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Guma v The State [1980] PGNC 39; N262 (28 November 1980)

Unreported National Court Decisions

N262

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. NO. 706 OF 1976
BETWEEN: BOGIL GUMA
PLAINTIFF
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
FIRST DEFENDANT
AND: PIUS KEREPIA
SECOND DEFENDANT
AND: JOSHUA VOROKON
THIRD DEFENDANT
AND: PETRUS MOSA
FOURTH DEFENDANT
AND: IGNAS PINDA
FIFTH DEFENDANT
AND: VICTOR TELE
SIXTH DEFENDANT
AND: YAKAPU MOWAI
SEVENTH DEFENDANT

Kundiawa & Waigani

Miles J
22-23 September 1980
28 November 1980

REASONS FOR JUDGMENT

MILES J: On the night of Wedy, 6th 6th March, 1974 at about half past eight a man called Wesley Kurogol Kolai was driving a Landcruiser on the Highlands Highway from Kundiawa towards the River, a mile or two distant. Police in another vehicle oble observed the Landcruiser swaying from side to side and stopped it. The driver declined to get out when asked and was told that he was being arrested for driving under the influence of intoxicating liquor. He was then removed after a struggle and placed in the cage at the rear of the police vehicle. The door of the cage was closed and bolted. The police vehicle then proceeded back to the Kundiawa police station. Upon arrival the door to the cage was found to be open and the prisoner missing. Police returned to the Highlands Highway and found the prisoner on the road with blood flowing from the back of his head. He was conveyed to the Kundiawa General Hospital, where he was found to be dead upon arrival.

The plaintiff is the widow of the deceased and sues by writ issued 29th September 1976 under Part IV of the Law Reform (Miscellaneous Provisions) Act 1962 claiming loss of economic support on behalf of herself, those relatives specified in s. 10 (1) of the Act, and those persons who were by custom dependent upon the deceased immediately before his death as referred to in s. 10 (2). There is no evidence that the plaintiff or any other person has been granted probate or letters of administration of the estate and it has been assumed that the plaintiff’s representative capacity to sue arises under s. 11 of the Act.

It is admitted on behalf of the defendants that the deceased’s death occurred within thirty minutes of the arrival of his body at the hospital and that the cause of death was an acute sub-dural haemorrhage as a result of a blow, probably to the back of the head. The conclusion is inescapable, and I so find, that the deceased received such an injury when he fell from the cage of the police vehicle on the way to the Kundiawa Police Station. I further find that the deceased himself was able to open the door of the cage, that he did in fact open it and that he fell at or shortly after the time of opening it. I do not find that he deliberately jumped or otherwise flung himself from the vehicle.

The plaintiff’s cause of action is framed in negligence and is brought against the State and the several members of the Royal Papua New Guinea Constabulary who were responsible for the arrest of the deceased and for placing him in the police vehicle. It was submitted that the liability of the State is “personal” in the sense that the State has been guilty of a breach of duty to take reasonable steps to ensure that persons in lawful custody are safe-guarded from harm including their own acts which might imperil their safety. Alternatively it was submitted that the liability of the State was vicarious, that is that the acts of the individual members of the constabulary are for the purpose of liability of damages to be taken to be the acts of the State itself in whose service they are engaged. Additionally it was alleged that the individual policemen were negligent in and about the way they attended to the safety of the deceased from the time of the arrest until the time he fell from the vehicle. The defendants deny negligence and allege contributory negligence on the part of the deceased; they also raise the defence of voluntary assumption of risk.

The nation’s police force, known as the Royal Papua New Guinea Constabulary, was originally established by the Police Force (Interim Arrangements) Act 1973, and was re-established as one of the State Services under Part VII of the Constitution. It is subject to the control of the National Executive through a Minister and the office of Commissioner of Police is established for the superintendence, efficient organisation and control of the Force in accordance with an Act of the Parliament. The Act divides the Police Force into Branches of which the Regular Constabulary is one. It also sets out the ranks of members and the order of their precedence and seniority. The Force is however not a corporate body nor is any member of it vicariously responsible as the employer or principal of any other member. Its structure is seen to be similar to that of police forces and other governmental instrumentalities elsewhere of which it has been said that “vicarious liability is generally imputed on the same principles as in the case of private employment except for acts committed in the execution of an ‘independent’ duty or discretion vested in the officer personally or by the common law or statute, like arrests by a police constableN262.html#_edn366" title="">[ccclxvi]¹”.

Evidence was given for the plaintiff by Silam Maima Mule who had accompanied the deceased on the night in question. Evidence was given also by each of the individual defendants, as to the events on the night. I do not intend to review that evidence in detail. It is in short compass and does not appear to be in dispute. The deceased had been drinking in the Kundiawa Hotel from the time it opened at 4.00 p.m. until some time between 6.30 p.m. and about 8.00 p.m. He was under the influence of liquor. The arrest was a lawful one. When the deceased was put in the cage of the police vehicle, he was the only person in it. It would have been possible for one or two of the policemen to get in with him. None of them did so. It was not the practice and still is not. None of them had handcuffs so they were not able to place the deceased under that form of restraint. The door of the vehicle was secured by two sliding padbolts, one near the top of the door, the other near the bottom. It would have been quite easy for the deceased to put his hand through the wire mesh and to thus pull back the padbolts and open the door to the cage. The door opens outward. The gaps in the wire mesh as shown in photographs admitted into evidence appear to be some four to six inches square.

Evidence was also given on behalf of the plaintiff by Chief Superintendent Ronald Phillip Simmons, now Director of Traffic at Police Headquarters, Port Moresby, but at the time a sub-inspector attached to Kundiawa police station. This evidence was not in dispute. It established that padlocks are not used to secure the bolts on the door to the cage of such vehicles as the one in question but that it is the practice to so construct the door that the bolts are positioned where the prisoner cannot reach them. The cage on the particular vehicle had been constructed in Kundiawa and in the Chief Inspector’s own words was “jerry built”. There were at the time no design specifications for these cages as there are now but the witness said that it was possible to design and construct a cage at Kundiawa at that time which would effectively prevent a prisoner from opening the door - by such a relatively simple measure as an additional welded wire strip in the vicinity of the padbolts.

Chief Inspector Simmons went on to say that there is now in use a type of vehicle which can seat two policemen at the rear of the cage outside the door. Prototypes of this sort of vehicle were being tried in 1974. At about that time there had been a police circular relating to prisoners getting themselves out of these cages and either getting injured or killed, but the witness was unable to say whether the circular was issued before or after the death of the deceased. There was no evidence that any of the individual defendants had read the circular.

On the question of handcuffs Chief Superintendent Simmons said that these were not on general issue at the time. Where they were issued they could be expected to be used when a prisoner was violent or when it was suspected that he might endanger his own life or where sufficient security to prevent the prisoner from escaping did not exist.

In the light of all this I am satisfied that on the night in question there was a reasonably foreseaable likelihood that the deceased, particularly in his state of intoxication, might try to open the door to the cage and that in so doing there was, particularly having regard to the rough surface of the road, a reasonably foreseeable danger that he would fall and sustain injury. Those likely contingencies could have been avoided by constructing the cage of the vehicle in such a way that the deceased could not be expected to open the door whilst the vehicle was on its way to the station. Contingencies of the same nature were in my view reasonably foreseeable by those members of the Police Force responsible for the design and construction of the vehicle and the precaution mentioned was one which was reasonably available at the time and in the circumstances. Failure to take such a precaution was a failure to take reasonable care for the safety of persons such as the deceased who were likely to be conveyed in the vehicle in its defective state and that failure amounts to negligence.

The question is however: are any of the defendants, including the State, liable for this omission? It was put on behalf of the plaintiff that the arresting constable, who was Petrus Mosa, the fourth defendant, was under a duty to exercise reasonable care for the safety of the deceased who was in his custody and a statement to similar effect in Howard and JarvisN262.html#_edn367" title="">[ccclxvii]² was relied upon. I acceps, his, but one must decide what is reasonable in the circumstances. The arresting constable and his colleagues had to make do whe vehicle and equipment supplied to them, they were quite inexperienced and the failure tore to get into the cage with the prisoner was not unreasonable in my view. None of them of course had anything to do with the design or construction of the vehicle. None of them was guilty of negligence towards the deceased.

I turn now to examine the liability of the State. Because of the view I have taken on the facts, it is necessary to give some attention to the distinction between personal and vicarious liability. In the common law countries there are two views as to the theoretical basis of vicarious liability. The older and orthodox view was that the employer is liable not for any breach by him of any duty owed to the plaintiff, but because of a legal fiction which attaches to him the liability for the tort of an employee committed within the course of employment. The more recent view is that the employer is liable because of a duty which is owed by him personally and it is the behaviour of the employee, not the liability, which is imputed to the employer. The more recent theory was first propounded in Twine v. Bean’s Express Ltd.N262.html#_edn368" title="">[ccclxviii]³ and was approved by the High Court of Australia in Darling Island Stevedoring & Lighterage Co. Ltd. v. Long[ccclxix]⁴ where on this aspellagar J.ar J. deliverlivered a powerful dissenting judgment. The view of Fullagar J. is supported by the learned authors of Glass and McHugh: The Liability of Employers in Damages for PersInjury (Law Book Co., So., Sydney 1966) for reasons which I find convincing. This court is of course free to disregard Australian decisions. It appears however that the majority decision in Darling Island Stevedoring & Lighterage Co. Ltd. v. LongN262.html#_edn370" title="">[ccclxx]⁵ reprs the common law as it s it was in England immediately before Independence came to Papua New Guinea. See Imperial Chemical Industries Ltd. v. ShatwellN262.html#_edn371" title="">[cccl[ccclxxi]⁶ per Lord Pe This court appl applies the common law as it was then unless it is inconsistent with the Constitution, or a statute or custom, or unless it is inappropriate tocircumstances of the country: Constitution, Scheduleedule 2.2 (1). Counsel did not submit that the common law was inapplicable or inappropriate.

It has been said that it is doubtful whether much is to be gained by an examination of the true basis of vicarious liability: (P.S. Atijah: Vicarious Liability in the Law of Torts, Melbourne, 1967, p. 7). However it seems to me that the distinction may be of crucial importance in the present case. If the law in Papua New Guinea is that “unless the servant is liable the master is not liable for his acts”, as it was put by Lord Pearce in Shatwell’s CaseN262.html#_edn372" title="">[ccclxxii]⁷, the present action might well fail. As the claim was originally pleaded it was sought to fix the liability of the State by reference to the negligent behaviour of the individual defendants. On my view of the facts there was no negligence on the part of those defendants.

However at the hearing the statement of claim was amended to include an allegation that the State provided the police with a motor vehicle “containing a lock-up cage in which prisoners were to be placed, which cage was unsafe and defective.” It is with regard to this allegation that I find the plaintiff is entitled to succeed against the State. The liability of the State arises from one of two bases. On the traditional view of vicarious liability the deceased would if he had lived had a cause of action against the State for the negligence, not of the remaining individual defendants, but for the negligence of other unidentified servants of the State, those responsible for the system according to which the individual constables carried out their duties and for the equipment available for them to do so. On the newer theory of the “master’s tort” the State can be regarded as having breached its personal duty to the deceased to take due care for his safety whilst he was in the custody of the police. The State like any corporate body can act or fail to act only through its servants or agents, whether they be identifiable or not.

Another submission put on behalf of the defendants was that the State is not liable for the act of a servant in the exercise or purported exercise of a discretionary power. The argument rests upon an assumption that the position of the State of Papua New Guinea in relation to the acts of its officers is the same as that of the Crown at common law. I express no view on that aspect. In any event the leading case at common law, Enever v. The KingN262.html#_edn373" title="">[ccclxxiii]⁸ was concerned wiability fory for a constable making a wrongful arrest. It is not concerned with negligence committed during the course of a lawful arrest. Moreover the gravamen of the present claim is that thte was negligent in the cone construction and use of the vehicle which was likely to pose a danger to the safety of prisoners travelling in it. The arrest merely provided the link, and a reasonably foreseeable one, whereby the negligence resulted in eventual injury. The doctrine of Crown or State immunity as exemplified in Enever v. The KingN262.html#_edn374" title="">[ccclxxiv]⁹ may or ma have a place in P in Papua New Guinea but it does not apply to the facts in this case.

Brief mention should be made of the further defence raised, namely that the deceased voluntarily ed the risk which led to hito his injury. I am not sure whether the submission is that the risk is shown to have been assumed by the deceased’s entering the vehicle (he had no choice) or by his opening the door but in any event it is necessary for the defendant to prove that the deceased made a decision to run the risk of injury at his own expense. The state of his sobriety makes such a decision highly unlikely. The defence of voluntary assumption of risk is an artificial one and is regarded widely as serving no useful function; but see Imperial Chemical Industries v. ShatwellN262.html#_edn375" title="">[ccclxxv]¹⁰. It makes the conduct of cases such as this unnecessarily complicated. It may have no place in the underlying law of Papua New Guinea. It fails in the present case.

I therefore find negligence established against the first defendant and the first defendant only. The next matter is whether the deceased contributed to his own injury by reason of his own failure to take reasonable steps for his personal safety. There can be no question that the deceased was guilty of contributory negligence. The onus is on the defendant. It is put on behalf of the plaintiff that it is possible that the door of the cage jolted open of its own accord because of the roughness of the road or by the deceased being thrown against it, or by the deceased holding on to the mesh and inadvertently dislodging the padbolts (both of them). These are remote possibilities and I find that the most likely explanation is that the deceased opened the door with a view to getting out of the vehicle. Although I am not satisfied that the deceased jumped or propelled himself from the vehicle, the action of opening the door was to my mind a clear example of a person failing to take care for his own safety.

Having decided that the deceased was careless for his own safety it is necessary for me to determine the extent to which damages should accordingly be reduced. In this regard s. 22 (5) of the Law Reform (Miscellaneous Provisions Act 1962) provides as follows:

“Where a person dies as the result partly of his own fault and partly of the fault of any other person or persons, and accordingly if an action were brought for the benefit of the estate under Part V of this Ordinance the damages recoverable would be reduced under Subsection (1) of this section, any damages recoverable in an action brought for the benefit of the dependants of that person under Part IV of this Ordinance shall be reduced to a proportionate extent.”

Subsection (1) of the same section provides that in respect of a claim by a person who suffers damage as the result partly of his own fault and partly of the fault of another person

“the damages recoverable in respect thereof 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.”

The interpretation placed on these provisions in sofar as they affect each other has in other countries led to the result that the reduction in damages to be awarded to the dependant relatives is the same as that which would have been applied if the action has been brought by the person injured if he had survived. This approach has been the subject of criticism on the basis that the relatives are being deprived through no fault on their own part. I am not prepared to depart from the traditional approach at this stage, particularly in the absence of argument on the point. I refer to the remarks of Kearney J. and he then was in Garaiju Moruwu v. Sabeme Uve & Anor.N262.html#_edn376" title="">[ccclxxvi]¹¹ and the need for investigation into the whole basis of the assessment of damages in fatal accidents in Papua New Guinea.

It may be that the action of eceased in opening the door as I have described was more directly connected with the deceaseceased’s injury than the failure to properly secure the cage, but the relative degree of causation is not the test. In considering what is just and equitable I take into account that the deceased was intoxicated and that he did not enter the cage voluntarily. In my view a just and equitable apportionment would reduce the damages payable to the deceased had he lived by twenty five per cent.

I turn now to the question of assessment of damages. In this regard I have the assistance of previous decisions in this Court and the former Supreme Court, relating to the principles to be applied in assessing damages for relatives deprived of financial support and I take the cardinal principle to be that adopted by Minogue C.J. in Mary Gugi v. Stol Commuters Pty. Ltd.N262.html#_edn377" title="">[ccclxxvii]¹² from a Privy Council decinaon namely:

“if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident he could reasonabve looked forward, what sums during that period would he prhe probably have applied out of his income to the maintenance of his wife and family?”.

I note that Kearney J. as he then was raised a doubt as to whether since Independence, Sch. 2.2 (1) warrants so restrictive an interpretation of the provisions of the statute. I would endorse His Honour’s view that Parts IV and V of the Law Reform (Miscellaneous Provisions) Act 1962 warrant the attention of the Law Reform Commission. See Garaiju Morowu v. Sabeme Uve & Anor.N262.html#_edn378" title="">[ccclxxviii]¹³

The deceased was aged about twenty-eight years at the date of his death. The plaintiff was about the same age as the deceased. They had been married about two years before the birth of their only child, a son named Paul. He was said to be about nine years old at the date of hearing, so he must have been about three years old at the date of the deceased’s death. The parties would then have been married for about five years.

Evidence was given by the plaintiff and other witnesses as to the degree of financial support provided by the deceased and enjoyed by the plaintiff and other persons who might be entitled to recover in this action. The deceased at the time of his marriage was working in a motor vehicle workshop as an “assistant”. The workshop was at Mesul in the Sina Sina district of the Simbu Province and the deceased remained working there for four years after the marriage. He then moved on to work at Chuave as a “mechanic” for a further year. After that he had a year or thereabouts with Simbu Coffee as a coffee buyer.

During the whole of this period of time the deceased earned about K100 per fortnight and gave half of this, that is K50.00, to the plaintiff. She says that she spent this entirely on food and clothing for herself, the child and the deceased. She remained living in her nearby village at Bolan and the deceased lived with her in the main, going out to work from there each day.

The periods of time as related by the plaintiff must be taken as approximate only and probably well overestimated. She said that after working for Simbu Coffee, the plaintiff took up a position with Dillinghams in Mount Hagen, again as a “mechanic”. This entailed a move to Mount Hagen where she and the deceased lived in a building made of bush material. During this time she says she still received K50 a fortnight from the deceased although his wage had increased to K120. The child appears to have been born during this period.

After about three years in Mount Hagen the family moved back to Masul which is near another village called Dinima which was then on the highway between Chuave and Kundiawa. The deceased had apparently made significant savings during his periods of employment and these he put into a motor vehicle repair business which he set up at Dinima. He was still conducting this business at the date of his death.

The nature, extent and financial aspects of the business were described by the plaintiff in general terms. Much of this evidence lay outside the personal knowledge of the plaintiff and amounts to hearsay in effect. However it was not objected to at the hearing and having regard to the duty of the Court to do the best it can to assess damages once the plaintiff’s loss has been established (see Kaka Kopun v. The Independent State of Papua New GuineaN262.html#_edn379" title="">[ccclxxix]¹⁴) I thought it desirable to hear the evidence and to assess the appropriate weight in due course. Evidence relating to the earnings of a deceased person in an action on behalf of his relatives or his estate should normally be proved by calling representatives of his former employer or producing documents from that source. In the case of a self employed person, particularly one engaged in “business”, in a conventional sense as contrasted with a subsistence farmer, there should be documents relating to liability for tax, wages paid to employees and so on. These are available on subpoena by either the plaintiff or defendant. In their absence, if properly subpoenaed, and from the point of view of the defendant, the Court is likely to take a more sceptical view of such evidence as was given by the plaintiff widow in the present case.

The plaintiff’s account was to some extent corroborated by a Mr. Kelaga who was one of the employees in the business. The plaintiff’s case was not assisted by her following the local custom of destroying the belongings of the deceased including his bank pass book and presumably other business documents. A general picture of the financial affairs of the deceased and his family appears. The deceased constructed a workshop adjacent to the then Highlands Highway at Dinima. It had an iron roof and walls of bush materials with a floor already concreted or ready for concreting at the time of death. Three men were employed there for two or three days a week. There were two or three vehicles there, undergoing repairs at any one time, and there was a turnover of about five vehicles through the workshop each week.

The plaintiff says that the deceased received K200 - K300 per vehicle, this including the cost of spare parts, oil and so on. He paid two part-time employees K30 per fortnight. The other employee, Karl, a brother of the deceased, was engaged in driving a P.M.V. as well as working in the workshop. If what the plaintiff says is correct the deceased was operating a very profitable business.

In addition to the workshop the plaintiff operated a P.M.V. or small bus. In fact he owned three vehicles, a sedan used for family purposes, a Landrover used in connection with the workshop, and a Landcruiser registered and operated as a P.M.V. The P.M.V. was driven by the deceased’s brother Karl, and he was paid K30 per fortnight for what appears to have been a demanding job as both driver and workshop mechanic. The cash takings from the P.M.V. averaged K50 per day, and a “single run” of the P.M.V. cost K30 for petrol, oil and other items. Again, it seems that whatever the precise position was, the deceased had a profitable business in the P.M.V., particularly as he was able to operate it in conjunction with the vehicle workshop.

All this information is of interest but its real relevance is only as background to the essential question of what economic support the relatives have lost as a result of the deceased’s death. As to the position as at the date of death, the plaintiff’s evidence is clear. Despite the apparent increase in the deceased’s wealth he still continued to give her K50 per fortnight right up until the date of his death. By this time however he was also buying his own clothes and at least some clothing for the plaintiff and the child. This contrasts with the earlier situation when the plaintiff was expected to provide for the clothing of the whole family out of the allowance paid to her by the deceased. The plaintiff estimated the contribution of the deceased, towards the clothing of herself and the child at K20 per month or K5 per week. She gave no estimate of what she spent on the deceased himself. I estimate the cost to the plaintiff of the deceased’s food and other items, taking into account the fact that the plaintiff tended a vegetable garden which would have substantially contributed to the family food requirements, approximated K7 per week. Accordingly I find that the financial support derived by the plaintiff and her son from the payments by the deceased at the time of his death was K23 per week.

The plaintiff at the time of the death also derived a financial benefit from the sale of coffee which was grown on land cultivated by her possibly with the assistance of the deceased. The coffee garden had been productive only in the last two years of the deceased’s lifetime. During that time the harvest each year was five bags yielding a price of K500 from which the plaintiff received K100. Since the death of the deceased the land “now goes back to his brother”, and the plaintiff does not share in the profits from coffee. The plaintiff says that she has gone to live with her brother at Bolan village. In this respect her evidence conflicts with that of the deceased’s mother Ilai Kolai, who lives at Masul and who says that the plaintiff still works on the land there and in fact the plaintiff may not leave “because of the grandson”. However the mother did not assert that the plaintiff is sharing in the income from coffee and I find that the plaintiff’s loss in this respect is K100 per annum or K2 per week.

The plaintiff now pays school fees for the son who is in grade two at Dinima Community School. The likelihood is that the deceased himself would have paid those fees and otherwise would have contributed to the education of the child and I propose to allow a further K2 to the estimated weekly loss for this factor.

That loss is in my view properly regarded as the loss of the plaintiff who will be the one who pays the school fees.

I propose to disregard the economic benefit which accrued to the plaintiff and the son from the vegetable garden. Similarly the disposition of the deceased’s business assets after his death are of no relevance in the present claim. I note that the workshop was demolished to make way for the new highway after the death of the deceased and the plaintiff says “we received compensation for it”. The relevance of these matters relating to the state of the deceased’s business and developments since his death is restricted to the light they may shed on the question of whether the relatives were likely to continue to receive the same or a different measure of economic support from the deceased during their lives if he had lived.

This is not a case for assessing the loss of income or of economic capacity of a wage earner, nor of a subsistence farmer, in respect of which these are developed and developing principles of law: see Kapa Kopun v. The Independent State of Papua New GuineaN262.html#_edn380" title="">[ccclxxx]¹⁵.

It is a cases involving what has recently been called a “rural capitalist”: see A. Amarshi and others: Development & Dependency, the political economy of Papua New Guinea, Melbourne 1979, (p. 109 and following).

The deceased who was in good health (as are the plaintiff and the son) had utilised his working experience and savings to set up a profitable P.M.V. and motor vehicle repair workshop. Yet his life style and that of the plaintiff were relatively unaffected. It would appear that the profits he made were likely to have been ploughed back into the business. The plaintiff continued to lead a village style existence, tending the garden and keeping house on much the same sort of money she had had from the deceased for years. Whether this parsimony on the part of the deceased would have continued is difficult to say. Mr. McWalters for the plaintiff has submitted that the deceased’s income was likely to have continued to increase and that allowance must be made accordingly by increasing the economic loss suffered by the plaintiff to K30 or K40 per week. I accept the first submission but in the light of the evidence, not the second. I further accept that the obvious industriousness of the deceased and the state of his business provided a measure of security for the plaintiff as far as her future was concerned. These matters will be allowed for when consideration is given to how far the award should be reduced for the “contingencies of life”.

If this were the case of an employee with a working history in an established enterprise which appeared to have a secure and profitable future it might be possible to to confidently predict continuing increases in the deceased’s income and the financial support accorded to his family. But it is not such a case. The deceased’s workshop business would not have carried on as it had done. It was apparently pulled down to make way for the new highway. He may or may not have been successful in a new venture elsewhere. Economic prospects for business in this country and in the world generally are I gather not as bright as they were regarded only a few years ago. I decline to make any allowance for future increases in the plaintiff’s financial support.

The common method, used for assessing the lump sum figure to be awarded in cases of this nature is to take the likely loss in respect of the dependent expressed over a period such as a week, then to determine the length of time, usually in years, over which the loss is likely to be sustained and then to arrive mathematically at a figure which if invested at an appropriate rate of interest and drawn on at the given weekly rate would be exhausted at the end of the given length of time. The end figure is then discounted for what are called “contingencies of life”.

For the purpose of determining likely length of dependency, Counsel’s submissions contained a table of life expectancy figures drawn up by Professor van de Kaa. These were accepted by both counsel. They seem to be in common use in the country at the present time. I had heard of them referred to in previous casesN262.html#_edn381" title="">[ccclxxxi]¹⁶ but had never seen ther ther the benefit of those in the same position as myself and so that the material on which the courts have acted in these matters may be generally known, I hablished these tables in a Schedule to this judgment.