Appa v Motor Vehicles Insurances Limited [2004] PGDC 2; DC94 (20 February 2004)

DC94

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 120 OF 2000

BETWEEN

MOKA APPA
Complainant

AND

MOTOR VEHICLES INSURANCES LIMITED
Defendant

Mt. Hagen

Appa, P,M.
5 February 2004
20 February 2004

COUNSEL

R. Yalol for the Complainant

R. Doke for the Defendant

JUDGMENT

The complainant is the father of his deceased 17 year old son Jim Moka who was killed in a Motor Vehicle accident on 22nd April 1999 at Kotna in the Western Highlands Province. The vehicle involved was a Mitsubishi canter truck, Reg. No. P 541U. The Basic Protection Compensation claim was settled but they are now claiming under section 25 of the Wrongs (Miscellaneous Provisions) Act for solatium and for other related damages as consequential to the loss of that young boy.

The complainant filed five affidavits in support of the claim. The affidavits set out that there was this fatal car accident in which the deceased died and that fault was with the driver of the insured vehicle who failed to give warning or stop to avoid the accident. The affidavit of Peng Kundi Bob stated that a customary compensation payment of K11, 000.00 cash, 60 live pigs and one cassowary was made for the death. That payment was made to maintain peace in the community and it was felt that the defendant should also be responsible for the loss of the young boy since the insured vehicle directly caused the death.

There was a general defence filed denying liability and raised the defence of contributory negligence but filed no affidavit to verify their defence. Lawyers for the defendant did not appear at any one time to defend the proceeding since its inception in October 2000.

Lawyer for the complainant tendered complainant's affidavit and asked court to make its findings both on liability and assessment of damages. A written submission was also filed by the counsel.

I am satisfied with the complainant's case that the deceased died as the direct result of the negligent driving of the insured vehicle and thus cut short the young boy's enjoyment of his future life. Liability was therefore established against the defendant.

On the issue of quantum, the father of the deceased has asked for compensation for the loss of his son for an estimated figure of K8, 500.00 and K500.00 in solatium under the Wrongs (Miscellaneous Provisions) Act. The K8, 500.00 was intended to include loss of expectation of life, stress, trauma and anguish, emptiness of a family member and also for future economic loss to the parents and family members. In my view those are reasonable expectations in normal situation.

I was made aware that a customary compensation of K11,000.00 cash, 60 live pigs and a cassowary was paid in respect of the death but that was a traditional matter to maintain peace and it was not a legal requirement so there could be as unjust enrichment or double claim.

I enter judgment for the complainant for a sum of K9, 000.00 plus K1, 000.00 in special damages and 8% interest on the K10,000.00 damages awarded. Cost followed the event. Interest to run from the date of summons to settlement date.

Warner Shand Lawyers Complainant

R. Doko - MVIL Legal Officer Defendant