Moruwu v Uve and Goroka Coffee Producers Ltd [1978] PGLawRp 526; [1978] PNGLR 161 (19 May 1978)

Papua New Guinea Law Reports - 1978

[1978] PNGLR 161 - Garaiju Moruwu v Sabeme Uve and Goroka Coffee Producers Ltd 

[1978] PNGLR 161

N137

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GARAIJU MORUWU

V

GOROKA COFFEE PRODUCERS LIMITED

Waigani

Kearney J

19 May 1978

NEGLIGENCE - Fatal accidents - Damages - Measure of damages - Claim by mother for loss of support by deceased son - Factors to be taken into account - Law Reform (Miscellaneous Provisions) Act 1962, Pt. 4.

NEGLIGENCE - Fatal accidents - Damages - Loss of life expectation - Measure of damages - Conventionally accepted figure adopted - Law Reform (Miscellaneous Provisions) Act 1962, Pt. 5.

In proceedings under Pt. 4 of the Law Reform (Miscellaneous Provisions) Act 1962 by a plaintiff claiming damages for injury sustained as a result of the death of her son and under Pt. 5 of the said Act, to enforce for the benefit of the estate of her son the cause of action which he had when alive (i.e. his loss of life expectation);

Held

N1>(1)      In proceedings under Pt. 4 of the Law Reform (Miscellaneous Provisions) Act 1962, damages are to be assessed on the basis of compensation for pecuniary loss, i.e. the monetary value of the plaintiff’s loss of support.

Mary Gugi v. Stol Commuters Pty. Ltd. [1973] P.N.G.L.R. 341 followed.

N1>(2)      The reasonable expectation of benefit upon which the plaintiff was entitled to rely in the circumstances was support from her son to the value of K5 per week throughout the full period of the rest of her life, had he not died, and which should be assessed at K3,433.00.

N1>(3)      In proceedings under Pt. 5 of the Law Reform (Miscellaneous Provisions) Act 1962, the measure of damages for loss of expectation of life (in the absence of any statutory guidance) should be the conventionally accepted figure of K800.00 and there should be judgment accordingly.

McLean v. Carmichael and Others [1969-70] P. & N.G.L.R. 333 followed.

Malit v. Pombi and Others [1975] P.N.G.L.R. 151 referred to.

Actions

These were actions brought under Pts. 4 and 5 of the Law Reform (Miscellaneous Provisions) Act 1962 by a mother as the result of the loss of a deceased son.

Counsel

G. Cartledge, for the plaintiff.

Cur. adv. vult.

19 May 1978

KEARNEY J: The plaintiff issued a writ on 13th April, 1976 which was duly served. Neither defendant entered an appearance. On 30th July, 1976 the plaintiff secured an interlocutory judgment, by that default. The matter now comes before me for assessment of damages, upon affidavit evidence.

The plaintiff has two claims. The first, under Pt. 4 of the Law Reform (Miscellaneous Provisions) Act 1962, is a claim for damages for the injury she has sustained as a result of the death of her son Membru Wandiripo, caused by the negligent driving of a motor vehicle by the first defendant as a servant or agent of the second defendant.

The second claim, under Pt. 5 of the Act, is to enforce for the benefit of the estate of her son the cause of action which he had when alive, as a result of the negligent conduct of the defendants which caused his death. It is usual here for the two claims to be brought in the one action: see Maria Akawe v. Wells[cclxv]¹.

N1>The facts are that on 26th March, 1974 the deceased was a pedestrian on a road at Goroka when he was struck and killed on or near the Sokosi Bridge by a Toyota “Stout”, then being negligently driven by the first defendant in the course of his employment by the second defendant. At the time of his death, the deceased was a healthy man about 25 years of age, employed by Steamships Trading Company Ltd. at Goroka as a carpenters’ assistant, at a wage of K27.00 per fortnight.

N1>The plaintiff, the only person entitled to claim under Pt. 4 of the Act, was dependent upon her son; from his earnings he provided her with food and shelter and K10.00 cash per fortnight. In Pt. 4 actions, compensation is for pecuniary loss, the monetary value of the plaintiff’s loss of support; (Ogan Bal v. Ninkama Bomai[cclxvi]² and Mary Gugi v. Stol Commuters Pty. Ltd.[cclxvii]³). This comes about by judicial interpretation of s. 12 of the Act of such long standing and authority that I should follow it; but the Supreme Court may well consider whether Constitution Sch. 2.2.(1) warrants so restrictive an interpretation. For the purposes of the Pt. 4 claim the measure of the injury the plaintiff has sustained by the death is the loss of the support received from her son, bearing in mind the period for which it could reasonably be expected she would have continued to be so supported. At the time of her son’s death, the plaintiff was about 45 years of age, and her life expectancy, according to the tables commonly used[cclxviii]⁴, was about 25 years. The deceased’s life expectancy then was about 38 years; I think he would not have retired from work within the next 25 years. I find that the plaintiff by reason of her blood-relationship would probably have received support from her son to the value of about K5 per week, throughout the full period of the rest of her life, if he had not died. (I bear in mind the double contingency involved, as regards the two lives; and also in particular, the possibility of the son’s marriage). That is the reasonable expectation of benefit upon which she is now entitled to rely. No material benefits arise from the death to be offset; nor are there any material prospects of the mother’s re-marriage. Capitalizing K5.00 per week over 25 years, using the 6% tables, which I consider appropriate, yields the sum of K3,433.00. I see no reason why this method of calculation should not be used, instead of the “nett multiplier”, or “years’ purchase”, system, a view which Frost S.P.J (as he then was) ultimately preferred; (Smerdon v. Raquel[cclxix]⁵).

N1>Bearing in mind the contingencies, of the type mentioned by Williams J in Mary Gugi v. Stol Commuters Pty. Ltd.[cclxx]⁶ which operate both ways, I see no need to make any deduction from that figure. The social customs and life circumstances of Papua New Guinea render inappropriate and inconsistent with custom the application of the factors which pointed to a reduction in damages in the mother and son case of Dolbey v. Goodwin[cclxxi]⁷.

N1>There will be judgment for the plaintiff in the sum of K3,433.00, in respect of her claim under Pt. 4 of the Act.

N1>As to the Pt. 5 claim, what the deceased lost, by the defendants’ negligent act, was his expectation of a life-time of about 38 years. It is his cause of action for damages for that shortening of his life, which survives for the benefit of his estate; (Rose v. Ford[cclxxii]⁸). (It was not argued that damages for loss of earning capacity were also recoverable under Pt: 5; consequently, I do not enter on that question.)

N1>What is the measure of damages for loss of expectation of life? As the law stands the prospective length of the life-time lost makes no difference, the true loss being regarded somewhat metaphysically as “expectation of happiness”. This branch of the law rests on a basis of practical convenience; the “plaintiff” being dead, money cannot compensate him; and the law leans against the beneficiaries of his estate (including, possibly, its creditors) reaping the benefit of the deceased’s loss of life-expectancy. The issues involved were canvassed in detail by Frost J (as he then was) in McLean v. Carmichael[cclxxiii]⁹. (His Honour refers to the cause of action as surviving under s. 9 of the Act, but clearly enough it is the cause of action which survives under Pt. 5, which is the subject of the discussion.) As a result his Honour fixed a ‘conventional’ sum of $800 as damages recoverable in respect of actions which survive under Pt. 5; as far as I am aware, that sum has been applied ever since; e.g. Malit v. Pombi and Ors.[cclxxiv]¹⁰. It is true that the value of money has eroded severely over the last 8 years but the process of determining an appropriate sum for loss of expectation of happiness is, as Lord Goddard put it, akin to “a blind man looking for a black hat in a dark room”; in Mills v. Stanway Coaches Ltd.[cclxxv]¹¹. It involves attempting to provide a rational solution to an irrational question. I accept K800 as the present conventional figure, and there will be judgment for the plaintiff on behalf of the estate in the sum of K800, in respect of the claim under Pt. 5.

N1>In passing, I would, with respect, endorse the call in McLean v. Carmichael[cclxxvi]¹² for the fixing by statute of a suitable sum, or scale, to be paid to the estate, in respect of what is now the claim under Pt. 5, if no more far-reaching reform is contemplated. What reform in this area involves is, adapting the words of Scott L.J, “a social question, turning upon the character of (Papua New Guinea) society and the whole theory of politics in the country”; Ellis v. Raine[cclxxvii]¹³. In accepting as a concept that loss of expectation of life can be measured in money terms, albeit by a conventional sum, the present statute law as interpreted, appears to be in some accord with those principles of customary law enshrined in the group-compensation payments for death so common a feature of life in many parts of the country.

It may well be that Pts. 4 and 5 of the Act should be repealed and replaced with legislation which, reflecting the moral views of the community, frankly recognizes the special nature of wrongs which cause death, and the effect of a death upon the surviving dependants and kinsmen, those who have an interest in the continuance of the life of the person killed; and which determines on a more rational basis how those persons are to be ascertained, and how their interests in the continuance of the person’s life, be they material interests capable of cash evaluation or interests of an intangible nature, are to be assessed. The nature and importance of the matter may be such as to merit the attention of the Law Reform Commission. Certainly Pt. 5 of the Act is unsatisfactory, conceptually and in practice, as it now stands.

Orders accordingly.

Solicitors for the plaintiff: McCubbery Love Train & Thomas.

[cclxv][1973] P.N.G.L.R. 334.

[cclxvi]

[cclxvii][1973] P.N.G.L.R. 341.

[cclxviii]Tables based on the mortality estimations of Van de Kaa in The future growth of Papua New Guinea’s population, a paper delivered at the U.P.N.G. seminar on population, 1970.

[cclxix][1973] P.N.G.L.R. 313 at p. 316.

[cclxx][1973] P.N.G.L.R. 341 at p. 362.

[cclxxi][1955] 2 All E.R. 166.

[cclxxii][1937] A.C. 826 (HL).

[cclxxiii][1969-70] P. & N.G.L.R. 333.

[cclxxiv][1975] P.N.G.L.R. 151.

[cclxxv] [1940] 2 K.B. 334 at p. 349.

[cclxxvi][1969-70] P. & N.G.L.R. 333 at p. 341.

[cclxxvii] [1939] 1 All E.R. 104 at p. 107.