N1075

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

REPAS WAIMA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

19 May 1992
1 July 1992

NEGLIGENCE - Death resulting from negligent driving of motor vehicle - Liability - Contributory negligence for riding in an uninsured vehicle.

DEPENDENCY CLAIM - Claim by widow of deceased and others - Whether parents, parent-in-law, sister and brother qualify as dependents.

PRACTICE AND PROCEDURE - Pleading under Order 8 r 33 is a code of pleading - Failure to plead relevant matters - Need to plead deceased's employment and salary details before they can be brought into evidence - Pleading in dependency claims - Assessment of damages.

Facts

The plaintiffs husband was killed in a motor vehicle accident caused by the negligent driving of the driver. The registration and insurance of the vehicle had expired at the date of the accident.

The plaintiff claimed against the insurers on behalf of herself, her son and parent and the deceased's parents, brother and sister as dependents.

Held

1. The expiry of the registration and insurance did not affect the status of the claim under s 54 of Motor Vehicles (Third Party Insurance) Act.

2. People must accept some responsibility for accepting rides on vehicles that are unregistered and uninsured, and a person who rides on such a vehicle and is injured is contributorily negligent.

3. There is an obligation in society by custom or purely family love for a son who is in a wage or salaried employment to assist his parents and as they get older such assistance could become total dependency.

Cases Cited

Papua New Guinea cases cited

Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580
Oroeala v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645
Wally v Motor Vehicles Insurance (PNG) Trust (1991) unreported N1029

Other cases cited

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
Chan Wai Tong v Li Ping Sum [1985] AC 446
Hayward v Pullinger & Partners Ltd [1950] 1 All ER 581

Counsel:

P Kopunye for the plaintiff
A Kandakasi for the defendant

1 July 1992

WOODS J: This is a claim by the plaintiff for damages following the death of her husband Simon Waima, who was killed in a motor vehicle accident near Tambul in the Western Highlands on 4 November 1989. The plaintiff is claiming damages on behalf of herself and their son and the parents and sister and brother of the deceased and her parents. 

It is alleged that the death was caused by the negligent driving of one Punere Kini Winip of a Toyota Hilux utility registered number ALA 989 whereby the vehicle ran off the road and overturned. It is alleged that the driver was driving too fast for the condition of the road.

REGISTRATION AND INSURANCE OF THE VEHICLE

It became apparent from the evidence that there was some confusion about the status of the registration of the vehicle. The investigating officer noted from his enquiries that the vehicle had been registered in the North Solomons Province and the expiry date of the registration was 17.10.89 and the owner was a person from Tambul. However, the defendant Trust brought evidence that the registration had expired in October 1987 and the registered owner was a company in North Solomons. The evidence brought by the defendant about the ownership and insurance of the vehicle contradicted the evidence of the police officer. Whatever the situation was, the registration and, therefore, insurance may have lapsed at the time of the accident. However, I do not see that this affects the status of the claim against the Trust, as the wording of the claim is wide enough to bring it within s 54 of the Motor Vehicles (Third Party Insurance) Act. Section 54 provides for claims to be brought against the Trust both as regards insured vehicles and uninsured vehicles. If the vehicle was uninsured at the time of the accident, it is nevertheless identified and the driver is identified.

LIABILITY AND NEGLIGENCE

The plaintiff brought witnesses who said they were with the deceased on 4 November in the subject utility when it was going down a hill out of Tambul too fast and ran off the road and overturned. They said they were on the back with Simon and they received injuries and Simon was killed. The investigating officer did not attend the scene until the next day. In spite of the challenge to his enquiries about the registration and insurance of the vehicle, I see no reason to doubt his report as to how the accident happened and his conclusion that the driver was negligent and should, therefore, have been charged with dangerous driving causing death. The defendant has submitted that I should be in doubt as to whether the accident involving the vehicle happened at all as all the witnesses to the accident are relatives of the deceased. There is no evidence before me to suggest that, apart from the confusion over the registration; and I find that the confusion is not enough to dispel the stories given to me about the accident. I am satisfied on the evidence before me that there was an accident involving a Toyota Hilux registered number ALA 989 which resulted in the death of Simon Waima, and that there was negligence in the driving of that vehicle which led to the accident.

The defendant further submits that, if there was an accident as alleged, the deceased was partly negligent in accepting a ride on an uninsured vehicle and riding on the back of a vehicle without safety features for the protection of people on the back. With respect to riding on an uninsured vehicle, people must accept some responsibility for accepting rides on vehicles that are not registered and thereby not insured. If people are prepared to accept the benefits of motor vehicles, they must, therefore, accept the responsibility. Current registration and, therefore, insurance means that a vehicle has been passed as being safe for use upon the road. The converse can imply that the vehicle has not been passed for safe use upon the road. All vehicles carry an appropriate sticker, fixed in a place for all to see, which clearly indicates the present state of the registration. People must accept the responsibility to themselves to understand those stickers. I find that a person who rides in a vehicle that is not registered, and therefore not also insured, must accept some responsibility for any injuries they incur. I, therefore, find some contributory negligence in the deceased.

With respect to contributory negligence for riding in the back of a utility, I find that the death of the deceased was not contributed to by the riding in the back without safety features but by the manner of the driving of the vehicle. Whilst the authorities, which includes the defendant, condone by inaction the riding in the back of utilities without seats and appropriate safety features, I cannot find such passengers partly negligent without special aspects of the riding in the back such as found in the case of Wally v Motor Vehicles Insurance (PNG) Trust N1029 and in the case Oroeala v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645.

The contributory negligence for riding in an uninsured vehicle I assess at 40%.

DEPENDENCY

According to the statement of claim as amended, the plaintiff is claiming on behalf of herself and her son and the deceased's parents and brother and sister and her own parents.

With respect to the deceased's parents, the defendant submits that there is no evidence to support their dependency on the deceased. The father gave evidence that each fortnight his son used to give him and his wife some money totalling about K12. The evidence is not clear that the parents actually depended on that money to live as they had their own gardens and managed their own subsistence living, rather it appeared to be a family obligation accepted by the son because he was in salary-earning employment. The father did say in evidence that he expected his son to help him. I am satisfied that there is an obligation in the society, whether by custom or purely family love, for a son who is in wages or salary employment to assist his parents and that, as the parents get older, such assistance could become total dependency. I am satisfied in this case that this obligation and future dependency did exist and that, therefore, the parents can be included in the dependency claim.

With respect to her own parents, the father gave evidence that the deceased occasionally when he visited would give them a small amount of money. He gave evidence that they had their own garden, and the implication was that her parents were self sufficient in their village and did not depend on the deceased for their living. I am not satisfied in the circumstances that there is a dependency claim made out in favour of the plaintiffs parents.

With respect to the claim for the sister of the deceased, I am not satisfied that there was any dependency here. The sister is now married and before the marriage was totally dependent on the parents. I also find that there is no evidence of any dependency of the brother, rather the brother was still dependent on the father - and, in so far as the brother got any benefit from the deceased, it was through the assistance given by the deceased to his father.

The plaintiff is claiming the dependency loss on the basis of the employment and income the deceased earned before his death. The defendant has objected to the evidence of the employment and salary of the deceased as these matters were not pleaded in the statement of claim. The defendant refers to Order 8 r 33, which requires that certain particulars are to be given in death or personal injuries cases. This rule uses the word "shall". It is submitted that the particulars to be listed provides a complete code of the matters which must appear in a personal injuries or dependency statement of claim. These matters become more than mere particulars but are matters that must be pleaded. These matters then become the facts on which the plaintiff relies for the, in this case, dependency claim. The details of the deceased's employment and salary are matters vital to the calculation of the dependency loss and are, thus, akin to the particulars required in a personal injuries claim of wages and salary. They have the same character as claims of special damages. The authorities are quite clear that claims for special damages are not recoverable unless pleaded. See the case Hayward v Pullinger & Partners Ltd [1950] 1 All ER 581 per Devlin J: 

"It is conceded by counsel for the plaintiffs, and I think rightly, that he cannot recover in respect of any special damage unless that special damage is pleaded.... It is, of course, extremely common, when damage is alleged in general terms, for an application to be made to obtain particulars of the special damage, if any, relied on, but there can be no obligation to ask for such particulars, and I think the true position is that, unless they are contained in the statement of claim, evidence leading to damage in respect of which damages are claimed cannot technically be relied on at the trial."

In Collins v Motor Vehicles Insurance (PNG) Trust [[1990] PNGLR 580], the Court disallowed a dependent child from recovering any damages where the pleading did not mention her name.

In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries [1951] 1 All ER 873, Devlin J touching on the objects of pleading said at 875 that one of the objects of pleading special damage and giving particulars of the special damage is to enable the defendant to know what is really being claimed so that he may, if he so desires, make a payment into court.

When talking about special damages we are usually thinking of such things as out-of pocket expenses and loss of income to date. Future economic loss does not ordinarily fall into that class, but the defendant submits that, by virtue of Order 8 r 33(1)(g) ("details of each item of special damages claimed, including wages and other economic loss, both present and future"), future economic loss in a dependency claim does fall into the same class as special damages in order to give fair notice to the defendant. 

It would seem that in death or personal injuries cases the Rules of the National Court have created an obligatory code of pleading which have the effect of giving the defendant due notice of all matters claimed and the basis of such claims which would thereby enable a defendant, in the words of Devlin J referred to above, "to know what is really being claimed so that he may, if he so desires, make a payment into court". Such a code of pleading also obviates the need for further pleadings, which create unnecessary expense, and thus ensures that such claims can be got to trial expeditiously. Perhaps what their Lordships in the case Chan Wai Tong v Li Ping Sum [1985] AC 446 consider as good practice is what the Rules of the National Court have made into a Code of Pleading. As was stated by Lord Fraser at 459:

"The third question is whether the Court of Appeal was entitled, in the circumstances of this case, to make an award for loss of future earning capacity. This item of loss was not pleaded... There is some authority for the view that loss of future earning capacity is included in general damages and does not need to be specifically pleaded... It may be that it is not essential to plead this head of damages, but their Lordships consider that as a matter of good practice it ought, as a general rule, to be pleaded in order to give fair notice to the defendant."

I am satisfied that the Rules of Court do provide a Code of Pleading for the more expeditious handling of such cases and that the particulars required to be pleaded under Order 8 Rule 33(1)(g) do include those details that provide the basis for the calculation of the loss of dependency. In a dependency case like the one before me now, they would include the details of the deceased's age, employment and salary. This means that, in the case before me now, the evidence of the deceased's occupation and salary cannot be brought into evidence because it relates to matters not pleaded.

So where does this leave the plaintiff? I will exercise my discretion in the interests of justice to consider the evidence she has given of how much she received from the deceased for her maintenance and the support of her family, as the amounts she has given are not unreasonable. Instead of analysing the deceased's real salary, I will base the dependency loss on what the plaintiff says she received. She stated that the deceased used to give her K70 per fortnight, which means K35 per week, which I will apportion to K25 per week to the wife and K10 to the son. Whilst there was reference to a trade store, there are no verified figures to support such a business. The deceased was aged about 25 at the time of his death. I will, therefore, allow a dependency for 30 years for the widow. The son, Samuel, was aged 3 years at the date of his father's death, and I will allow for a dependency till age 18 years. There are contingencies to consider and the widow is still fairly young and only has one child, so I will reduce her allowance by a contingency of 25%. I will allow a contingency of 5% on the child on future loss. 

I will accept that his parents received and were entitled to expect about K3 each per week from their son, so I allow for that for a period of 15 years only, as there is no suggestion that they would continue to live till their son was 55 years. I allow a contingency reduction of 25% on that.

The statement of claim made no claim for interest.

Damages are assessed as follows:

Loss to date of judgment being 2 years 29 weeks is K3,325 for the plaintiff; K1,330 for the son, Samuel; and K399 for each of his parents.

FUTURE LOSS IS

	Year Depend.	Est. Econ. Loss	Multiplier	Total	Less Conti n.	
Plaintiff	27 1/2	25	983	24,575	25%	
Samuel 	12	10	527	5,270	5%	
Waima Yugg	15	3	632	1,896	25%	
Nanolis	15	3	632	1,896	25%	

Future Loss	Past Loss	Total	Basic Prot. & Cust. Pay	Total	
18,431.25	3325.00	21,656.25	2,800	18,856.25	
5006.50	1330.00	6,336.50		6,336.50	
1421.25	399.00	1,820.25	500	1,320.25	
1421.25	399.00	1,820.25		1,820.25	
				K28,333.25	

Less 40 percent contributory negligence.

I order judgment for K16,999.95.

I order that the plaintiffs share of this is K11,313.75.

I order that an amount of K792.15 be paid to Waima Yugg, the father of the deceased. I order that an amount of K1,092.15 be paid to Nanolis Waima, the mother of the deceased.

I order that the balance of K3801.90 be paid to the Registrar to be invested on behalf of Samuel Waima until he attains the age of 18 years on 30 August 2004. The Registrar may apply up to K400 each year out of Samuel's money for his education and maintenance. Such monies are to be paid to the school concerned and to the mother.

______________________

Lawyer for the plaintiff: Kopunye Lawyers
Lawyer for the defendant: Young & Williams