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Woolcott v Nivani Ltd [2025] PGNC 230; N11389 (25 July 2025)

N11389

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1173 OF 2017

BETWEEN:
MARSHA WOOLCOTT
First Plaintiff

AND:
RHYS WOOLCOTT- BY HIS NEXT FRIEND MARSHA WOOLCOTT
Second Plaintiff

AND:
JAIDEN WOOLCOTT- BY HIS NEXT FRIEND MARSHA WOOLCOTT
Third Plaintiff

AND:
LEWANA WOOLCOTT- BY HER NEXT FRIEND MARSHA WOOLCOTT
Fourth Plaintiff

AND:
NIVANI LIMITED
Defendant

2025: 25 July 2025
COATS J;

DAMAGES – expert evidence – forensic accountants - requirements – no expertise – death - heads of damages.

Cases cited
Gunambo v Upaiga [2010] N3859
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mel v Pakalia (2005) SC790
PNG Ports Corporation Limited v Islands Salvage and Towage Limited [2009] N3780
Yambaki v Namues [2022] N9983

Counsel
Konena A & Giyomatala D, for the Plaintiffs
Purvey G & Painap L, for the Defendant

25 July 2025

DECISION

1. BY THE COURT: Mr Stephen Woolcott (the Deceased) died in an industrial accident on board a barge, the MV Collosus (the Barge), owned and operated by the defendant company.
   
2. He was part way through a three year contract, engaged by the defendant on a consultancy basis as the company’s shipping manager.
   
3. On 26 November 2014, with the barge landed at Karavia in East New Britain, the Deceased and others were working on and in the Barge preparing for its passage to Port Moresby.
   
4. At about 1pm, the Deceased was found unconscious with other workers in a tank of the Barge, and, due to lack of air, there were difficulties in extracting them from the enclosure.
   
5. The plaintiff, wife of the Deceased, was informed at about 2pm of the accident and she arrived at the Barge 15 minutes later.
   
6. Another vessel could not render assistance because it did not carry emergency breathing equipment.
   
7. By about 3pm, divers from a dive business (actually owned by the Deceased and the first plaintiff,) using their diving gear to breath, extracted the Deceased and five others from the tank.
   
8. They were transported to Nonga Base Hospital, but the Deceased was declared dead on arrival.
   
9. The cause of death was brain anoxia brought on by cardiac pulmonary arrest due to asphyxiation because lack of air in the tank.
   
10. Liability by Nivani has been determined, and this is an assessment of damages.
    
11. The damages are for the deceased's wife and the three children, Rhys born 18 October 2006, now aged 19, Jaiden born 30 November 2008 now aged 16 and Lawana born 15 August 2011, now aged 13.
    
12. At the time of the accident, they were aged 7, 5, and 2, respectively.
    
13. The plaintiff’s damages lie for negligence in failing to provide a safe workspace, breach of statutory duties under the Industrial Safety Health and Welfare Act, Merchant Shipping Act and Merchant Shipping (Safety) Regulation and the Code of Safe Working Practise for PNG Seafarers, as well as breach of duties and responsibilities implied under a management agreement.
    
14. Her action is for damages suffered by herself and the three children and is allowable pursuant to sections 25, 26 and 27 of the Wrongs (Miscellaneous Provisions) Act 1975.
    
15. She seeks damages for reasonable funeral expenses, past loss of expected financial benefit, future loss of expected financial benefit, past loss of expected domestic services, future loss of domestic services, loss of care and guidance and cost of fund management. As well she claims general damages for pain and suffering, medical and treatment expenses and damages for loss of income/earning capacity.
    

PRELIMINERY ISSUE

16. A preliminary issue arose – the defendant objected to parts of the plaintiff’s evidence, in particular, reports labelled as expert reports in relation to accountancy evaluations of various losses.
    
17. The defendant contends that the evidence does not reach that standard where it is classified as requiring an expert, and, that an assessment of damages does not require expert evidence.
    
18. The evidence said to be expert falls into two general areas:
    

(a) Evidence for the alleged loss for financial dependency and domestic services, and
(b) Evidence related to costs of funds management for the three children.

19. The evidence going to financial dependency is contained in two reports from two people, Kain Elsmore of Vincents Chartered Accountants, in Brisbane, Australia, and Mr Sinton Spence of Sinton Spence Accountants, Port Moresby.
    
20. The evidence going to funds management is contained in a report of Julia Bossert, a chartered accountant of Vincents Chartered Accountants based in Adelaide, Australia.
    
21. A further issue also arose as to the admissibility of expert evidence in PNG.
    
22. Whether expert evidence is admitted under common law procedures permitting any witness who can give cogent and relevant evidence to a court on the fact-in-issue, or whether court rules govern such evidence, such evidence has essential elements.
    
23. The court was told there are no specific rules in the PNG jurisdiction, both parties here referring to the decision of Makail J in PNG Ports Corporation Limited v Islands Salvage and Towage Limited [2009] PNGC 166; N3780, when determining a damages question on the durability of the rubber fenders, said that: “34....Such evidence should come from an expert in the field of marine engineering and even if Mr Patlo is an expert, he does not state his qualification, experience and expertise in order for the Court to safely rely on his opinion as to the durability of the rubber fenders.
    35. There seems to be some merits in the contention of the Defendant. I agree with the submission of the Defendant’s counsel that in respect of the law on calling of expert evidence. At p 10 of his written submissions, he refers to a text - Evidence, Commentary and Materials, Law Book Co (5th ed 1998) Waight K P and Williams R C at p 649, where the learned authors described an "expert witness" as: "There are thus two essential preconditions to be fulfilled for a person to qualify as an expert; (a) is the subject matter of the witness’s evidence an area for expert evidence; and (b) is the witness actually skilled through study and/or experience in that area? Precondition (a) probably depends on a number of factors which include (i) whether the matter is one which lies within a filed of expertise (that is, a subject of special study or knowledge), although whether the theory of the expert need to have some measure of acceptance or should be sufficiently reliable has not been resolved by the Courts; (ii) whether the matter is one in which the jury could derive assistance from and expect, as opposed to a matter of common knowledge with the jury could equally well determine for themselves; and (iii) whether the expert’s opinion is founded on rational and demonstrable criteria or whether it merely conjectural."
    
24. That statement is not far removed from a leading case in Australian jurisprudence, determined by the NSW Court of Appeal and often referred to, being Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
    
25. In that case, Heydon JA stated: “In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414 (at 428), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise.”
    
26. The Federal Court of Australia, in its rules, takes a different view, that evidence, expert or not, must be admissible, although the approach taken in Makita lays down the specific test for being expert.
    
27. Allied to the qualifications of the expert, is that, as stated in PNG Ports above, the evidence must be of a nature as to require an expert.
    
28. In that case, the expertise went to a question of durability of the rubber fenders, not to a question of the substance of the fenders, being rubber, which would appear to be identifiable by a witness without expert qualifications.
    
29. So the initial question is, does the subject matter addressed by the experts require their expert opinion. If the answer is in the negative then there is no need to determine the difficult question of expertise.
    
30. That can be determined by the nature of the evidence being addressed.
    
31. The assessment of damages under the various specific headings is not necessarily an expert’s assessment and may well be a simple mathematical calculation or estimate, once a proper head of claim is established.
    
32. As to a head of damage, such as loss of income, however that is described, a knowledge of earnings of the deceased has to be known, but whether an expert mathematical calculation is required would depend on the specific issues before the court.
    
33. That being said, there is nothing to stop a plaintiff using an accountant to put the figures before the court, and besides the claim of being expert, that is what has occurred here.
    
34. The defendant, objecting to the requirement of expert accountancy figures, submitted that the so-called expert evidence went to an assessment of loss of income from the point of view of notional loss, but since the deceased had not worked for the shipping company for very long, and otherwise had no experience in international trade, the expert’s evidence was not qualified, because it could not be known that that the deceased would maintain his position after the ending of his three year contract.
    
35. The essence of the objection to the accountancy evidence of the plaintiff is that firstly, it is not necessary, and secondly, after cross-examination was completed, not evidence which is admissible, but if it is, is not helpful.
    
36. The report by Mr Elsmore states it is a forensic report on loss of dependence and loss of domestic personal services.
    
37. The report was questioned on its assumptions, that the deceased would have continued to derive earnings commensurate with those in his position with the defendant company, and continuing to work for the company after his three year contract.
    
38. Mr Elsmore broke his calculations into two segments, the first being that he would remain with the defendant company and the second being that he would not – possibly returning the dive business he and his wife operated.
    
39. He also assumed that he would have continued work until the age of 70, and supported the children to the age of 21.
    
40. He then calculated the loss of financial support/dependency which would have been earned but for the death, and these, as stated, were notional earnings.
    
41. His evidence differed in some respects from that of Mr Sinton Spence, of the Port Moresby firm Sinton Spence Chartered Accountants.
    
42. Expertise, time and again, is some special knowledge of the special field in which a fact-in-issue arises in a trial, on some question arising about the determination of the fact which either is not knowable or cannot be knowable on mere observation.
    
43. But for all the expense and all the paper generated for this hearing, a piece of evidence stood out.
    
44. At paragraph 5.8(v) of his affidavit filed 5 July 2019, Mr Elsmore states: “Mrs Woolcott Instructs that whilst the deceased was deriving a “high” level of earnings, the intention was to “see out the contract” with the intention of returning to full time work in the [dive] business. I am instructed that the deceased was pursuing the above contract to derive earnings which he would have “injected” into the business”.
    
45. This statement comes in the plaintiff’s own evidence to be relied on and was not addressed in submissions by excluding it from the court’s consideration.
    
46. That can only mean that the plaintiff accepted that the hearsay nature of the statement by Mr Elsmore was overcome and acceptance that she had made that statement and authorised Mr Elsmore to repeat that statement.
    
47. Whether she understood that or not is irrelevant, because she most certainly would have understood the meaning of the words she stated and he repeated.
    
48. On that basis the Elsmore evidence will not be allowed in as expert evidence, and the figures he gives as to possible earnings whether he stayed with the company or not, are superfluous.
    
49. Further, as there is a report by Mr Sinton Spence giving figures covering the same issues, the Plaintiff cannot reply on two sets of figures which are adversarial to each other.
    
50. This then overcomes the issue of admissibility of this so-called expert evidence, but I should state that as an observation on the admissibility of expert evidence, I agree with the statements by Makail J in PNG Ports Corporation, and would add that the test applied by the Federal Court of Australia is correct, that any evidence, whether expert or not, has to be admissible, determinations of fact occurring from there.
    

ASSESSMENT OF DAMAGES

51. The law in assessing damages is well settled and provides that the Court does the best it can to assess damages where evidence is wanting, see Mel v Pakalia (2005) SC790.
    
52. General damages are intended to compensate and put the injured person as nearly as possible in money terms, in the same position they would have been in had they not suffered injury by the negligent actions or omissions of the defendant. Compensation is not a reward to the plaintiff nor to penalize, but to right a wrong as nearly as possible in money terms, see Gunambo v Upaiga [2010] N3859 at [14] and Yambaki v Namues [2022] N9983 at [161].
    
53. Here the plaintiff was the mother of three young children, deprived of their father and main bread winner.
    
54. I would allow the sum of K10,000.00 for general losses, noting it is not necessarily a mathematical exercise.
    
55. As to damages for loss of financial dependency, the Spence report’s figures, other than for a notional assessment of remaining with the defendant’s employ, were not seriously questioned.
    
56. As stated, I will disregard the scenario that the Deceased would have remained with the shipping company for reasons stated above.
    
57. The Sinton report gives a figure of K679,735.00 for loss of financial dependency.
    
58. That takes into account past and future losses.
    
59. It is the figure I will adopt, on the basis that the Deceased was running his dive business and was engaging in further work to build wealth for his family.
    
60. As to loss of services, the Sinton report concludes that the figure of K286,918.00 is appropriate.
    
61. I will adopt that figure.
    
62. I note that the Elsmore report apportions losses for each plaintiff, and each proportion is different.
    
63. While there may be grounds for such differences, the fact is, these children were young, there is no real need to try and come to artificial figures as to their ages and needs – as they all have needed assistance over the years – and an equal apportionment does not do a disservice to one child over another.
    
64. I will also point out that the Sinton report correctly in my view identifies the Deceased ceasing such financial support at the age of 47 when the youngest children reaches the age of majority, which is 18 years of age.
    
65. The plaintiff states she attended upon a psychologist for assistance after the death of her husband.
    
66. In the absence of the accident, she would not have done so.
    
67. Receipts, on her evidence, show treatment from 27 July 2023 to 7 February 2024, amount to K6,803.15, based on exchange rate calculations, the initial receipts being in Australian dollars.
    
68. As there was no real questioning of that, I will allow the figure.
    
69. The defendant does not disagree with the funeral expenses, being K6,600.00.
    
70. As to loss of care and guidance, the defendant objects to any amount as one child has reached the age of majority and the other two have nearly reached that age.
    
71. The plaintiff is claiming K8,000.00 per child.
    
72. The defendant is taking a very harsh stance, and is failing to recognise that they children were, at the time of the accident, aged 7, 5, and 2, respectively.
    
73. Between the accident ion 2014 and now, the mother has had to supply the guidance and that costs money.
    
74. Had these calculations been done at the time, the court would not face a specious argument that they are now adults or nearly so.
    
75. While the onus is on the plaintiff to supply evidence of costs, and does not do so with any sort of precision, there is no doubt that costs have been incurred.
    
76. On that basis I would allow K4,000.00 per child, totalling K12,000.00
    
77. The orders will be then that the total sum of K10,000.00 + K679,735.00 + K286,912.00 + K6,803.15 + K6,600.00 + K12,000.00 = K1,001,330.00
    
78. The Sinton report subtracts amounts paid to the First Plaintiff – rent in 2015 K35,100.00 rent paid in 2016, K35,400.00 and school fees in 2015 K39,200.00 and school fees 2016 K40,480.00 – That equals K150,180.00.
    
79. I will subtract the amount from the figure to be paid - K1,001,330 – 150,180 = K851,150.00.
    
80. I would apportion the figures being 50 percent for the first plaintiff and the rest divided equally between the second, third and fourth plaintiffs.
    
81. I would not allow any further heads of damages.
    
82. As to the Bossert report, there was an objection that only one report was allowable.
    
83. In my view, that should be only one statement of evidence for each issue to be determined is a better description, and the plaintiff, nor the defendant, may introduce its evidence which contradicts other evidence they rely on. In this matter, to an extent, the Plaintiff has done just that, by introducing the Elsmore report as well as the Sinton report.
    
84. The Bossert report is of a different nature, in that it purports to give evidence of fund management costs for the minor children.
    
85. However, her evidence does not identify any costs at all of fund management for minors in PNG.
    
86. That is not evidence. You cannot give evidence of something you did not perceive.
    
87. On that basis, she has not produced admissible evidence, her comparison of costs between PNG and Australia not relevant to an identifiable position in PNG.
    
88. I have no evidence then upon which to make an award of damages under the head of funds management costs.
    

ORDERS

89. The Defendant will pay damages in the sum of K851,150.00 to the plaintiffs, the First Plaintiff to divide the amount in proportions as stated in paragraph 79 of the Decision.
    

Lawyers for the Plaintiff: O’Briens Lawyers
Lawyers for the Defendant: Young & Williams Lawyers