Damages appeals are common in Papua New Guinea, especially in personal injury, defamation and police brutality claims, and they are often filed by both sides, one saying the sum is too high and the other too low. The Supreme Court’s approach has been settled for over forty years.
The test
The Supreme Court held that general damages for pain and suffering and loss of amenities are assessed having regard to the prevailing condition of the plaintiff at the time of injury and the general standards prevailing in the community, following Dillingham Corporation v Diaz; that the assessment of K35,000 under that head was so inordinately low as to require intervention and should be increased to K60,000; and that income tax the plaintiff would have paid is taken into account in assessing loss of earnings: Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.
An appellate court disturbs an award of damages where the trial Judge acted on a wrong principle of law, misapprehended the facts, took into account something irrelevant or overlooked something relevant, or where the amount is so inordinately high or low that it must be a wholly erroneous estimate. It does not interfere because it would have awarded a somewhat different sum. This is the Curtain Bros approach to discretion applied to an assessment.
How different heads are treated on appeal
| Head | Nature | Appellate approach |
|---|---|---|
| Special damages: medical bills, repairs, lost wages to trial | Proved by evidence to a figure | Question of fact; leave under s 14(1)(c); disturbed if unsupported by evidence |
| General damages for pain, suffering, loss of amenities | Judgment within a range set by comparable awards | Kerr: inordinately high or low |
| Future economic loss, loss of earning capacity | Estimate on multiplier and multiplicand, with contingencies | Error of principle in the method, or a figure outside the range; the Court often recalculates |
| Dependency claims under the Wrongs (Miscellaneous Provisions) Act | Statutory formula applied to findings | Reassessed where the formula was misapplied |
| Defamation, false imprisonment, breach of constitutional rights | At large; vindication and compensation | Disturbed where out of line with comparable awards or where aggravation was wrongly included or excluded |
| Exemplary damages | Punitive; against the State subject to s 12 of the Claims By and Against the State Act | Set aside where awarded without the required finding of oppressive or arbitrary conduct |
| Interest | Discretionary under the Judicial Proceedings (Interest on Debts and Damages) Act | Rate and period reviewed as a discretion |
Do I need leave?
A ground that the award is excessive or inadequate involves the application of legal principle to the facts found and is generally treated as a question of mixed fact and law, appealable as of right under section 14(1)(b). A ground that the Judge should have found a different fact, for example a longer period of incapacity, is a question of fact alone and needs leave under section 14(1)(c). An appeal against an award of damages only, where liability was found by consent or is not contested, is an appeal from a final judgment and does not fall within section 14(3). File Form 7 with Form 8 if in doubt. See whether you need leave to appeal.
What the Court does with the award
Under section 16(c) of the Act the Court gives the judgment that ought to have been given, which means substituting its own figure where the evidence in the appeal book allows it, as it did in Kerr. Where the assessment was vitiated by an error that requires further evidence, such as an unproved head of loss, the Court remits under section 16(d) for reassessment, usually by the same Judge. Section 8 lets the Court draw inferences and, exceptionally, receive further evidence, but fresh medical evidence about deterioration since trial is rarely admitted, because damages are assessed once and for all. The Court also adjusts interest to run on the new figure. See what remitting a case means and what orders the Court can make on appeal.
Pleading and arguing the ground
A damages appeal is argued with a table of comparable awards, adjusted for the date and for changes in the value of money, showing that the award falls outside the range. Order 7 Rule 9 requires the ground to state the error: that the Judge applied no discount for contingencies, awarded for a head not pleaded, double-counted loss of earnings and loss of amenities, or ignored uncontradicted medical evidence. The extract of argument under Order 11 Rule 18 sets out the passages of the judgment and the transcript relied on. See how the Supreme Court reviews a Judge’s discretion and the Personal Injury series, which includes an index of awards.
Sources
- Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251
- Curtain Bros (PNG) Ltd v University of Papua New Guinea (2005) SC788
- Supreme Court Act (Chapter 37) — ss 6, 8, 14, 16
- Supreme Court Rules 2012 — O 7 r 9; O 11 r 18; Forms 7, 8
- Claims By and Against the State Act 1996 — s 12
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.