Ela v State [1989] PGNC 127; [1988-89] PNGLR 653; N784 (30 October 1989)

N784

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

SENI ELA

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen
Woods J
21 September 1989
30 October 1989

DAMAGES - Fatal accidents - Particular awards - Plaintiff widow and one child aged five years - Deceased subsistence village farmer aged 22 years - Loss of dependency - K5.50 per week appropriate for both widow and child.

The plaintiff, a widow aged 22 years, claimed damages on behalf of herself and one child aged 5 years arising out of the death of her husband in a motor vehicle accident. The deceased (aged 22 years) was a village farmer cultivating coffee and cash crops and the sole support of his wife and child.

Held

A figure of K5.50 per week for the loss of dependence was appropriate for both the widow and the child taking into account, in particular, the cost of education for the child.

Statement of Claim

This was an action for damages brought by a widow on behalf of herself and one child of her marriage to the deceased who died following a motor vehicle accident.

Counsel

D L O’Connor, for the plaintiff.
B V L Ninai, for the defendant.
Cur adv vult

30 October 1989

WOODS J: This is a claim by the widow of one Ela Goro who was killed on 4 February 1987 when he was struck by a motor vehicle owned by the State.

The action is brought for and on behalf of the deceased’s widow and one child aged five years, at his death.

Liability has been admitted on the part of the defendant and this has come before me on the quantum of damages.

The deceased was aged about 22 years at the time of his death and prior to his death he was in good health. He was a village man cultivating traditional crops and some coffee and was the sole support of his wife and child. The cash income received from the garden and coffee has been estimated by the plaintiff at K350 a year from the sale of coffee cherries and K50 from the sale of vegetables. Whilst it may be argued that the plaintiff herself assisted with some of the cash-producing work, one should not disregard the other work which the deceased would have done for the benefit of the family, which work cannot be given a cash figure. This other work would include the construction of gardens, fences and the construction and maintenance of their home.

When comparing the figures applicable to a person in a modern style of employment with the figures estimated for a subsistence village person, I find that figure of K5.50 each for loss of dependence for the plaintiff and the child to be a quite reasonable figure, especially when the cost of education will have to be met for the child.

With respect to the period for dependence, I agree it is reasonable to allow for loss of dependence for the wife until she attains the age of 55 years and, of course, the child should be allowed until she attains the age of 16 years. With respect to the plaintiff widow, I would allow a deduction for contingencies of 10 per cent.

I will not add an amount for the loss of expectation of life as that would have been covered by the basic protection payment.

I therefore assess the claim as follows:

(1) For the widow: dependency for 33 years at K5.50 per week capitalized at 1100 comes to K6,050 less 10 per cent for contingencies being K605.00 to a total of K5,445.00.

(2) For Dama Ela: dependency for 11 years at K5.50 per week capitalized at 490 comes to K2,695.00.

I would allow interest on these amounts at 8 per cent from the date of the writ to date of judgment.

TO SUMMARISE

Seni Ela: K5,445 plus interest of K355.64 — K5,800.64
Dama Ela: K2,695 plus interest of K176.00 — K2,871.00
I allow judgment for K8,671.64

I order that the sum of K5,800.64 be paid to the plaintiff, Seni Ela, forthwith.

I order that the sum of K2,871.00 be paid to the Registrar of the Court and invested on behalf of Dama Ela until she attains the age of 18 years on 15 February 2000.

Judgment and orders accordingly

_________________

Lawyer for the plaintiff: D L O’Connor.
Lawyer for the defendant: State Solicitor.