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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 693 OF 2004
ROBERT WANDOKUN
Plaintiff
V
MANASE LEEMAN
First Defendant
MADANG PROVINCIAL GOVERNMENT
Second Defendant
Madang: Cannings J
2014: 4 December,
2015: 16 February, 21 April
DAMAGES – negligence – death of 10-year-old boy in car accident – claim by father against negligent driver and driver's employer – assessment of damages after liability established at trial.
The plaintiff succeeded at an earlier trial in establishing liability in negligence against the defendants regarding the death of his 10-year-old son who was killed when a motor vehicle driven negligently by the first defendant (the second defendant's employee) struck the boy as he was standing on a footpath. At this trial on assessment of damages the plaintiff claimed: (1) general damages of K70,000.00, comprising (a) loss of life expectancy, K40,000.00; (b) future economic loss, K20,000.00 (c) pain and hardship K10,000.00; (2) special damages K7,400.00; and (3) solatium, K10,000.00.
Held:
(1) General damages were assessed as follows: (a) the claim for loss of life expectancy was regargded as an estate claim and K8,000.00 was awarded; the claim for future economic loss was regarded as a dependency claim, to compensate the plaintiff for the loss of support his son would reasonably have been expected to provide to him and K31,200.00 was awarded; (c) the claim for pain and hardship would fail under the common law, however that law was determined to be inapplicable and inappropriate to the circumstances of the country and disregarded and K10,000.00 was awarded. The total amount of general damages was K49,200.00.
(2) Special damages (funeral expenses) were assessed, after taking into account the substantial personal contribution of the first defendant and the lack of clear evidence of expenditure, as K5,000.00.
(3) Nothing was awarded as a solatium, as compensation for the suffering caused to the plaintiff by the death of his son was included in the award for pain and suffering.
(4) The total award of damages of K54,200.00 was apportioned as follows: first defendant, K18,000.00; second defendant, K36,200.00.
(5) In addition interest was awarded, calculated from the date of entry of the judgment on liability to the date of the judgment on damages, at the rate of 8% per annum, of K2,160.00 against the first defendant and K4,344.00 against the second defendant.
(6) The total awards of damages and interest were K20,160.00 against the first defendant and K40,544.00 against the second defendant.
(7) The second defendant was ordered to pay the plaintiff's costs of the trial on assessment of damages due to its failure over a long period to cooperate with the Court and the parties in expeditiously resolving the case.
Cases cited
The following cases are cited in the judgment:
Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Inabari and Another v Sapat and The State [1991] PNGLR 427
Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106
Koko v MVIT [1988] PNGLR 167
Makire Napiri v The State (2006) N2976
Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979
Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
TRIAL
This is a trial on assessment of damages for death of a child in a motor vehicle accident.
Counsel
D F Wa'au, for the Plaintiff
G Pipike, for the First Defendant
21st April, 2015
1. CANNINGS J: This has been a trial on assessment of damages. The plaintiff, Robert Wandokun, succeeded at an earlier trial in establishing liability in negligence against the defendants regarding the death of his 10-year-old son, Michael Wandokun. Michael was killed on the morning of 14 November 2002 when a motor vehicle driven negligently by the first defendant, Manase Leeman, collided with him as was walking on a footpath on Modilon Road, Madang, on his way to school. Mr Leeman was at the time driving a vehicle belonging to his employer, Madang Provincial Government. At the trial on liability, which concluded with an oral judgment given on 27 September 2013, Mr Leeman was found directly liable and the Provincial Government was found vicariously liable.
CLAIM
2. The plaintiff claims three categories of damages:
(1) general damages of K70,000.00, comprising (a) loss of life expectancy, K40,000.00; (b) future economic loss, K20,000.00 (c) pain and hardship K10,000.00;
(2) special damages K7,400.00; and
(3) solatium, K10,000.00.
The total claim is K87,400.00 plus interest and costs.
RESPONSE
3. As was the case with the trial on liability, only the first defendant was represented at this trial on assessment of damages. Mr Pipike appeared for the first defendant and submitted that the following awards should be made:
(1) general damages of K7,160.00, comprising (a) loss of life expectancy, K3,000.00; (b) future economic loss, K4,160.00 (c) pain and hardship 0;
(2) special damages K5,000.00; and
(3) solatium, K300.00.
4. Mr Pipike thus submitted that the total award should be no more than K12,460.00. He added, however, that in fact the first defendant should not be ordered to pay any of that amount as he contributed K12,900.00 in cash and kind to the plaintiff and his family for funeral expenses in 2002. Mr Pipike also submitted that the second defendant should be ordered to indemnify (pay back) that amount to the first defendant.
1 GENERAL DAMAGES
(a) Loss of life expectancy
5. The plaintiff claims K40,000.00 in respect of his deceased son's loss of life expectancy. I regard this as an estate claim under Section 34(1) of the Wrongs (Miscellaneous Provisions) Act, which ensures that if a person dies his or her estate can be sued or can sue, as if the person had not died. Section 34(1) states:
Subject to this section, on the death of a person ... all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate. [Emphasis added.]
6. For many years the conventional sum to award for this head of damage has been K3,000.00 (Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78 at p 88). In Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106 I awarded a more realistic figure of K6,000.00. It is time to increase it again. The declining value of the Kina and the interests of justice require that in this case I award K8,000.00.
(b) Future economic loss
7. I regard this as a dependency claim. Mr Wa'au submitted that the plaintiff and his family should be compensated for the loss of his son's assistance in contributing to the maintenance and welfare of the family. He submitted that a sum of K20,000.00 should be awarded, however he provided no basis for calculation of this amount.
8. Mr Pipike did not object in principle to an award for this category of damages but submitted that only a modest amount should be awarded due to defects in the pleadings.
9. I agree with both counsel that it is proper to award damages to compensate a parent for the loss of financial support that would reasonably be expected to have been provided by their child, had the child not died. I explained in cases such as Makire Napiri v The State (2006) N2976 and Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979, why this is a proper claim; and why I respectfully consider that the approach taken in cases such as Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167 and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645 – that parents should not be regarded as dependent on their children and should not be awarded damages for a dependency claim – to be unjust and inappropriate to the circumstances of Papua New Guinea.
10. The plaintiff has established a prospective dependency on his deceased son. I find, on the facts, that the plaintiff would have become partially dependent on his son upon his son attaining the age of 21 years and that this would have been the case until the plaintiff died. These are difficult calculations to make and must by necessity be based on a number of assumptions, including the dates of birth of the plaintiff and his deceased son.
11. As for the plaintiff's deceased son Michael, he was 10 years old on the date of his death, 14 November 2002, so I deem his date of birth to be 14 November 1992 and the date of his 21st birthday to be 14 November 2013. As for the plaintiff, I have viewed him in Court and on the basis of that view and the evidence presented at the earlier trial and this trial, I will invoke Section 63 (age) of the Evidence Act, which states:
In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.
12. I estimate and determine that on 14 November 2013 the plaintiff would have been 45 years old. I accord to him a life expectancy of 65 years, which means that he is entitled to damages to compensate him for the loss of the expected contribution that the late Michael would have made to his and the family's welfare over that 20-year period. In Napiri and Komba I applied the sum of K20.00 per week. That was ten years ago. I will apply K30.00 per week in this case. This is a modest and reasonable sum. The amount awarded is:
K30.00 per week x 52 weeks x 20 years = K31,200.00.
(c) Pain and hardship
13. Mr Wa'au submits that K10,000.00 should be awarded. Mr Pipike submits that K300.00 should be awarded, in view of Section 29 (solatium to parents of child wrongfully killed) of the Wrongs (Miscellaneous Provisions) Act, which, he argues, limits the amount awarded to K600.00 for both parents. He argues that as the plaintiff has commenced this action only on his own behalf, he should only get half the maximum of K600.00. I reject Mr Pipike's submission, which reflect the conventional approach to the interpretation of Section 29, an approach which I have decided, on reflection, is unjust and inappropriate to the current circumstances of Papua New Guinea. Taking into account the constitutional imperative that under Section 159 of the Constitution, when interpreting the law, the Courts must give paramount consideration to the dispensation of justice, I have decided that Section 29 must be read down so as to not constrain the power of the Courts to award damages to a plaintiff to compensate him for the losses he has sustained as a result of the wrongful conduct of a defendant.
14. It is difficult to imagine a greater loss than that suffered by a parent when his or her child dies to the wrongful conduct of another person. It is often said that this sort of loss cannot be quantified. But surely the law must step in to say that the parent must be compensated with something in monetary terms that signifies the inevitable grief and loss that in very real terms have been incurred.
15. Having found that Section 29 is inapplicable, there is another obstacle, however, in the way of awarding the plaintiff a reasonable sum. The common law, which was adopted as part of Papua New Guinea's underlying law at Independence, has traditionally decreed that when awarding damages in a dependency action such as this one, the plaintiff does not get compensation for the loss of a child's love or affection (Koko v MVIT [1988] PNGLR 167). The purpose is said not to be compensation for the grief suffered due to loss of a loved one. In a dependency claim general damages are awarded primarily for the loss of pecuniary benefits which the parent might reasonably have expected to enjoy if the deceased had not been killed.
16. I find that the common law approach is unjust and callous and inappropriate and inapplicable to the current circumstances of Papua New Guinea. It does not comply with the requirements for its application under Section 4(3) of the Underlying Law Act and must be disregarded. It is consistent with the customary laws of Papua New Guinea for a parent whose child has died due to the wrongful actions of another person to be compensated for the emotional loss and grief he has incurred – not just the monetary losses – as a direct result of those wrongful actions. The plaintiff seeks a modest and reasonable sum of K10,000.00 and I award that sum.
2 SPECIAL DAMAGES
17. Section 28(2) of the Wrongs (Miscellaneous Provisions) Act specifically provides for funeral expenses. In Inabari and Another v Sapat and The State [1991] PNGLR 427 Salika J explained how a reasonable figure should be assessed, having regard to the normal costs and customary obligations that are generated by a death in PNG.
18. The plaintiff claims K7,400.00 It is acknowledged that the first defendant contributed K12,900.00 in cash and kind to the plaintiff and his family for funeral expenses in 2002. Having weighed the evidence and the submissions of counsel, I determine that a reasonable figure is K5,000.00.
3 SOLATIUM
19. This claim is made under Section 29 of the Wrongs (Miscellaneous Provisions) Act, the provision that I have found to be inapplicable. Nothing is awarded, as compensation for the suffering caused to the plaintiff by the death of his son has been included in the award for pain and suffering.
SUMMARY
20. The following amounts of damages are awarded:
(1) general damages of K49,200.00, comprising (a) loss of life expectancy, K8,000.00; (b) future economic loss, K31,200.00 (c) pain and hardship K10,000.00;
(2) special damages K5,000.00; and
(3) solatium, 0.
Total = K54,200.00.
APPORTIONMENT
21. Taking into account the level of cooperation with the Court and the plaintiff of each of the defendants (the first defendant has been cooperative, the second defendant has not) and their expected capacity to pay the total award of damages of K54,200.00 will be apportioned as follows: first defendant, K18,000.00; second defendant, K36,200.00.
INTEREST
22. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest will be calculated in respect of the period from the date of entry of the judgment on liability (21 October 2013) to the date of this judgment, a period of 1.5 years, by applying the formula D x I x N = A, where: D is the amount of damages assessed, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus:
COSTS
23. I will order the second defendant, Madang Provincial Government, to pay the plaintiff's costs of this trial, as it has failed over a long period to cooperate with the Court and the other parties in expeditiously resolving the case.
ORDER
(1) The first defendant shall pay to the plaintiff damages of K18,000.00 plus interest of K2,160.00, being a total judgment sum of K20,160.00.
(2) The second defendant shall pay to the plaintiff damages of K36,200.00 plus interest of K4,344.00, being a total judgment sum of K40,744.00.
(3) The second defendant shall pay the plaintiff's costs of and incidental to the trial on assessment of damages on a party-party basis, which shall if not agreed be taxed.
Judgment accordingly.
__________________________________________________________________
Meten Lawyers: Lawyers for the Plaintiff
GP Lawyers: Lawyer for the First Defendant
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