Paine v The State [1979] PGLawRp 663; [1979] PNGLR 99 (6 April 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 99 - John William Paine v The State 

[1979] PNGLR 99

N189

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN WILLIAM PAINE

V

THE GOVERNMENT OF PAPUA NEW GUINEA AND DIANE ELIZABETH PAINE (BY HER NEXT FRIEND JOHN WILLIAM PAINE)

V

THE GOVERNMENT OF PAPUA NEW GUINEA AND SUSAN NAOMI PAINE (BY HER NEXT FRIEND JOHN WILLIAM PAINE)

V

THE GOVERNMENT OF PAPUA NEW GUINEA

Waigani

Saldanha J

25 September 1978

27-29 September 1978

6 April 1979

NEGLIGENCE - Fatal accidents - Measure of damages - Claim for loss of wife and mother - Principles applicable - Loss of services - Two small children - Boarding school fees not justified - Husband’s prospects of remarriage - Damages assessed at K13,000.

In an action under Pt IV of the Law Reform (Miscellaneous Provisions) Act 1962 by an Australian widower aged about thirty-three years employed as a secretary-accountant, on behalf of himself and two female children aged nine and six at the time of death, for damages for the death of his wife as a result of a motor vehicle accident, it appeared that the deceased had not during the marriage worked and was to be described as an ideal wife and mother. Some twelve months after the death, the plaintiff, having immersed himself in work arranged for both children to attend boarding school in Australia.

Held

N1>(1)      Damages are to be based on the amount of actual pecuniary benefit which those claiming damages might reasonably be expected to enjoy had the deceased not been killed.

Davies v. Powell Duffryn Associated Collieries Ltd., [1942] A.C. 601, at p. 617, referred to.

N1>(2)      The pecuniary loss will include the cost of replacing services rendered gratuitously by the deceased if there was a reasonable prospect of their being rendered freely in the future but for the death of the deceased.

Berry v. Humm & Co., [1915] 1 K.B. 627, referred to.

N1>(3)      Accordingly the value of replacing the deceased wife’s and mother’s services is all that the husband and children were entitled to.

N1>(4)      The value of those services will be assessed at the date of death, and by reference to the plaintiff’s situation at the date of death, including the place where the family were staying, their lifestyle, the work the husband was doing and the remuneration he was receiving.

Ruby v. Marsh [1975] HCA 32; (1975), 132 C.L.R. 642, referred to.

N1>(5)      Accordingly, a claim for boarding school fees for children could not be justified as the value of the loss of domestic services occasioned by the death of the mother.

N1>(6)      Having regard to the cost of engaging a domestic servant at K10 per week and the fact that a wife and mother is to be regarded as more than just a housekeeper (Regan v. Williamson, [1976] 1 W.L.R. 305, at p. 309) the appropriate figure for weekly dependency until the plaintiff’s proposed return to Australia at the end of 1979 should be K20.

N1>(7)      The prospects of the plaintiff’s remarriage being high, further damages should be limited to a period of two years in Australia at $5,000 (K4,000) per year.

N1>(8)      Total damages for loss of dependency should be assessed at K13,000.

Action

This was an action brought under Pt IV of the Law Reform (Miscellaneous Provisions) Act 1962, by a husband/father on behalf of himself and two female children for damages for the loss of wife and mother, arising out of the death of the wife in a motor vehicle accident in January 1975.

Counsel

G. B. Evans, for the plaintiffs.

G. M. H. Delaney, for the defendant.

Cur. adv. vult.

6 April 1979

SALDANHA J: John William Paine (John) is an Australian aged aout thirty-three. He is employed as a secretary-accountant by the Sepik Coffee Producers Ltd. (the “company”) at Maprik. He is also a director of the company. He lived about two miles from Maprik with his wife Coral Anne (Coral) and his two daughters Diane Elizabeth (Diane) and Susan Naomi (Susan).

On Saturday, 18th January, 1975, at about 5.30 p.m. Coral was driving John’s Toyota Corolla station wagon along the Maprik-Hayfield road towards Hayfield with Diane and Susan in the car when her motor vehicle collided with a Toyota Landcruiser which was being driven in the opposite direction. The Toyota Landcruiser was owned by the Public Works Department and was being driven by one Eliza Katakupa. The Corolla station wagon was damaged beyond repair, Coral was killed and Diane and Susan sustained injuries.

John brought three actions against the Government of Papua New Guinea (the Government). He alleged that the Toyota Landcruiser was being driven by Eliza Katakupa in the course of his employment and that he had been negligent. In one of the actions he claimed damages for the total loss of his motor vehicle, for Coral’s loss of expectation of life and damages for himself, Diane and Susan under the Law Reform (Miscellaneous Provisions) Act 1962. The other two actions were on behalf of Diane and Susan for damages for the injuries sustained by them. John sued as their next friend. In each of the three actions the Government admitted liability but disputed the damages claimed.

I was informed by both counsel that payment into court had been made in respect of the damages claimed on behalf of Susan and had been accepted. I was also informed that John would be giving evidence in both of the two remaining actions, that Diane would be giving evidence in the action brought on her behalf and that the defendant would be adducing no evidence. In view of this, although the actions were not consolidated, by consent the two actions were heard together and after John and Diane had given evidence the two counsel addressed me on both actions.

John and Coral were married in March 1966. John was then twenty-one years of age and Coral was nineteen. John was an accountant but not yet fully qualified. He had two more subjects still to study and examinations to sit in respect of them. They lived in Melbourne for about two and a half years after they were married. John worked for a company. Diane was born in September 1966.

In June or July 1968, John started working for a Presbyterian Mission at Mornington Island in North Queensland as business manager, accountant and superintendent. He alone was paid but Coral was expected to and did take part in voluntary activities. They stayed at the mission for about two and a half years. Susan was born in October 1969.

They left Mornington Island in 1971 and returned to Melbourne where John worked as an accountant and while working studied the two remaining subjects. Two years later he completed his studies and became fully qualified.

He expected an increase but did not get one. They were happy enough but like most young married persons with children to support always short of money. So he looked for a job with more pay. He found one in Maprik in Papua New Guinea. In February 1974, he assumed the appointment of accountant-secretary with the Sepik Producers Co-operative Association. Later this became Sepik Coffee Producers, Ltd., and, it was presumably when the limited company was formed that he became a director.

Coral was not enamoured of Papua New Guinea but life here had its compensations. The relaxed atmosphere here was preferable to the hectic pace of life in Melbourne; they had more money to spend and Coral became resigned to the idea that it was the best that they could do in the circumstances. Once they had settled down they were reasonably happy.

John had an interesting and responsible job. Coral was lively and attractive. She had a vivacious personality. She kept the house clean and tidy, cooked tasty meals, made clothes for the children, supervised their studies and read bed-time stories to them. They had no servant. They did not need one. Coral preferred to do the work herself.

The whole family enjoyed outdoor activities. They loved water sports, went picnicking, entertained and were entertained in return. Coral was old-fashioned enough to respect John as the head of the household and that made John feel good and secure. Nothing ever came between them. In short, Coral was an ideal wife and an ideal mother.

But there was a dramatic change when Coral died. There was a sense of irreparable loss. The youngest, Susan, who was closest to her mother, could not understand why such a thing had to happen. Indeed they all asked why such a thing had to happen but they found no answer and no consolation.

John’s parents came to Papua New Guinea after Coral’s death and stayed for three weeks. His mother wanted to take the children to Australia but John thought it would be better if the children stayed with him. They stayed with him for five months.

They lived at Hayfield and the children went to school at Maprik which was two miles away. Taking them to school every day and bringing them back home was quite a problem. The D.D.C. pulled strings and managed to get them a government house in Maprik. That eased some of the difficulties but others remained. The children could now walk to school and walk back home. But the school finished at 3.15 p.m. and John finished work at 6.00 p.m. So the children had to while away the interval in other people’s houses or in the Maprik Club.

John could not get over the loss of his wife. He was depressed. He had a feeling of complete and utter loneliness. He felt keenly the loss of the support he used to have from his wife. There was no one to come home to. Before his wife’s death he had not worked beyond the normal working hours—and never worked on Saturdays and Sundays. But now he channelled all his energies into work. In his own words he spent ninety per cent of his time at work and ten per cent in social activities. He started on a programme of expansion and diversification for the company.

Diane had sustained a compound fracture of the right arm. I shall be referring to Diane’s case in some detail at a later stage. It is sufficient at this stage to state that there were complications and the arm was not healing. Because of this and also because he felt that he was unable to provide the children with the kind of care they had received from their mother, in June 1975 he took the children to Australia. Diane’s arm was operated upon after which it healed completely.

John returned to Maprik leaving the children with his parents in Melbourne for six months where they attended the local State school. But this arrangement was not satisfactory. His parents were getting on in years and John did not wish to burden his aged parents with the responsibility of caring for his young children. He decided that in the circumstances the best thing he could do was to send them to boarding school.

He chose St. Margaret’s at Berwick some thirty miles from Melbourne. It is a small school with about forty boarders and has a family-type of atmosphere which suited Susan who was only six at the time. There was some difficulty in getting her in because of her age. The children spent their holidays with their father in Maprik in May, September and at Christmas time every year, and travelled by air to Maprik and back to school.

After Coral’s death it was necessary to secure the services of a domestic servant to clean the house, wash and iron clothes and wash the dishes. A cook was not available at Maprik. John did the cooking, badly at first but improving with time and experience. He paid his servant K10 per week.

On the day of the accident John was at Port Moresby. He learned of his wife’s death at about 8.30 p.m. or 9.00 p.m. that night. He was unable to travel by a scheduled flight either on that day or the following day. He chartered a plane from Douglas Airways and flew to Maprik on the following day. The cost of the charter was K804.67. Apparently this sum was debited to the company’s account by Douglas Airways—and subsequently paid by the company to Douglas Airways—and debited to John’s account in the books of the company.

I am informed by both counsel that the claim for damages for the loss of the car has been withdrawn and that the defendant is making an ex gratia payment of K700 to John. John was claiming on behalf of Coral’s estate the sum of K800 for loss of expectation of life. The defendant concedes this claim. Special damages claimed on behalf of Diane have been agreed at K469.35.

At English common law the death of a person did not give rise to an action for damages. This deficiency in the law was remedied in England by the enactment of the Fatal Accidents Act. The Australian States followed suit by enacting similar legislation and in Papua New Guinea Pt IV of the Law Reform (Miscellaneous Provisions) Act 1962 (the “Act”) re-enacts in substantially the same terms the provisions of the Fatal Accidents Act. Section 12(1) of our Act, so far as is relevant, provides that “the court may give such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought”. Damages are based on the amount of actual pecuniary benefit which those persons might reasonably have expected to enjoy had the deceased not been killed: Davies v. Powell Duffryn Associated Collieries Ltd.[xc]¹. The pecuniary loss includes the cost of replacing services rendered gratuitously by the deceased if there was a reasonable prospect of their being rendered freely in the future but for the death of the deceased: Berry v. Humm & Co.[xci]². The words from s. 12(1) cited above (they are similar to the words in the Fatal Accidents Act) have been construed very narrowly by the courts and there are many cases in support of the proposition that the value of replacing a wife’s and mother’s services is all that a husband and children respectively are entitled to. In this case it would be a single claim for replacing Coral’s services to the family to be apportioned in accordance with the provisions of s. 12(1) of the Act.

The correct approach is not to quantify the loss as at the date of the trial. The relevant date is the date of death: Ruby v. Marsh[xcii]³. The value of Coral’s services must be assessed therefore by reference to the plaintiffs’ situation at the time of the accident. The court must consider the place where the family were staying, their life style, the work the husband was doing and the remuneration he was then receiving. A guide to the value of the domestic services that have been lost is the cost of supplying domestic assistance at Maprik. By no stretch of the imagination can it be said that a man is justified in law in sending his children to a boarding school to make up for the loss of domestic services occasioned by the death of the mother.

It is true that the process which culminated in the children being sent to boarding school started with the death of Coral. Even if it were true, as counsel for the plaintiffs maintains it is, that John sent the children to boarding school in order to compensate for the loss of the mother’s services, the claim for boarding school expenses would not be recoverable for reasons I have mentioned above. That, however, is not how it happened.

At first John tried to look after the children himself. He even refused to allow his mother to take the children to Australia. It was after he immersed himself in work in order to drown his sorrow that he got so involved with his company’s affairs and so committed to the expansion programme that he had initiated that he found it was almost impossible for him to care for the children adequately. It was then that he decided to send the children to boarding school. He did this about a year after Coral’s death.

By sending his children to boarding school he has been able to achieve a great deal both for himself and his company. When he started work his employers were an association of a few co-operative societies dealing in coffee. As a result of the expansion programme and the hard work he put into it the association is now a thriving limited company with subsidiary companies which own hotels, workshops and a coffee mill, operate earth moving equipment and a Nomad aircraft and are engaged in building operations.

His remuneration has kept pace with the company’s expansion. His starting salary was K8,000 per annum gross. By 1975-1976 he was getting K14,000 to K15,000 per annum. In 1977-1978 it had shot up to approximately K33,000 per annum plus a bonus of K30,000. If he had gone to Australia he would have been earning something like $14,000 to $15,000 per annum in 1976-1977 and about $18,000 per annum in 1978. He would not have been able to do so well if he had kept the children with him at Maprik. In cross-examination he conceded that if he had not initiated the expansion and diversification programme and not worked as hard as he did he would have had the time and the energy to look after his children.

I find therefore that he is not entitled to the cost of sending his children to boarding school—or the cost of the return air fares to Maprik during school holidays.

John has said that he did not think he would stay in Papua New Guinea after the end of 1979 for the reason that although he is well off economically he is not so well off socially. Papua New Guinea, according to him, is not a single man’s country. He intends to return to Australia. Mr. Delaney, counsel for the defendant, concedes that in the circumstances it is a reasonable decision. John would therefore be entitled to the cost of engaging the domestic servant for the five years from 1975 to 1979. The domestic servant is paid K10 per week. The case of Regan v. Williamson[xciii]⁴ is authority for the proposition that a wife and mother is more than just a housekeeper. In that case Watkins J. in his judgment said as follows[xciv]⁵:

“I have been referred to a number of cases in which judges have felt compelled to look on the task of assessing damages in cases involving the death of a wife and mother with strict disregard to those features of the life of a woman beyond her so-called services, that is to say, to keep house, to cook the food, to buy the clothes, to wash them and so forth. In more than one case, an attempt has been made to calculate the actual number of hours it would take a woman to perform such services and to compensate dependants on that basis at so much an hour and so relegate the wife or mother, so it seems to me, to the position of a housekeeper.

While I think that the law inhibits me from, much as I should like to, going all the way along the path to which Lord Edmund-Davies pointed, I am, with due respect to the other judges to whom I have been referred, of the view that the word ‘services’ has been too narrowly construed. It should, at least, include an acknowledgement that a wife and mother does not work to set hours and, still less, to rule. She is in constant attendance, save for those hours when she is, if that is the fact, at work. During some of those hours she may well give the children instruction on essential matters to do with their upbringing and, possibly, with such things as their homework. This sort of attention seems to be as much of a service, and probably more valuable to them, than the other kinds of service conventionally so regarded.”

I consider that the appropriate figure of dependency in this case is K20 per week, or, approximately K1,000 per annum. The figure for five years from the beginning of 1975, when Coral died, until the end of 1979 will be K5,000.

Different considerations will be involved when John returns to Australia. One of the considerations is the number of years for which he should be allowed damages. That depends to a great extent upon his prospects of re-marrying.

About twelve to fifteen months after Coral’s death he met a young English V.S.O. who was a teacher at Maprik. She returned to England and John went to England in July 1976 and met her. They had planned to get married but at the last minute she changed her mind. John thinks she was worried about the responsibility of looking after his children. He has known a widow for the last year. She has two children. After her husband’s death he assisted her with estate matters. She owns a horse stud farm. But she can neither sell nor lease this. She does not like Papua New Guinea and it appears that Diane does not see eye to eye with her. He does not rate very highly his chances of marrying the widow. Indeed he does not rate highly his chances of marrying at all. He says he does not want to have any more children. But any girl he married would very likely be in her twenties and would want to have children of her own. He travels a lot and that prevents him from meeting girls. He concedes that his prospects of re-marrying may improve on his return to Australia. He does want to get married.

I think he is unnecessarily pessimistic and grossly underestimates his chances. He is young and personable. He is obviously a man of drive and initiative. He is a qualified accountant and should not find it difficult to get employment. I think that his chances of getting married within the next three years are excellent.

In three years time the girls would be much older. Already they do a lot of the household work, they can dress and wash themselves and do not require a lot of supervision. In three years time they will be much more responsible and independent. I consider that a daily woman working for two hours a day for seven days per week would be sufficient. The hourly rate for a daily in Australia is about $5. I would allow $2 per hour more for reasons mentioned in Regan’s case. The daily cost would be $14 and the weekly cost $98. The yearly cost would be approximately $5,000 and the cost for two years $10,000 which is the sum I award him for the two years in Australia. At the rate of K1.00 = $1.25, $10,000 is equal to K8,000.

There will therefore be judgment in the sum of K13,800 in respect of John, Diane and Susan

Judgment accordingly

Solicitors for the plaintiffs: Gadens.

Solicitor for the defendant: C. Maino-Aoae, State Solicitor.

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[xc] [1942] A.C. 601, at p. 617.

[xci][1915] 1 K.B. 627.

[xcii](1975) 132 C.L.R. 642; 49 A.L.J.R. 320.

[xciii][1976] 1 W.L.R. 305; [1976] 2 All E.R. 241.

[xciv] [1976] 1 W.L.R. 305 at p. 309; [1976] 2 All E.R. 241, at p. 244.