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Wamel v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 22; N1002 (30 August 1991)

Unreported National Court Decisions

N1002

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 752 OF 1991
YUME WAMEL
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
19 August 1991
30 August 1991

NEGLIGENCE - Motor Vehicle Accident - Death - Claim by widow and children - Liability - dangerous system of work. Damages - Dependency claim - Wage earner.

Counsel

D.L. O’Connor for the Plaintiff

K. Yalo for the Defendant.

30 August 1990

WOODS J: The Plainti the widow of o of one Tange Koromba who was killed on the 19th August 1987 when he was working as a Works Department employee doing road maintenance on the Okuk Highway near Kundiawa. He was struck by a Highway Truck Registered No AEB 186. The Plaintiff sues on behalf of herself and her two children Waim Tange and Merry Tange.

Witnesses for the Plaintiff gave evidence that on the 19th August 1987 the deceased Tange Koromba a Chimbu Province Department of Works employee was with a team of workers doing road maintenance along the Okuk Highway about 5 kilometres out of Kundiawa on the way to Chuave. They were doing patching work on the bitumen paving. The team had erected a “Men at Work” sign to warn oncoming traffic that there were men at work on the Highway and they had also placed markers blocking off the part of the road they were actually working on. There was some doubts about how far before where they were working they had placed the warning sign, one answer said 2 metres although I doubted that when it was said but another estimate was about 150 metres. I am satisfied that the sign was placed at a reasonable distance away. The driver of the vehicle was not called to give evidence. I note that the section of Highway concerned was somewhere near the beginning of the long descent down to the Chimbu River before Kundiawa and any driver would have to take precaution in any regard because of the long descent and proceed slowly with full control.

The witnesses who were fellow workmen of the deceased say that as they were working they heard a truck coming down at some speed and they saw it knock over the warning sign and realising they were in great danger they scattered off the road they to the lower side of the road and the deceased to the upper side of the road when he tried to scramble up the bank but he slipped back and the Truck ran off the edge of the road over him and killed him.

The evidence is clear that only half of the road was blocked off for the work so it was always open to a vehicle to pass the working area on the other lane and there is no suggestion that there was other traffic coming up on the other lane. So it was always open to the truck driver to go across to the other lane to pass the road markers. The fact that he apparently lost control and ran down the road markers and went off the side suggests that the Driver was not driving with due care and attention let alone at an appropriate speed to take heed of the warning signs. I find no evidence that the road workers had themselves created a dangerous situation. All the evidence points to the Driver of the vehicle driving in a negligent fashion in the circumstances and the deceased took appropriate evasive action which was not successful. I therefore find that the driver of the vehicle and therefore the Motor Vehicles Insurance (PNG) Trust is liable in damages for the death of Tange Koromba.

ON DAMAGES

The Deceased was aged about 25 years at the time of his death and was married to Yume Wamel. There were 2 children of the marriage Waim Tange born in November 1983 and Merry Tange born in January 1987.

The deceased’s earnings as an employee of the Department of Works in Chimbu Province are not in evidence but his wife states he used to give her K55 each pay for the support of her and the children. She also assisted with growing vegetables in her garden and with a small coffee plot. I will therefore assess the dependency claim on the basis of the K55. given to the Plaintiff per fortnight and will apportion that at K17.50 per week to the wife and K5 each child per week.

The deceased was aged about 25 years at the time of death so he would have had about 30 years of working life ahead so I assess the loss for the widow at 30 years from 1989 to 2019. Counsel for the Defendant has submitted that being a roads maintenance laborer he may have been only a casual employee and therefore I should not calculate the dependency on the basis of continual employment. However, the defence has not produced nor elicited any evidence to suggest he was only a casual worker and actually in cross-examination one witness said the deceased had been working with him for 3 years. I am satisfied that the employment was sufficiently permanent to suggest that the deceased may have remained in some sort of employment till about 55 years. On the dependency of the two children who were aged 4 years and 6 months at the time of the death I assess the dependency to 16 years of age respectively.

I will reduce the wife’s claim by 10% to allow for contingencies such as early death or remarriage.

As the Plaintiff was entitled to the funds from the date of the issue of the writ I will allow interest at 8% from August 1990 to today.

Damages are assessed as follows: