Home | Databases | WorldLII | Search | Feedback Papua New Guinea District Court

Benett v John [2007] PGDC 45; DC542 (14 May 2007)

DC542

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 102 of 2007

BETWEEN

GIAME BENETT
Complainant

AND

MUKSY JOHN
Defendant

Goroka: M IPANG
2007: May 08, 14

Family Law: Child Welfare Act, Chapter 276 – Child born out from boy-girl relationship – Complainant and Defendant – Secondary High School students – Defendant now employed – supports the child on adhoc basis – Support considered insufficient – inadequate.

Civil Law: Complainant claimed on behalf of her illegitimate healthy female child aged 2 years for wrongful life claim. A claim that the child would be better off if she had never been born. Whether or not can she claim damages for wrongful life?

Held: 1. Support or maintenance provided by the Defendant has to be Consistent and on regular basis. Support provided by defendant is inconsistent and inadequate therefore, he is ordered to pay a regular child maintenance for the upkeep of the child.

2. Claim for wrongful life is dismissed on the reason being that there is no cause of action in Law. This is based on the grounds that; such a claim undermines the sanctity of life and secondly, damages are impossible to ascertain life and non-existence.

Cases Cited
McKay & Another –v- Essex Area Health Authority & Another [1982] 1 Q.B 1166
Zepeda –v- Zepedea (1963) 190 N.E zd 849 (App. Cr. 111)

Counsel
Complainant: In Person
Defendant: In Person

14 May 2007

REASONS FOR DECISION

M Ipang: Complainant came to this Court seeking two reliefs. Her first being for child maintenance and confinement expenses under provisions of Child Welfare Act, Chapter 276. So, her first relief is a statutory based one.

2. Her second relief may be categorised as a civil law for the tort of wrongful life. She claimed since Defendant was not ready and does not intend to marry her and take the child as his child, the child’s life amounts to a wrongful life. In short a wrongful life claim is commonly expressed as being a claim by the child that she have been better off if she had never been born: birth (life) itself is said to be an injury. The second claim raises both legal and ethical issues.

3. Issues.

i. Whether the support provided by the Defendant for the child Reisi on an ad-hoc (irregular) basis is adequate/ sufficient?

ii. Whether or not, can the child Reisi be successful in her wrongful life claim?

4. Brief Facts:

Giame Benett and Muksy John were students at Goroka Secondary High School when both formed a boy-girl relationship. It was through this special bondage that Giame got pregnant and had to discontinue her studies.

5. Defendant continued his studies and then on to a Teacher Training College. Complainant left the school and stayed with her parents until she gave birth to a female child Reisi on the 06 August 2004. After she gave birth, her relatives supported her to maintain the child as Defendant was a student at the college.

6. In 2005, Muksy graduated from the college and in 2006 was his first year of teaching and currently 2007 will be his second year of teaching. He is currently teaching at Okiufa Primary School. Giame claimed when she was pregnant, Muksy assured her that she can go and stay at home and that when he completed his teacher training and commence teaching, he will take her and the child. Giame kept his words and then gave birth to the child and waited for Muksy to complete his college training.

7. Giame claimed after Muksy completed his training and started teaching, he has not kept to his promise. Worse of all, she said he has not been supportive of her and the child. Giame claimed the only time, he supports her child is when she approaches Muksy for assistance. She said she does not approach Muksy all the time.

8. Muksy admitted not regularly and consistently supporting the child. He said he does so, when Giame approaches him for his support. He told this Court that he does not intend to take Giame as his wife because their friendship/ relationship was for only three months when Giame got pregnant and he does not know her too well.

9. The welfare, well-being, care of the child will be well-catered for if Defendant contributed his share of money, resources, time, etc.... for the comfort of the child.

10. On the first issue, it is obvious that Defendant’s support for the child is inadequate and insufficient so far and so he will be ordered to maintain the child on a regular fortnightly basis. He will also be ordered to pay for the confinement expenses.

11. It is the complainant’s second leg of claim for wrongful life, which will need more analysis and application of law. In fact it is a grey area of law in this jurisdiction.

12. The child who is the subject matter of this proceeding was born an healthy child on 06 August 2004. She was born out of a short term relationship of Giame Benett and Muksy John. It is obvious Giame’s pregnancy is unplanned and so, it is an unwanted pregnancy and the child is an illegitimate child. Defendant due to short relationship with Giame, is not willing to take Giame as his wife.

13. Giame in her second leg of claim on behalf of her daughter told his Court, the child should not have been born if Muksy did not insist on having sexual intercourse. She said now, there is a life a human life, which should not have existed if defendant does not insist at the beginning (emphasis mine). She submits that Defendant should therefore, pay damages for wrongful life as the child is living a wrongful life.

14. My task has become difficult in that both parties do not have legal representations. As I’ve said this is a grey area of law and I am curious to know on what legal basis is the complainant basing her claim on. However, this should not stop her from addressing her claim; so that at least she is satisfied that the Court has deliberated on the issue.

15. Wrongful life is commonly expressed as being a claim by the child that she have been better off if she had never been born: (birth) life itself is said to be the injury. The issue – for this court to determine is: whether or not, can the child Reisi claim for damages under the claim of wrongful life?

16. Giame Benett and Muksy John were students, who had three months of boy-girl relationship when Giame got pregnant. Both were not ready for marriage and child-rearing, when Reisi was born. The child was born when Giame and Muksy were not ready to accept her, most especially Muksy. As a consequences of this, the complainant Giame comes before this Court, telling this Court, that the child Reisi should be better off if she had never been born, since Defendant insisted he should pay damages for this. Defendant said it was unfortunate and unexpected situation in which the child Reisi was born. However, he said he will maintain the child.

17. Claiming damages for wrongful life will be undoubtedly problematic, not the least because it requires a judgment as to how awful life must be before non-existence would be preferable. See McKay and Another –v- Essex Area Health Authority and Another [1982] 1 Q.B 1166.

18. Furthermore, fears of opening the floodgates to claims from individuals who find aspects of life unsatisfactory or inconvenient can be seen in Zepeda –v- Zepeda (1963) 190 N.E zd 849 (App. Cr. 111), where a son sued his father because he was illegitimate. While the Court accepted that the son had been harmed and also that all the requirements of a tort were present (duty, breach, causation, harm), it declined to compensate him, partly because to do so would encourage other claims based, for example, on being born to a certain colour or race, or to poor parents. Such reluctance is typical: worth few exceptions, in both common law and civil law jurisdictions, wrongful life have been rejected.

19. Courts in common law and civil law countries have put forward different reasons for not allowing such claims ranging from legal to the metaphysical but there are two principal themes running through the cases. First to allow birth as a legally recognised injury undermines the sanctity of life and second, damages are impossible to ascertain because it involves comparing life and non-existence.

20. Adopting and applying the principle and reasoning derived in Zepeda –v- Zepeda (Supra). I refuse to grant the second leg of relief sought by the complainant on the reasons there is no cause of action in law based on the grounds that granting of damages you sought for wrongful life claim would undermine the sanctity of life and most importantly, it would be very difficult to asses the damages.

Complainant: In Person
Defendant: In Person