in the present case I find as a fact that the driver’s degree of intoxication fell short of this degree."

The defence of volenti rarely succeeds. It did not succeed in Roka Coffee Estate v. Largo Gerebi. It did not succeed in Dann v. Hamilton. There is no doubt that the plaintiff in Dann v. Hamilton would have been guilty of contributory negligence as academic commentators have said: 55 Law Quarterly Review, 184, 65 Law Quarterly Review, 20; but, surprisingly, that defence was not pleaded according to a post-judgment note supplied by the trial judge, 69 Law Quarterly Review, 317. The volenti defence now is rarely pleaded because it has little chance of success. In former times when contributory negligence was a complete defence to an action, the volenti defence was often pleaded almost as an alternative defence. Either defence defeated the action. Now that the defence of contributory negligence is not a complete defence but only a ground for reducing the damages, the defence is severely limited: see Lord Denning M.R. in Nettleship v. Weston [1971] 3 All E.R. 581 at 587. A rare example of the defence succeeding is found in Ashton v. Turner [1980] 3 All E.R. 870 which contains a good review of the English and Australian authorities. In that case the plaintiff was a passenger who was injured by the reckless, dangerous and drunken driving of the defendant. They were both burglars speeding away from the scene of the crime at the time of the accident. It was held that the plaintiff knew that the driver had been drinking heavily, the two were engaged in the intrinsically and obviously dangerous act of fleeing in a get-away car at the time the plaintiff was injured, and that therefore the maxim volenti non fit injuria applied and afforded a complete defence.

Although Aundak knew that Tai had been drinking, Tai was not visibly affected by drink when Aundak boarded the vehicle. Aundak did not know that Tai’s capacity to drive safely was materially reduced by drink. Aundak knew that Tai’s ability to drive safely was reduced when he began drinking while driving on the cab but Tai’s condition at that time, in my view, fell far short of that extreme or glaring degree of drunkenness that to continue on in the car was like meddling with an unexploded bomb. I consider the defence fails.

Both defences were pleaded in relation to the claim by the plaintiff Kauke but the facts in relation to Kauke are completely different. There is no reference in Aundak’s statement tendered by Lewis that Kauke was at the Minj Hotel or at the black market, and there is no other evidence that he was. Unlike Aundak, he did not say in answer to an interrogatory that he saw Tai drink a bottle of beer in the car and there is no other evidence on that point. Aundak’s admission in an affidavit is not binding on Kauke who is not his agent or privy. There is no evidence that Kauke knew at any time that Tai had been drinking or was affected by drink. Both defences to Kauke’s claim therefore fail.

PAIN AND SUFFERING AND LOSS OF AMENITIES — AUNDAK

Aundak suffered a major fracture and dislocation of his spine at the point where the thoracic spine joins the lumbar curvature (T12 — L1). There is a big bony protrusion at that point. He is paralyzed from that point down. His condition is permanent. It cannot be cured by an operation. He cannot move his legs. He has no control over his urine or faeces. He voids urine through a catheter tube into a bag. His bowels are evacuated manually by his third wife. Aundak is a married man aged about thirty-five with three wives and six children.

He lies all day on a water bed. He cannot sit up. He says when he tries to do so he feels faint and feels like vomiting. Dr Beavis explained why that is so. When a person lies down for a long time, the heart gets used to pumping blood horizontally, so to sit up suddenly causes a temporary loss of blood to the head causing a faint or faintness and/or nausea. The way to overcome that is gradually to incline the bed so that the patient sits up over a period of days.

Aundak says he is unable to use a wheelchair. He bought one and both doctors who gave evidence have seen him in a wheelchair. He says he feels great pain when he gets in it and always vomits; his back feels as if it will break completely. Dr Irwin thought he should be able to use a wheelchair but because of the instability of his back injury could not spend long periods in it.

Both Doctors Beavis and Irwin were agreed that the likelihood of Aundak using a wheelchair is poor because of his poor motivation, willpower and initiative. Likewise because of his poor motivation Dr Beavis doubted Aundak’s ability to benefit much from treatment at the Lae Spinal Unit. Dr Irwin said Aundak could make beads and bracelets but showed no interest in that sort of thing when he was under his care. Dr Beavis thought Aundak should go to Lae to have some treatment there — to "assess the situation" as he put it. Asked if he would recommend the patient go to Lae Dr Irwin felt unable to say. Dr Irwin said it was basically Aundak’s own wish to leave hospital and to live in the village; and he thought Aundak would be happier living in the village with his family around him rather than in a hospital. Aundak suffered from bed sores and says he has suffered from the same ones — or ones in the same places — since 1981. They have been treated with ointment and penicillin. The dressings are changed. I saw such dressings on him when he gave evidence before me.

Aundak can have no sexual relations. He has a greatly reduced life expectancy which is compensable and which I discuss under another heading. He suffered from infected bed sores in hospital and continues to do so. He had infected bed sores on his body when he appeared in court. He suffers from urinary tract infections.

The important recent decisions on pain and suffering and loss of amenities for paraplegics in Papua New Guinea are:

Pupu, Charles v. Pelis Tomilate and P.N.G. [1979] P.N.G.L.R. 108, (Saldanha J) K30,000 

Kerr v. Motor Vehicles Insurance (P.N.G.) Trust [1979] P.N.G.L.R. 251, (Supreme Court) K60,000 

Meddie Serive v. P.N.G. [1981] P.N.G.L.R. 549, (Pratt J) K45,000 

The most important of these decisions is that of Kerr because it was the only decision of the Supreme Court. The plaintiff in that case was awarded K35,000 by the trial judge for pain and suffering and loss of amenities and this was unanimously increased to K60,000 on appeal. The appeal decision was handed down in August 1979. With inflation at say 6 per cent per annum that K60,000 would now be worth K75,000. Kerr was twenty-six at the time of the accident. His injury was to the same part of spine as Aundak’s — at T12. After the accident he had an operation and steel rods were inserted in his back. This stabilised his back so that he was able to get into a wheelchair quickly and go back to work. He was only eight weeks in the spinal unit at Royal North Shore Hospital at Sydney. He was soon taught how to evacuate his bowels and bladder. He showers in a commode chair. He dries and dresses himself. He has a hand and electric wheelchair and drives himself to work in a car with hand controls. He uses a catheter bag permanently. He works full time at a clerical job in an office. Previously he had an outdoors job as a salesman. He went on a six-week overseas business and pleasure trip with his0 wife. The plaintiff in Kerr’s case had problems. For example he had suffered bladder infections but at the time of the trial had not suffered a urinary tract infection. He fell out of the wheelchair and injured his hip. He regularly suffered from accidents when the bladder bag burst. But it is quite obvious from this sketch I have given that Aundak’s suffering and disability is much worse than Kerr’s. Although Aundak did not suffer the pain and trauma of an operation he was in hospital for fifteen months. He cannot sit up, he cannot wash and dress himself. He cannot evacuate his own bowels. He cannot use a wheelchair or drive a car. He does not do any work not even of a therapeutic kind like making bead necklaces.

I compare Aundak’s condition with that Pupu who was awarded K30,000 for pain and suffering and loss of amenities at about the same time another trial judge awarded K35,000 to Kerr. The two awards were thus similar but Kerr appealed and received K60,000 on appeal. I believe that if Pupu had appealed he would have got a similar increase because his condition was similar to Kerr’s. Pupu’s fracture like that of Kerr and Aundak, was to the same high level of the spine. He also had two fractured ribs, a bad fracture of the right femur and a fracture of the right patella. He too had an operation to reduce the dislocation of the spine. Pupu was six months in Port Moresby General Hospital and six months in a spinal unit in Brisbane. He was taught how to use a wheelchair, how to empty his own bowels. He did exercises lifting himself up by his arms on a hook every half hour to avoid pressure sores. On return to Rabaul he was fully mobile in a wheelchair and employed as a class six mechanic repairing starter motors, generators etc. It was a full time job but his disability meant that he missed work about one day in four. I consider Pupu’s award of K30,000 for pain and suffering, etc., as no guide to me because I cannot reconcile it in my mind as adequate when compared to the K60,000 awarded to Kerr.

Later in these reasons I award K1,000 to each plaintiff so that they can attend the Spinal Unit in Lae and Aundak’s condition in the future may improve then. He may be taught to sit up, to use a wheelchair, to evacuate his bowels. But I am not very optimistic of that. The doctors say he has a very serious fracture because it is high up and because of the large bony protrusion. He is lowly motivated. He has not mastered the wheelchair nor sitting up after fifteen months in hospitals. Dr Irwin said that even when feeling good and free of infection his motivation to get up and use a wheelchair had waxed and waned. He did not have anywhere near the motivation of other paraplegics he has treated. Aundak’s pain and suffering and disabilities are much worse than Kerr’s and I award him K90,000 under this heading.

PAIN AND SUFFERING AND LOSS OF AMENITIES — KAUKE

Kauke is a village man aged about thirty married with one child. Not much evidence was given about his pain and suffering and disability. His own evidence and that of his wife was brief. Dr Irwin gave some evidence on him; Dr Beavis did not.

Dr Irwin said Kauke’s fracture of the spine was not as bad as Aundak’s fracture which was much more severe and at a much higher level. From my own observation, the bony protrusion at the break in Kauke’s spine is smaller than the protrusion in Aundak’s spine. Kauke had nine and a half months in hospitals nearly all of that time at the Nazarene Hospital Kudjip under Dr Irwin. Compare this to Aundak who had fifteen months in hospitals. Dr Irwin last saw him before March 1982, at that time he did not use a bladder bag but he did when I saw him in court. Dr Irwin had seen him in a wheelchair but Kauke denied that and does not own a wheelchair. He suffered in hospital from bed sores and I assume bladder infections (Dr Irwin could not recall) and I infer that he is likely to suffer from them on and off in the future. They are hazards of paraplegia. His wife evacuates his bowels manually and empties his bladder bags. Kauke says he feels pains in the upper part of his body which I accept.

Kauke’s fracture is less severe than Aundak’s and I believe his pain and sufferings and disabilities are less. Like Aundak he does not use a wheelchair but I am more hopeful that he will learn to use one in the Lae Hospital. If he does, he will be able to use it for longer periods than Aundak because his back is more stable. Kauke is better off than Aundak, but worse than Kerr in that he cannot yet use a wheelchair and he does not work. He cannot wash himself or evacuate his own bowels. Taking the Kerr award as a norm, adding to it to allow for inflation since then, and comparing him with Kerr and Aundak, I consider a fair and just award for his pain and suffering and loss of amenities is K75,000.

ECONOMIC LOSS — AUNDAK

Aundak in his statement of claim claimed economic loss under seven headings totalling K19,820 per annum. Particulars of the amounts claimed were given in the statement of claim. In addition, in answers to interrogatories sworn on 11 January 1983 Aundak estimated his total loss of income at K10,000 per annum. Two months later in March, he gave sworn evidence to me on those matters and some supporting witnesses were called. In general terms Aundak’s evidence to me failed to justify the amounts claimed in the answers and he was damaged in cross examination. In his final address to me Mr Coady concluded that the evidence was insufficient to convince me of loss under four of the seven headings. He asked me to find a final loss of income of K1,500 per annum.

(1) WAGES AS A DRIVER FOR WADAU COFFEE PTY LTD

Aundak claimed he was driving for Wadau Coffee Pty Ltd of Kudjip before the accident during the coffee buying season — eight months of the year — for wages of K40 net per week. Mr Coady, in his final argument, conceded that the claim had not been proved. I agree with that but I want to refer briefly to the evidence on this claim because I consider Aundak was lying in his evidence on this matter and that damages his credit on other issues. In chief he said he drove for Anna Brown at K40 per week net and did it for a year. He had to be prompted to recall the name of the company, Wadau Coffee. In cross examination he said he started this work in 1979, it lasted six months, one day he was K70 short, and he was sacked. In re-examination he was asked:

"Q. One month before the accident were you working for Wadau Coffee? A. No answer.

Q. Repeated. A. Yes."

At this point the plaintiff was in pain admittedly at that time but he gazed around before answering. I formed the impression that he was not sure how to answer but as his counsel asked the question, he eventually decided to answer yes.

Later in the re-examination he was asked:

"Q. Were you working for Wadau Coffee in 1981? A. Yes.

Q. You said you worked for Wadau Coffee in 1979? A. Yes.

Q. If your boss sacked you in 1979 how could you be working for Wadau Coffee in 1981? A. No answer.

Q. Is it true you were not working for Wadau Coffee in 1981? A. Hap mun tasol."

(He then said he was sacked by "Mr Jim" in 1979 because he was K70 down, he repaid the money and got his job back.)

"Q. If there was coffee to be bought did you work for Wadau Coffee? A. No answer.

Q. Repeated. A. Ating mi ken wok (meaning ‘I think (or perhaps) I would be allowed to work.’)"

Aundak’s older brother Mana Kupil gave clearer, more direct answers. He said his brother worked six months only for Wadau Coffee, was then sacked and did not get his job back. He could not say if he was sacked just before the accident or a long time before the accident.

I told Mr Coady that I was not satisfied with Aundak’s evidence that he was employed at the time of the accident or, if that was not in the coffee season, in the previous coffee season, and that he would need to call a witness from Wadau Coffee. After consulting with someone from that company Mr Coady told me that he would not be calling anyone from Wadau Coffee. I find this claim for loss unproved.

(2) PMV INCOME

In his answers to interrogatories Aundak claimed he owned a public motor vehicle which he drove on Saturdays and Sundays and gained an income of K70 net per week therefrom. He claimed in the pleadings that the vehicle had to be sold to pay for food and ongoing expenses. Aundak and his brother gave evidence on the pmv. In his final address Mr Coady argued that the past loss of pmv income was K50 per week gross before paying for repairs. Aundak said he bought the car new in 1975; it took ten or twelve passengers. He did not drive it for a year before the accident. He said his brother drove it when he drove the coffee truck. It went to the workshop one or two months before the accident for a new radiator. The workshop did not have one. His brother and sister contributed to the cost of the car. They painted the name of their dead father on the door. Aundak said it was registered in his name.

Aundak’s brother, Mana, said he and Aundak owned the car half each which, if accepted, would automatically halve the loss of income claimed. He said the car was in the workshop for a new water tank shortly before the accident. Later he said the car was in running condition at the time of the accident. Later when Aundak was in hospital Mana said: "we had no money so I sold the car". The car was in the workshop when sold. He did not know if it had been repaired or not when sold. Its registration had expired. He sold it to the mechanic for K300. He did not divide the money with Aundak.

On the evidence I am not satisfied that Aundak was the sole owner or that the car was in working order at the time of the accident. I do not consider that a 1975 car driven six years in the Minj area and worth K300 running as a pmv would produce any income after the payment of running expenses and repairs. This claim for damage fails.

Mr Coady in his final argument claimed K30 per week for future loss of pmv income. He said that in the past Aundak had been employed as a coffee buyer on his own account and further as a driver of a coffee buying truck and, having regard to his other business activities. I could find that the pmv would have been replaced by Aundak and his brother or brothers at a suitable time. He argued that they would have been able to raise the funds to do so as seen by their ability to sell pigs and provide a sum of money for Aundak’s hospital care. The reference to Aundak using his own truck to buy coffee is based on his evidence that prior to his job with Wadau Coffee, that is before 1979, he used his own truck to buy coffee on the roadside to sell to a company called Kina Toea. There is no skerrick of evidence before me that Aundak either alone or with his brother planned to buy a new vehicle and run it as a pmv, nor as to the likely profits that would result therefrom. I consider this claim unproved.

(3) FIREWOOD INCOME

Aundak in his answers to interrogatories claimed loss of income of K660 per annum from the sale of firewood to the Minj Hotel. Aundak in his evidence said when the Minj Hotel sang out for firewood he would go and cut some. He estimated that would occur say six times a year and he would sell about ten bundles at K4 each, an income of K240 per year. These kind of bundles of firewood are a common sight in the Highlands and they are split Casuarina (or Yar) logs about five feet long and require transport to move them any distance. I estimate that Aundak would need to spend K40 on transport either his own or the hire of transport. I therefore allow K200 per annum loss of income under this heading up until the date of judgment. I will allow no future loss of firewood income because in the verdict I have allowed a sum for the hire of a labourer, and after the verdict the hired labourer can cut firewood for sale as before.

(4) TRADESTORE INCOME

In the pleadings Aundak claimed he owned a tradestore at Gutnal village with gross sales of approximately K550 per week and net profit of approximately K120 per week and that the tradestore had to be closed because of the accident. In answers to interrogatories he said he conducted a tradestore business at Kain since 1975 which business netted him approximately K25 per week.

In his sworn evidence, Aundak said the tradestore at Kain was of bush materials. His wife looked after it. From other evidence I infer this was his second wife. He used to go to Minj to buy goods to stock it. Asked if he paid his wife for looking after the store he said he used to pay her parents with food and sometimes K6 or K8 when they asked for it or if there was a party.

What profit did he get out of it? Mr Coady says the evidence justifies a finding of K5 per week profit from the store. Aundak said in chief he used to get K80 or K90 profit money from the store every three months. In cross examination he said he would make K60, K80 or K100 profit per year. How did he know this? He said if mid-week he saw K4 or K5 in the store he would take it for food. (I think this means to spend it on food for himself or family.) But I am not convinced that that was necessarily profit money. He said if the money came to K80 or K100 he would buy stock to replenish the goods. He said he would sometimes take food from the store for his own use or to give it away if, for example, someone built a new house.

I do not think I should award any large sum to the plaintiff under this head. The store was at Kain and run by plaintiffs wife and her parents. Aundak did not live there, he used to visit. His contribution which was to go to Minj to buy goods to replenish the stock, was small. His income from the store was likewise small, an occasional K4 or K5 from the takings, occasionally eating some food from the store or giving some away. I believe the store closed after the accident for two reasons. One, as he stated, his wife used the takings and the stock to feed him and his guardians at the hospital. Secondly, I believe the fact that the vehicle broken down before the accident made it difficult for someone else, say Aundak’s brother Mana, to replenish the stock. I consider that the store did not close because of Aundak’s injury or incapacity. I consider its closure was temporary. On receipt of the interim award of K25,000 damages I gave on 24 June 1983 I consider the store could have been reopened. Some of that money could have been used to restock it. Aundak’s second wife and her parents could run it as before, and a new arrangement could be made for the purchase of goods to replenish the store. I will allow a tradestore loss of income of K4 per week for the date of the accident 20 August 1981 to the date of interim award 24 June 1983 only. This is 96 weeks x K4 = K384.

(5-7) COFFEE, VEGETABLE, AND PIG INCOME

In answer to interrogatories Aundak claimed K500 per annum loss of coffee income, K140 per annum loss of income from the sale of bananas, vegetables and peanuts, and K5,000 per annum loss of income from the sale of pigs. In his concluding address Mr Coady conceded that there was insufficient evidence to support a finding of a pre-judgment loss of income but that the plaintiff did contribute his labour to the activities and that he should be compensated by the hiring of a labourer to do the work he formerly did. I accept both these arguments. Aundak’s claim to show past loss of income failed for two reasons:

(1) He was unable to quantify the money earned from coffee, vegetables and pigs. He kept no records of sales and he never accumulated the money earned from any of these activities so that he could total it.

(2) These activities were locally run by his wives and were not much affected by his hospitalization and incapacity. To illustrate, the evidence is that his wives look after the coffee gardens, they sell the coffee beans, they grow and sell the vegetables and they care for the pigs but he controls the sale of the pigs. His first wife looks after a coffee plot at Bana near the highway, near MinJ His second wife looks after two plots at Kain and his third wife looks after one at Gutnal. As his third and youngest wife now nurses him that garden is tended by her mother. The wives grow the peanuts and vegetables and sell them. They keep the money but show it to him. Before the accident his first wife had two sows which produced litters of eight and seven, his second wife had four large pigs, his third wife had four pigs and three little ones. The wives cared for the pigs but he controlled the sale of them.

It is clear on the evidence that their activities were family activities. The plaintiff contributed his labour. He said he used to help his wife by digging a baret (a drainage ditch) or cutting the wood for a fence and then erecting a fence. Sometimes his wife’s line would help. For example his third wife’s mother looks after her coffee garden and the mother and brother help care for her pigs. Before the accident if he had food he would sometimes sing out for one of his wife’s relatives to come and dig a baret and he would feed them, and sometimes this has been done after the accident.

THE VALUE OF AUNDAK’S LOSS OF LABOUR

I am convinced that the answers are truthful and credible and that this picture of family activities and family projects probably applies to much of Papua New Guinea. There has been no loss of production. There has been a rearrangement of the producers. Aundak no longer contributes his labour neither does his third wife who is full time caring for him. Their places as producers have been taken by others. Aundak can no longer contribute his labour to their activities and is entitled to be compensated for that.

I accept the evidence of Peter Obngan a rural development officer, a Banz man who has worked some years as a rural development officer in the Minj area. He said that some Minj big men do employ labourers from outside such as from the Enga or Southern Highlands Provinces and he said the going wage was about K10 per week. I consider that I should award sufficient damages for Aundak to hire a labourer to do the manual work that he used to do. I consider I should allow a little more than the base rate because Aundak was more skilled than a labourer. He was also a driver. I allow K15 per week under this heading. From the date of accident to the date of verdict is 113 weeks x K15 = K1695.

ECONOMIC LOSS — KAUKE

In answers to interrogatories Kauke said he owned two coffee plots that used to produce an income of K900 net per annum. In his sworn evidence he said the same thing and that they had not produced since the accident and were badly overgrown. His brother and wife were called to support this evidence as was a rural development officer who had not seen the plots but working on the brother’s estimate of the size of the plots, thought the income would be a little over K900 per year. The plaintiff, his wife and brother were quizzed as to why no relative had tended his coffee plots after his injury. I thought it more in accordance with custom that relatives would tend the plots — as was done in Aundak’s case. But they answered the questions firmly, I thought they were telling the truth and I accept that his loss of coffee income is K900 per annum. For the pre-verdict period approximately two years two months the loss is K1,950.

In his final address Mr Coady claimed no past loss of pig income but claimed K300 per annum loss of future pig income. In answers to interrogatories Kauke said in the year preceding the accident he sold thirty pigs for a net profit of K1,500. In his oral evidence to me he said no such thing. Both he and his wife were unable to estimate their annual pig income. They both said before the accident they had fifteen pigs; they sold six at K100 each, spent the money on hospital expenses, and they killed and ate nine at a party on his return from hospital. They now have three pigs. I am not satisfied of any loss of pig income caused by his incapacity to look after them and I find this claim unproved.

Mr Coady in his final address claimed a loss of firewood income of K200 a year. Kauke, like Aundak, used to sell firewood occasionally to the Minj Hotel. I think the evidence supports this claim and I will allow it. For the reasons given in dealing with Aundak’s loss of firewood income, I will only allow it up until the date of judgment.

Mr Coady in his final address claimed a loss of income from the sale of vegetables of K100 per annum "notwithstanding that the evidence was not entirely satisfactory". This rider was due to the fact that Kauke’s wife, whom I thought a truthful witness, never kept a record of when she went to the market or of her sales. She said she went, "wan wan taim pasin belong ol kanaka". Nevertheless I consider K100 per annum a fair estimate of the loss of vegetable income. Since the accident she does not go to the market to sell vegetables as she cares for her husband. The gardens are now looked after by her mother. The evidence and the probabilities strongly support a finding that the K100 per annum income from the sale of vegetables was jointly earned by Kauke and his wife. I have been unable to find any authority for the proposition that a wife’s loss of income because she gives up her work and cares for her husband after an accident, is compensable. I will therefore allow loss of Kauke’s vegetable income of K50 per annum to the date of judgment (two years two months) = K108.33.

The evidence on Kauke is less clear than that in relation to Aundak but it is to the same effect that he has lost his labour input to the vegetable gardens, to cutting firewood and the care of pigs. I accept the evidence of Peter Obngan, the rural development officer, that rich Minj men do employ foreign labourers at the modest rate of K10 per week. That squares with my own experience where Tolais in the Gazelle Peninsula frequently employ Highland labourers. I will allow for the cost of one labourer from the date of the accident. This will mean that the labourer will be able to do the work which formerly Kauke did. He will be able to work in the vegetable gardens; he will be able to go with Kauke’s brother and cut firewood for sale; he will be able to dig a baret, cut wood for a fence and erect a fence to protect the gardens from pigs. The cost of this labourer is in addition to the K900 a year I have allowed for loss of coffee income because the rural development officer’s evidence is clear that the work of rehabilitating the abandoned and overgrown coffee would be very onerous and time consuming. There is no way that one labourer could rehabilitate it. The cost of hiring a labourer from the date of the accident to the date of verdict 113 weeks x K10 per week = K1,130.

EXPECTATION OF LIFE

Dr David Beavis has been the Medical Superintendent of Mt Hagen General Hospital for nine and a half years. He considers that a paraplegic has a life span of five years after his paraplegia in Papua New Guinea. It is an informed opinion. He has known ten or twelve paraplegics. He knew one who lived a bit longer but said that was not normal. They are prone to get infected bed sores, and Ameloid disease from urinary tract infection or other chronic infection which leads to kidney failure. He knew of the spinal unit in Lae but had not seen it. He said he had a cynical attitude to paraplegia. He regarded it as a death sentence, like cancer. There is a lack of good nursing treatment. If Aundak was a patient in his hospital he could not say that he would live more than five years. Patients often prefer to live in the village, or their relatives prefer to have them in the village, instead of in hospital for long periods. He said the hospital switchboard operator was paralysed but had control of his bowel and urine functions. He developed bed sores on his buttocks. Influential relatives sent him to Australia for treatment. The doctors there found Ameloid disease and sent him home to die.

Dr Beavis had both plaintiffs in his hospital and recalls Aundak well. He thought it a bit unlikely that he would get into a wheelchair. He saw him once or twice in a wheelchair (as also did Dr Irwin). Aundak lacks the incentive and will power. He said it would take a terrific amount of work to rehabilitate him. He said the important thing with paraplegics is to get them from the moment of injury and teach them to use their muscles. It is clear on the evidence before me, including my inspection of his arms, that this was not done.

Dr Glen Irwin is an American doctor who has worked at the Nazarene Hospital Kudjip since 1968. He knows both plaintiffs. He was unable to say what the life span of a paraplegic was. He said it depended on the individual a lot and on the amount of health problems. Urinary tract infections and bed sores are the greatest danger to life. He was asked if he would recommend full time medical treatment for the plaintiffs assuming that they could afford it. He said Yes but he would expect them to refuse it, they would prefer to be in their village not in hospital. He did not think it would be possible to get a trained nursing aid to look after them fulltime. He said there are not many around, and they would prefer to work in a hospital. He said primarily it was Aundak’s wish to leave the hospital because he felt happier with his family around him. Aundak’s wife has been trained by the hospital to attend to many of his bodily needs. He would recommend that Kauke stay in the village. He thought it unlikely that Aundak would ever be able to spend long periods in a wheelchair because of his injury and of the instability of his back.

I accept Dr Beavis’s general opinion that paraplegics have a life expectancy of five years in Papua New Guinea and I believe all the evidence puts these two plaintiffs in that general category. Aundak has a very serious fracture because of its high level and the big bony protrusion. He cannot sit up; he owns a wheelchair but does not use it. His arm muscles are wasted. He does not string beads or do anything creative with his hands. He lives now in the village because he wants to be there. He is cared for by his wife and gets medical assistance free from the medical orderly at Minj who can walk to his house. This consists of the supply of new catheters, urinary bags, and changing the dressings on his bed sores. I am going to allow him money to go to the spinal unit at Lae if he wants to but his chances of being able to use a wheelchair and sit up are not good. He is poorly motivated.

Both doctors agree that Kauke has a less serious fracture. He says he lies down all day on his waterbed. I forgot to ask whether he sits up. He does not own or use a wheelchair — although Dr Irwin recalls seeing him in one at Kudjip Hospital. Kauke had bed sores in hospital. Kauke was not asked if he had had urinary tract infections and Dr Irwin could not recall, but I infer that he, like most paraplegics, is prone to such infections.

Mr Coady asked me to calculate future economic loss and future medical and nursing expenses on the assumption that each plaintiff will attain the age of sixty-two years. I estimate Aundak’s age at thirty-five years and Kauke’s age at thirty years. Mr Coady argued from the medical evidence that if proper medical and nursing care is provided to the plaintiffs then they should have the normal life span of a paraplegic in a western society. Dr Irwin said that a paraplegic in a western society does not have the same life span of a normal person. Dr Beavis did not know the life span of a paraplegic in Australia but thought that with the better medical facilities and constant care they could have a pretty normal life span.

Mr Coady argued from the doctor’s evidence firstly, that with proper medical care both plaintiffs would have the same life expectancy as a paraplegic in a western country which I take to be not much less than a normal life span and, secondly, that the damages should be sufficient to provide that proper medical care. I agree with the second argument. But I do not think the medical evidence supports the first argument. Dr Beavis’s evidence is really to the effect that even as an inpatient in his hospital, he could not say that Aundak would live beyond the five-year span. There has been no countering evidence, say from a doctor from the spinal unit at Lae, to say that with the treatment given there a paraplegic can live ten or fifteen years or a normal life span. I infer from Dr Beavis’s view that in his experience, at home or in hospital, a paraplegic is unlikely to live beyond five years. Then I have to consider the plaintiffs’ likely response to future treatment and what their wishes are. Neither plaintiff gave evidence on these matters. They were not asked if they were willing to be hospitalized for the rest of their lives or periodically in Mt Hagen, Kudjip, Lae, or overseas. But I know that they have not responded particularly well to the lengthy periods they have spent in the general hospitals at Mt Hagen and Kudjip. Neither used a wheelchair. Aundak cannot sit up or half sit up in bed. He showed no interest in occupational therapy. It was Aundak’s wish to leave hospital and live at home. They are village men, family men and men from an area where clan ties are strong. I infer from all the evidence that it would be their wish to spend most of their lives at home in the villages but that they would be willing to spend periods of time in hospital in this country for necessary treatment but that they would not be willing to spend the whole of their remaining lives in hospital unless absolutely necessary.

No one can really place a value on a reduced life expectancy. A millionaire would no doubt give away his fortune to be allowed to live longer. That is why the courts in common law countries have fixed the loss of expectation of life as a set sum. In Papua New Guinea, the set sum is K1,500 (Kerr v. Motor Vehicles (Insurance) P.N.G. Trust [1979] P.N.G.L.R. 251 at 264) and I award that sum to each plaintiff.

HOSPITAL EXPENSES — AUNDAK

Aundak was a patient at Mt Hagen General Hospital for seven months and at Kudjip Mission Hospital for eight months. In his answers to interrogatories sworn two months before his oral evidence to me Aundak estimated that he had spent a total of K1,300 for maintenance in these hospitals. He also said he spent K150 on the purchase of a wheelchair and K100 on the purchase of a waterbed. In his evidence to me in chief he began by saying that he spent "K5,000 or K6,000" on food and necessities in the two hospitals. Note the two figures and the "or" in between plainly suggest an estimate. Later on he was definite that the amount spent in these two hospitals was precisely K5,000 which was made up in this way: K2,400 was the customary compensation he obtained and K2,600 was obtained from the sale of his and Mana’s pigs. He said the wheelchair and waterbed were paid out of this K5,000. The figures of K2,400 and K2,600 were confirmed by the evidence of the brother Mana. Nevertheless I do not believe these figures are truthful. The total of K5,000 is much more than the estimate given two months before in the affidavit. Aundak began as I have said by saying "K5,000 or K6,000" suggesting an estimate not a precise sum. He said he paid eight watchmen K20 per fortnight to care for him. He said a doctor told him to use four on each side to turn him. I find that incredible. These eight men were in addition to his main helper, his third wife. I find it unlikely in the extreme that he would pay exactly K20 each fortnight to the helpers. The more natural, customary way would be to pay for their food and added sums for gifts, extras etc. If he did engage eight helpers at K20 per fortnight then it was unreasonable. Both doctors said that two helpers would be sufficient. It is unreasonable and unjust to foist that unnecessary expense on the defendant. Lastly I consider Aundak was lying when he said he was employed by Wadau Coffee just before the accident, and that damages his credit on this matter. I accept only his estimate given in his answers and allow him K1,550 for hospital expenses.

HOSPITAL EXPENSES — KAUKE

In his answers to interrogatories Kauke said he was a patient at Kudjip Mission Hospital for three months, at Kundiawa General Hospital for one week, then Kudjip for six months and then Goroka General Hospital for one week — a total of nine and a half months. He said he spent K 1,300 on living expenses whilst in these hospitals. Two months later in evidence to me he said he spent a year in hospital and spent K3,000 whilst there — K2,400 of that was the cash part of the customary compensation received and K600 was from the sale of pigs. I do not believe his later figures. I will allow him K1,300 for hospital expenses.

MEDICAL AND NURSING EXPENSES

Each plaintiff needs a new catheter bag every three weeks. Aundak gets his free from the government medical orderly at MinJ There is no evidence where Kauke obtains his bags. He lives much further away from Minj town. I accept Mr Coady’s argument that Aundak’s free bags may not continue indefinitely. A change of medical orderly could stop the supply. They are available at 60t each at the Nazarene Hospital, Kudjip, and I will allow that sum, that is 20t per week. The evidence supports Mr Coady’s claim that a new wheelchair would cost K350 and would need to be replaced every three years. Aundak has a wheelchair which he bought for K150 which he does not use. Kauke does not have one and does not use one. It may be that after a period at the Lae spinal unit both plaintiffs will be trained to use one although in Aundak’s case on the medical evidence his use is likely to be occasional only. I will allow that expense which amounts to K2.24 per week. The evidence supports Mr Coady’s claim that K40 is needed for the replacement of a waterbed, that is the mattress part of the bed, every two years and I will allow that sum which amounts to 30t per week. The total of these three sums is K2.82 per week.

Mr Coady argued that the future nursing needs of the plaintiffs could be met by sharing the services of a full-time medical orderly. He could travel to and from their homes. The salary for such a person is K40 per week and Mr Coady argued that I should grant K20 per week to each plaintiff for this purpose. Dr Beavis said that if Aundak could use a wheelchair and had the services of a trained nursing aid five days a week this would not guarantee a more normal life span but would make it more likely. Dr Beavis agreed to the statement that a trained nursing aid would be more suitable than a village woman to care for Aundak’s medical needs. On the other hand, Dr Irwin, who has had fifteen years experience running a hospital in the Western Highlands Province, did not think the plaintiffs would be able to find a medical orderly, a nurse, or nursing aid to work for them. He said there are not many of these trained persons around and that they would much prefer to work in a hospital. He thought it very improbable that one could be found to do the job.

I accept Dr Irwin’s opinion and on that basis reject the claim. Why should the defendant pay for the services of a medical orderly who, on all probability, will never be employed? But I propose to allow a claim of K20 per week to each plaintiff for nursing expenses on a slightly different basis. The Supreme Court in Kerr’s case [1979] P.N.G.L.R. 251 at 274 and numerous single judges in Papua New Guinea have applied the Griffiths v. Kerkemeyer (1977) 139 C.L.R. 161 principle that where a wife or family member voluntarily provides medical services which otherwise would need to be done by a paid person, the plaintiff can recover the reasonable value of those services. Both plaintiffs since their discharge from hospital have been cared for by their wives — in Aundak’s case by his third wife. These wives change the catheter bags, fit new ones and manually evacuate the bowels, turn the plaintiffs, and attend to all their needs. It is constant, unpleasant, seven days a week work. It is not exactly full time employment in the sense of an away-from-home job because in between attending to her husband the wife has some time to attend to the children and to cook meals which she would have to do if her husband was not a paraplegic, but nevertheless I consider K20 per week a fair remuneration for the nursing part of her daily life.

I will allow each plaintiff the past cost of his wife’s nursing services from the date the plaintiff was released from hospital until the date of verdict. In Aundak’s case that is from say 20 November 1982 to 20 October 1983, 48 weeks x K20 per week = K960. In Kauke’s case that is from say 3 June 1982 to 20 October 1983, 72 weeks x K20 per week = K1,440. I will allow the future cost of their services at K20 per week.

SPINAL UNIT AT LAE

Both doctors were asked about possible treatment for the plaintiffs at Lae where there is a government spinal or orthopaedic unit. Neither doctor had visited the unit and so could not say much about its services. Dr Beavis recommended that the plaintiffs be sent there for an assessment; it is possible that they could there learn to sit up, use a wheelchair and other techniques which would be of great benefit to them. Dr Irwin tried to find out what treatment could be given there to Aundak but was discouraged by the response he got. I agree that the plaintiffs should be given money to go to Lae and see if they can be helped there. Mr Coady has asked for a sum of K1,000 for each plaintiff, which I consider modest, and which I will allow. Given their short life expectancy, the sooner the plaintiffs avail themselves of the treatment at Lae the better. I will allow the amount in a lump sum.

A FORTNIGHTLY ORDER

A summary of the future medical and nursing expenses and the future loss of income I have found is as follows.

Per week Aundak Kauke 
Medical expenses K 2.82 K 2.82 
Nursing (wife) 20.00 20.00 
Loss of coffee income Nil 17.30 
Hire of labourer 15.00 10.00 
 K37.82 K50.12 

Mr Coady has asked me to capitalize these weekly sums on the assumption that each plaintiff will attain sixty-two years by using the five per cent discount tables and allowing a small reduction for the vicissitudes of life. I am not prepared to do that. I have already found that the life expectancy for each man is five years from the accident which means a little less than three years from the date of judgment. If I followed the existing common law I would ignore the discount tables for such a short period and would simply multiply the above weekly sums by three years. That sum comes to K5,899.92 for Aundak and K7,818.52 for Kauke.

I propose to depart from the existing common law and award a fortnightly sum (twice the weekly sum) to each plaintiff for life. An award based on a three year life expectancy is grossly unfair to the plaintiff if he lives longer than three years. The existing common law does not permit of an order for the periodic payment of damages. One of the great features of the common law method of assessing damages is that they are determined once and for all at the trial. It may happen that after the trial the plaintiff earns more or less than the judge’s estimate on which the award was made. It may happen that the future medical expenses are greater or lesser than the judge’s estimate. If the plaintiff is a widow, it may happen as soon as the appeal period following the judgment has expired that the widow remarries when the judge calculated damages on the basis that she would not remarry. But save in exceptional circumstances (supervening events between the trial and appeal) the assessment at the trial stands for better or for worse. The disadvantage of the rule is that subsequent facts may show the assessment wrong as I have illustrated. The great advantage however of the rule is that it brings an end to litigation and that very often benefits the plaintiff psychologically by ending any litigation neurosis and medically too. The order which I propose does not offend against this once-and-for-all principle. Neither party will be able to return to the court and ask for the assessment to be reviewed. The weekly quantum is final but its duration is contingent on the death of the plaintiff. The defects of the present law can be illustrated by reference to the case of Charles Pupu v. Pelis Tomilate and P.N.G. [1979] P.N.G.L.R. 108 already mentioned in my discussion of pain and suffering. Charles Pupu was aged twenty-five at the time of the accident and was on the threshold of a lucrative career. He was a qualified aircraft maintenance engineer. He won the first prize for being the best engineering student. He was studying and training to become a licensed aircraft maintenance engineer. He was destined to become the first Papua New Guinean to gain that qualification and was likely to earn high wages in that career. He received K58,085 for future economic loss and K15,855 for future medical expenses based on a life span of thirty-five years. He died three years after the judgment. Looking back at the award and the death, the award was grossly unfair on the defendant, the defendant overpaid the plaintiff and the plaintiffs relatives received a great windfall. There appears to have been no dispute in that case over the life expectancy.

The common law requirement of a lump sum award of damages has been much criticised for example by the Woodward Commission, Compensation and Rehabilitation in Australia (1974) Vol. 1, pars 122, 123, 134-137. That Commission recommended at par. 531 that in general compensation should be provided on a periodic basis but that power should be retained to award lump sum compensation up to a maximum of $10,000. The lump sum awards were criticised by the Board of Inquiry into Motor Vehicle Accident Compensation, chaired by Sir John Minogue Q.C. which is discussed in R. P. Schaffer The Minogue Report on Motor Vehicle Accident Compensation; Fault — No Fault Revived (1979) A.L.J at 200. The Board said that the present judicial method of assessing the future loss of the plaintiff is at best an informed guess. It is very difficult to predict with any degree of accuracy the future needs of the victim. Another problem is that the present system exercises no control over the way the victim spends the damages awarded to him. While some lawyers no doubt advise their clients and try to protect them against wasting the damages awarded to them, this occurs on a random basis and is not part of the system. The system affords no safeguards that the money awarded as damages will be spent on rehabilitating the victims and supporting them and their families. The Board recommended the continuation of dual system of compensation which exists in Victoria — the common law fault system and the non-fault system — and recommended improvements to both. It recommended that the Victorian Courts should be empowered to award damages in a lump sum or in periodic payments, and if the latter, that they could be reviewable by the courts. Periodic payments subject to review were recommended by J L. Sher Q.C. a Victorian silk who practices in the personal injuries field in a paper delivered to the 21st Australian Legal Convention published in (1981) 55 A.L.J 458. He recommended that the periodic payments be limited to the future medical and nursing needs of the victim but his comments on the defects of the present system are of wider ambit and would apply in my view equally well to Papua New Guinea. I quote from 469-470 of his paper:

"In assessing damages, a great deal of sophisticated guesswork takes place. Hardly an important case goes by without an issue arising as to the plaintiffs expectation of life. It is extraordinary how much experts can differ on a matter so critical to the assessment. One suspects errors are common. Reason often gives way to sentiment, and well it might for no one likes to send a seriously injured plaintiff away from the court without an adequate fund to provide for his future needs, some of which affect his chances of survival. Cases involving quadriplegics are a good example. Their plight is pitiful. Witnesses are called to predict for how many weeks per annum the plaintiff will require to be hospitalised, what care and attention he requires, what he needs for his daily survival. These items, once proved, are then calculated according to current costs, which everyone knows will almost certainly increase.

Once an award is made, almost everyone leaves the court, confident in the knowledge that an error has been made. Either the plaintiff has received too much or too little. Rarely will the plaintiff get the correct amount; and that will only be known when he dies. If the plaintiff gets too little, eventually he is thrown upon the charity of relatives and friends, or the State. If he gets too much, some relatives (not uncommonly the negligent tortfeasor) receives a windfall. Neither situation is desirable, and both, I believe, should be avoided.

Further, whilst the court is required to assume for the purpose of calculating damages that the plaintiff will act prudently, and invest the fund awarded, once the award is made the court loses all interest. It is useful to cite the recent observations of Gibbs J in Cullen v. Trappell (1980) 146 C.L.R. 1 at 15: ‘It is trite law that the court has no concern with the use to which the plaintiff may put the amount paid to him in satisfaction of his verdict. He may invest it in gilt-edged securities, or hazard it in an investment which may yield a capital gain, or squander it on luxuries, and it does not matter to the court whether he may possibly, or does actually, use it in any of those ways.’ Similar views were expressed by him in Barrell Insurances.

Are we, as practising lawyers, content with this situation? How many plaintiffs are capable, even with expert advice, of prudent investment? Is the advice available good enough? How many plaintiffs do use their damages for the purposes for which they were awarded? How many, in fact, prudently invest their funds? How is it possible to protect a plaintiff from the importuning of relatives and friends who, with the best will in the world, would be ready to assist a plaintiff spend his damages? What happens if and when predictions as to future needs for goods and services, and the cost of them, are shown to be wrong by the passage of time and a change of events? In my opinion, there is a desperate need for reform in this area."

The power to make the periodic orders I propose comes I think from s. 155(4) of the Constitution which reads:

"(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

and in particular from the latter words of that subsection "such other orders as are necessary to do justice in the circumstances of a particular case". The ambit of that power has been discussed in a number of cases: Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No. 1) [1977] P.N.G.L.R. 80, Premdas v. Independent State of P.N.G. [1979] P.N.G.L.R. 329, Avia Aihi v. The State [1981] P.N.G.L.R. 81, New Guinea Cocoa (Export) Co. Pty Ltd v. Basis Vedbaek [1980] P.N.G.L.R. 205, and Dent v. Thomas Kavali [1981] P.N.G.L.R. 488. Those cases have decided that the latter words are disjunctive from the former, that is that the latter orders do not have to be in the nature of prerogative writs. The section is a grant of power or of jurisdiction. It does not affect the primary rights of parties which are determined by the substantive law. It is no warrant for the courts allowing a new cause of action for example. The section encompasses remedies, adjectival and procedural orders. It enables the courts to tailor their remedies to the circumstances of an individual case to ensure that the primary rights of a party are protected. The section has been used to justify a Mareva injunction and a declaration of right. I consider it could be used to justify the arrest of a ship on the issue of a writ, an Anton Piller order, and the issue of a writ and the entry of judgment in a foreign currency (now widely allowed in England as a common law development following Miliangos v. George Frank (Textiles) Ltd [1976] A.C. 443).

The periodic orders I propose in this case fall within the ambit of s. 155(4). I have not allowed a new cause of action. The cause of action and the measure of damages for future economic loss and future medical expenses are within the existing common law. The existing common law requires the future loss and expenses to be estimated as weekly sums which I have done. It then requires those weekly sums to be computed into a lump sum by the use of interest tables based on my estimate of the working life expectancy for economic loss, and the life expectancy for future medical expenses. It then requires me to make some reduction on the assumption that the possible adverse vicissitudes of life are likely to outweigh the possible favourable vicissitudes. My periodic orders are simply an alteration in the form in which the money I estimate for the plaintiffs’ future economic loss and medical expenses are given to them. It is an alteration in the remedy and I believe that orders for periodic payments which cease on death are a more precise and exact way of arriving at the same result, namely compensation for the plaintiffs’ future economic loss and medical needs. I consider that the orders are necessary to do justice to the parties in the circumstances of this particular case. A lump sum payment based on a three-year life span would be unjust to the plaintiffs if they should live longer than three years and to the defendant if they should die before then.

The Supreme Court and National Court should not hesitate to use s. 155(4) to make new law on occasions and on other occasions to declare parts of the English common law and equity inapplicable and inappropriate to the circumstances of Papua New Guinea under the Constitution Sch. 2.2. I am impressed how the English common law itself has changed to meet new circumstances. For example the first injunction to restrain a defendant disposing of his assets before the trial of the action, was justified on this basis. There was no attempt made to cite authority or to extend an existing principle. I cite from the judgment of Lord Denning M.R. in Nippon Yusen Kaisha v. Karageorgis [1975] 3 All E.R. 282 at 283:

"We are told that an injunction of this kind has never been done before. It has never been the practice of the English courts to seize assets of a defendant in advance of judgment, or to restrain the disposal of them. We were told that Chapman J in chambers recently refused such an application. In this case also Donaldson J refused it. We know, of course, that the practice on the continent of Europe is different.

It seems to me that the time has come when we should revise our practice. There is no reason why the High Court or this court should not make an order such as is asked for here. It is warranted by s. 45 of the Supreme Court of Judicature (Consolidation) Act 1925 which says that the High Court may grant a mandamus or injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the court to be just or convenient so to do. It seems to me that this is just such a case. There is a strong prima facie case that the hire is owing and unpaid. If an injunction is not granted, these moneys may be removed out of the jurisdiction and the shipowners will have the greatest difficulty in recovering anything. Two days ago we granted an injunction ex parte and we should continue it."

This important change which was greatly appreciated by the commercial community was thus justified as a revision of the court’s practice. This order was granted in May 1975 and was then followed in June 1975 in the Mareva case (1975) 2 Lloyd’s Rep. 509 (and later at [1980] 1 All E.R. 213) and is now known as the Mareva injunction.

Similarly the House of Lords in Miliangos v. George Frank (Textiles) Ltd [1976] A.C. 443 held that a plaintiff can sue for a debt expressed in a foreign currency and obtain a judgment for a foreign sum or the sterling equivalent because it gave a more just result and there was no practical difficulty in enforcing such an award. The House of Lords reversed its own unanimous decision given only fifteen years before in the Havana Railways case [1961] A.C. 1007 in which Lord Denning, then in the House of Lords, said at 1068-1069 with characteristic pungency:

"And if there is one thing clear in our law, it is that the claim must be made in sterling and the judgment given in sterling. We do not give judgments in dollars any more than the United States courts give judgments in sterling."

Since 1966 the House of Lords can depart from its earlier decisions but does not do so lightly. In the leading opinion, Lord Wilberforce carefully analysed the basis of the decision in Havana Railways and concluded that it rested on a presupposition that procedurally a judgment in a foreign currency could not be enforced in England and he then gave reasons why that presupposition was no longer valid. The English courts had evolved a procedure for the enforcement of foreign judgments in the form, "It is adjudged ... that the defendant do pay to the plaintiff (the sum in foreign currency) or the sterling equivalent at the time of payment." Moreover London arbitrators regularly made awards in foreign currencies which have been upheld as valid by the Court of Appeal and registered in the High Court under the provisions of the Arbitration Act and enforced by that court. Like the Mareva injunction this decision was justified as a change of practice.

It may be that the historical origin of lump sum awards for personal injuries was that many defendants were individuals who of course died, changed addresses, become bankrupt etc. and that plaintiffs would have great difficulty enforcing periodic awards which might last for twenty or thirty years. But if so, all that has been changed by compulsory third-party insurance. The defendants in Papua New Guinea are usually the Motor Vehicles Insurance Trust or the State. In this case the defendant is the State with perpetual succession and adequate money to meet the periodic payments and I have no doubt that the payments ordered will be honoured. I see no administrative problems; the award can be fed into the computer and the plaintiffs paid fortnightly say through the Bureau of Management Services or the Department of Health, at MinJ For these reasons I consider that the periodic orders are necessary to do justice to the parties in this case and the common law requirement that all parts of a damages award should be contained in a lump sum is inapplicable and inappropriate to the circumstances of the country in this particular case.

INTEREST

Mr Coady in his closing address claimed interest on any damages awarded. The power to award interest is contained in s. 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch. No. 52). Mr Wohuinangu opposed the claim on the basis that it was not claimed in the writ or the pleadings and no application to claim it by way of amendment to the pleadings was made at an earlier stage. In England such a claim for interest under statute need not strictly be pleaded: Riches v. Westminster Bank Ltd [1943] 2 All E.R. 725 "but the better practice is to add such a claim in the prayer particularly in claims for personal injuries": Bullen and Leake and Jacob’s Precedents of Pleadings (12th ed., 1975), at 66. A recent practice direction in England says it should be expressly claimed in the prayer in the statement of claim and that the form "Interest pursuant to the Law Reform (Miscellaneous Provisions) Act 1934" is sufficient: [1982] 3 All E.R. 1151. The natural justice requirement of s. 59 of our Constitution also requires that the defendant be given notice of what he has to meet. Although the application for interest was made in Mr Coady’s concluding address I propose to allow it. Mr Coady has led no evidence on the rate of interest I should choose nor addressed any arguments to me on the principles involved. I cannot see how the defendant has been disadvantaged by the lateness of the claim.

Section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act (Ch. No. 52) reads as follows:

"Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment."

The section was copied from the Law Reform (Miscellaneous Provisions) Act 1934 (U.K.) so, obviously, the English cases are of great help in applying the section and I have found the r‚sum‚ of the English case law found in The Supreme Court Practice 1982 Vol. 1 pars. 6/2/7B ff very useful. In the following discussion references to the English law are taken from that text unless otherwise stated. It will be noted that the Papua New Guinea section gives a general power to the court — a full discretion. In England by statute in 1969 that power was altered so that interest, if claimed, has to be awarded unless good cause is shown to the contrary. Papua New Guinea has a general power as also does New South Wales (which first allowed interest in 1972 when it adopted the judicature system) and Queensland. The more restricted power of England since 1969 has been followed in Victoria and South Australia. Although there are two kinds of sections in these jurisdictions, the courts of those jurisdictions have tended to give them the same effect: interest on damages for personal injuries is nearly always awarded.

The section allows the court to fix the date from which the interest will commence. In England interest on special damages runs from the date of the accident to the date of trial and on pain and suffering from the date of service of the writ to the date of trial. The practice of single judges in Papua New Guinea in recent years has been to allow interest from the date of the issue of the writ and I propose to follow that practice.

The governing principle of interest is that it should be awarded to the plaintiff, not as compensation for the injuries suffered, but for being kept out of money which ought to have been paid to him. This is the sole principle and it means that the same rate of interest should be fixed for pre-trial pain and suffering and loss of amenities as for pre-trial economic loss. It is wrong to fix a lesser rate for pretrial pain and suffering because the award inevitably reflects an allowance for inflation which has occurred between the issue of the writ and the date of trial, whereas the award for economic loss does not. The House of Lords in Pickett v. British Rail Engineering Ltd [1978] 3 W.L.R. 955 pointed out the fallacy of this argument. As Lord Wilberforce at 963 said:

"Increase for inflation is designed to preserve the ‘real’ value of money: interest to compensate for being kept out of that ‘real’ value. The one has no relation to the other. If the damages claimed remained, nominally, the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same."

That is a post-Independence decision but the reasoning appeals to me, as it did to the High Court of Australia in Cullen v. Trappell (1980) 196 C.L.R. 1. I consider it appropriate to the circumstances of this country. It is contrary to the views expressed by Wilson J in Aspinall v. Government of P.N.G. (No. 2) [1980] P.N.G.L.R. 50 which I followed in Pinzger v. Bougainville Copper Ltd [1983] P.N.G.L.R. 436.

What rate of interest should be fixed? In England the rate awarded must be a realistic rate and must normally be based on the "appropriate" rate which is the average rate of interest allowed on money in court placed on the short term investment account over the period for which the interest is awarded. The rates for 1965 to 1981 are given in the Supreme Court Practice. In New South Wales the rate in 1982 was ten per cent (D. I. Cassidy, "Interest at Common Law", (1982) 56 A.L.J 213 at 216. The practice of single judges in Papua New Guinea in recent years has been to choose eight per cent. I know of no Supreme Court decision on the point. I propose to follow that practice. My view is reinforced by the fact that the new rules of the National Court which came into force on 4 July 1983 fixed the prescribed rate of interest on judgment debts at eight per cent (O. 12 r. 6). That rate was thought by all the judges to be generally appropriate on judgment debts and would therefore be an appropriate rate for the pre-judgment period.

In Papua New Guinea, England and Australia it is necessary to divide the sums awarded for pain and suffering and economic loss into pre-judgment and post-judgment components. Interest is only payable on the pre-judgment losses. In Australia interest is not allowed on the portion of the award which represents a Griffiths v. Kerkemeyer claim (Cassidy, op. cit., 217 citing two unreported New South Wales decisions) and that seems right to me. If the plaintiffs wife supplied voluntary nursing services the plaintiff is not out of pocket. It is not an expense which he has paid or has to pay. Similarly, in this case, neither plaintiff has in fact employed a labourer to do the work he could not do so they are not out of pocket over this. If a plaintiff had paid for a labourer he would have spent money on this which the defendant should have provided and the plaintiff would be entitled to interest on that expenditure.

It is possible that the plaintiffs could be assessed for income tax on the interest awarded for the year 1983 but I propose to follow the English practice and make no increase for this.

I now apply these principles to each plaintiff.

Aundak has a life expectancy of five years from the date of the accident. It is now two years two months since that date. He spent fifteen months in hospital. I apportion his pre-trial pain and suffering and loss of amenities at K45,000. The accident occurred on 20 August 1981, the writ issued on 30 August 1982. I estimate that by the latter date Aundak had experienced two-thirds of his pre-verdict pain and suffering and loss of amenities. I should allow interest on K30,000 at eight per cent from 30 August 1982 to date, 20 October 1983. However Aundak received an interim award of K25,000 damages on 24 June 1983. I will therefore calculate the interest as follows:

K25,000 x eight per cent from 30 August 1982 to 24 June 1983
(298 days) = K 1,632.87
K5,000 x eight per cent from 30 August 1982 to 20 October 1983
(1 year 51 days) = K455.89

I consider that his pain and suffering has been constant over the period of fourteen months from 30 August 1982 to date 20 October 1983 and I will therefore allow interest at eight per cent on K15,000 for seven months = K700.

Aundak’s past economic loss is in two parts. He spent K1,550 on hospital expenses over a fifteen month period commencing on the day of the accident. I consider that these moneys were spent evenly over that period. He had spent twelve of the fifteen months in hospital when the writ was issued. He is thus entitled to interest on four-fifths of K1,550 (K1,240) from 30 August 1982 to 20 October 1983, which amounts to K113.06. The other one-fifth of the expenses (K310) was incurred over a three month period commencing 20 August 1982. He is entitled to interest on this sum at eight per cent commencing from the mid-point 1 October 1982 to 20 October 1983 which comes to K26.09.

I have allowed Aundak a loss of firewood income of K200 per year and I assume that this income would have been earned evenly for each year of the pre-verdict period. His loss of income was approximately K200 as at the date of issue of the writ and he will get interest on this sum at eight per cent from 30 August 1982 to 20 October 1983 = K18.23. His loss over the fourteen months since then has been K233.33. I will allow interest on that at eight per cent x seven months = K10.88.

I have allowed Aundak a tradestore loss of K384 being K4 per week from the date of the accident 20 August 1981 to the date of the interim award. I will assume that his loss accrued evenly at K4 per week over that period. As at the date of issue of the writ 30 August 1982 his loss was K204. I will allow him interest on that sum from 30 August 1982 to 20 October 1983 = K18.60. Since the issue of the writ his tradestore loss has been K180 spread over 14 months. I will award interest on that at eight per cent x seven months = K8.40.

I have awarded Aundak K1,500 for loss of expectation of life. Interest is awarded on that sum in England (The Supreme Court Practice 1982 vol. 1 par. 16/2/7d) and should also, in my view, be awarded here. Interest will run on K1,500 at eight per cent from 30 August 1982 to 20 October 1983 (one year fifty-one days) = K136.76.

The total sum of interest allowed to Aundak in the preceding paragraphs is K3,120.78. However the principal sums on which the interest has been calculated must be discounted by fifteen per cent to allow for Aundak’s contributory negligence. The same result can be achieved by discounting the interest awarded by fifteen per cent. The interest awarded to Aundak is thus K2,652.66.

Kauke was in hospital nine and one half months. It is now two years two months since the accident. He has a present life expectancy of approximately two years ten months. I apportion his pre-verdict pain and suffering and loss of amenities at K37,500. I consider that about K25,000 of that pain suffering and loss of amenities was incurred before the issue of the writ which period includes the whole of the hospitalisation, and that K12,500 of that pain and suffering was incurred over the fourteen months since the issue of the writ. An interim award of K25,000 was granted to the plaintiff on 24 June 1983. I will therefore award interest on that K25,000 from 30 August 1982 to 24 June 1983 (298 days) x eight per cent = K1,632.87. The remaining K12,500 worth of pain and suffering etc. was incurred evenly over the latter fourteen months so I will allow interest on that sum at eight per cent x seven months = K583.33.

Kauke’s pre-verdict economic loss falls into two parts. The first is medical out-of-pockets. He spent K1,300 in hospital expenses prior to the issue of the writ. I will allow him interest on that sum from the issue of the writ 30 August 1982 to date, 20 October 1983 at eight per cent = K118.53. The second part is loss of coffee income assessed at K900 per year, loss of firewood income assessed at K200 per year, and loss of vegetable income assessed at K50 per year. For the purpose of calculating interest these sums can be lumped together. I will assume that the loss of income from these sources has accrued evenly over the pre-verdict period. At the date of issue of the writ the loss of income had been approximately K1,150. There will be interest on that sum at eight per cent from 30 August 1982 to 20 October 1983 = K104.85. The loss of income over the past fourteen months has been K1,341.66. I will assume that that loss accrued evenly over that period. I will therefore take a mid-point of that period and say that interest is due on K1,341.66 for seven months x eight per cent = K62.61.

Kauke is entitled to get interest on K1,500 awarded to him as loss of expectation of life from the date of issue of the writ. The sum comes to K136.76.

The total interest payable to Kauke is K2,638.95.

For reasons given above I do not consider interest is payable on the money awarded for the pre-verdict nursing services rendered by the wives of the plaintiffs nor on the sums awarded for the notional pre-verdict hire of a labourer for each plaintiff.

Summary of Award 

(1) Lump sum part of award

	Aundak	Kauke	
Pain and suffering and loss of amenities	K90,000.00	K75,000.00	
Past economic loss:			
Firewood	433.33	433.33	
Tradestore	384.00	nil	
Vegetables	nil	108.33	
Coffee	nil	1,950.00	
Hire of labourer	1,695.00	1,130.00	
Loss of expectation of life	1,500.00	1,500.00	
Past medical expenses:			
In hospital	1,550.00	1,300.00	
Wife’s nursing	960.00	1,440.00	
Future medical expenses:			
Spinal unit Lae	1,000.00	1,000.00	
Total:	97,522.33	83,861.66	
Less 15% contributory negligence	14,628.34	nil	
	82,893.99	83,861.66	
Plus interest	2,652.66	2,638.95	
	85,546.65	86,500.61	
Less customary compensation	5,505.00	5,280.00	
Received	80,041.65	81,220.61	
Less interim award	25,000.00	25,000.00	
Total	55,041.65	56,220.61	

(2) Future periodic payments

Hire of labourer	K15.00 p.w.	K10.00 p.w.	
Loss of coffee income	nil	17.30 p.w.	
Future medical expenses	2.82 p.w.	2.82 p.w.	
Future nursing expenses	20.00 p.w.	20.00 p.w.	
Total	37.82 p.w.	50.12 p.w.	
Less 15% contributory negligence	5.67	nil	
Total	K32.15 p.w.	K50.12 p.w.	

Based on the awards and calculations contained in these reasons which I have summarized above I now order the defendant to pay K55,041.65 to the plaintiff Aundak and K64.30 per fortnight for life. I order the defendant to pay K56,220.61 to the plaintiff Kauke and K100.24 per fortnight for life. The periodic sums are to be paid in arrears commencing from the date of entry of verdict and are to be paid on government paydays.

I reserve the question of costs.

Orders accordingly.

____________________________________

Lawyer for the plaintiffs: Kirkes.
Lawyer for the defendant: B. O. Amos, Acting State Solicitor.