N953

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

COLLINS

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani
Hinchliffe J

23-24 August 1990
13 December 1990

DAMAGES - Fatal accidents - Measure of - Dependency claim - Infant dependant - Age of dependency - Sixteen years not necessarily appropriate.

DAMAGES - Fatal accidents - Measure of - Dependency claim - Practice and procedure - All dependants to be specifically named in writ - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 32.

DAMAGES - Fatal accidents - Measure of - Dependency claim - Deceased husband and father - Whether age of retirement to be fixed at 55 years - Public Service retiring age not mandatory.

DAMAGES - Fatal accidents - Measure of - Dependency claim - Estate not entitled to claim for economic loss during lost years.

The deceased, an Australian aged 53 years, was killed in a motor vehicle accident. A claim for damages was made by his wife and two children (one of whom was not named in the proceedings) against the Motor Vehicles Insurance Trust under the Wrongs (Miscellaneous Provisions) Act (Ch No 297). Section 32 of the Act requires a plaintiff to deliver, with the statement of claim, "full particulars of the person for whom and on whose behalf the action is brought ..."

Held

(1) Sixteen years as the maximum age of a child in dependency claims is an arbitrary figure, and does not reflect the reality and economic materiality of the dependency of children upon their parents.

None v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 561, followed.

(2) A dependant who is not specifically mentioned in the writ of summons as required by s 32 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) cannot claim for dependency loss.

(3) In considering a dependency claim, whilst the Public Service retiring age of 55 years is the proper age to which regard should be had, it is not mandatory. In fixing the age of retirement regard is to be had to the particular circumstances.

Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611 at 615, considered.

(4) The estate of a person who dies as a result of another’s negligence is not entitled to recover damages for economic loss during the lost years.

McLean v Carmichael [1969-70] PNGLR 333 and Vian Guatal v PNG [1981] PNGLR 230, followed.

(5) Where the deceased was a qualified painter and decorator and professional footballer who was in Papua New Guinea as National Coaching Director of the Papua New Guinea Rugby League and was fit and healthy, an appropriate retiring age was 65 years.

Cases Cited

Aglum v Motor Vehicles Insurance (PNG) Trust (National Court, Judgment No N768, Bredmeyer J, 30 September 1988, unreported).
Gammell v Wilson [1982] AC 27; [1981] 1 All ER 578.
Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611.
Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.
McLean v Carmichael [1969-70] PNGLR 333.
None v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 561.
Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323.
State v Allen Woila [1978] PNGLR 99.
Tapi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 568.
Vian Guatal v PNG [1981] PNGLR 230.

Action

This was an action brought under the Wrongs (Miscellaneous Provisions) Act (Ch No 297) to recover damages in respect of the death of the plaintiffs husband as a result of a motor vehicle accident.

Counsel

W Neill, for the plaintiff.
R Thompson, for the defendant.
Cur adv vult

13 December 1990

HINCHLIFFE J: Francis Keith Collins was killed on 18 March 1987 in a motor vehicle accident on the Magi Highway. He was a passenger in a vehicle being driven by one Michael Wai. The defendant has admitted liability so what is left for this Court to decide is the quantum of the plaintiffs claim and whether or not the deceased’s estate is entitled to bring a claim for damages for its loss consequent upon the premature death.

Both parties are a considerable difference apart in their estimations of what should be the correct figure. The plaintiff submits that a figure in the vicinity of K158,000 is in order whereas the defendant is far more conservative with a figure somewhere between about K10,000 and K24,000. Hence the reason why this action has found its way into this Court.

There are three matters to which I will refer at the outset. First of all is the question of the maximum age of a child in a claim such as this. In the past, courts have been fairly consistent in saying that 16 years is the maximum age, although more recently some judges have not necessarily followed that view. Brunton J in None v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 561, held that 16 years was an arbitrary figure and did not reflect the economic materiality of the dependency of children upon their parents.

A similar approach was taken by Woods J in Tapi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 568.

I agree with those judges in their approach. There are instances where children, well after their 16th birthday, may be dependent on their parents. Some continue being educated into their early twenties and may be fully reliant on their parents for financial assistance. Others could be unemployed and may stay at home under parental guidance and support for many years. The days of leaving school and finding immediate employment have gone for ever. The opportunities for further education are increasing. Many people have shifted from their villages and moved to the cities. They no longer have gardens. All in all it means that now young people, to a large extent, are dependent on their parents well after the age of 16 years. Maybe the time has come to consider whether or not 16 years is realistic in such a claim as this one. I am inclined to the view that it is not. In the present case I propose to consider the child Roseanne’s loss before and after she had turned 16.

Secondly, there is the question as to the claim of the child Maureen.

I note that during the hearing of the claim her name was mentioned on numerous occasions. in the schedule of dependency calculations forwarded to me by Mr Neill on 30 August 1990, her name was included together with claim figures. Ms Thompson has submitted that the child Maureen should not be considered in any calculations because she was not specifically mentioned in the writ. I must agree with her because the amended statement of claim dated 22 February 1990 reads, inter alia, as follows:

"Particulars of the Plaintiff pursuant to Section 32 Wrongs (Miscellaneous Provisions) Act Chapter 297.

The claim is brought by the dependents of the deceased at the time of his death namely the Plaintiff widow and daughter Roseanne Monica Collins aged 49 years and 15 years respectively."

Section 32 of the said Act provides:

"In an action under this Part, the plaintiff on the record must deliver, together with the statement of claim, to the defendant or his lawyer full particulars of the person for whom and on whose behalf the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered."

Clearly the child Maureen has not been included and if it was intended that she be included then I am satisfied that s 32 has not been complied with. I agree with Ms Thompson’s submission and I will not refer to Maureen when assessing the claim.

Thirdly, it has been submitted by the defendant that when considering this matter I should only be concerned with the time leading up to the deceased’s 55th birthday. It was submitted that as far as Papua New Guinea is concerned, that is the Public Service retiring age and that is the age that I should be dealing with as the cut-off time. I was referred to a National Court decision of mine, Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611, in which I said (at 615):

"... In Papua New Guinea the Public Service retiring age is 55 years and I am of the view that that is the appropriate age to work on when assessing past and future loss of income."

Other judges have also taken a similar approach: see Tapi v Motor Vehicles Insurance (PNG) Trust; Aglum v Motor Vehicles Insurance (PNG) Trust (National Court, Judgment No N768, Bredmeyer J, 30 September 1988, unreported). They are, of course, only two cases amongst many that have concluded that 55 is the age on which to work.

Generally speaking, 55 is the proper age when assessing claims but to my mind it is by no means mandatory. There must be certain cases where 55 is only the starting point and the court might go up from there. It may even go down. Therefore I generally agree with Ms Thompson in her submission but I am also of the view that there are instances where the court will consider other ages as the age of retirement. In the present case, I see it as one of those instances.

The deceased was born on 20 August 1933 and he died on 18 March 1987. Therefore he was 53 years and seven months when he died. The plaintiff was 48 years at the time of her husband’s death and since the time they were married in 1957 they had produced seven children. The only child relevant to these proceedings is Roseanne who was born on 3 October 1972 and was 14 years and five months at the time of her father’s untimely death.

In his submissions, Mr Neill said the following about the deceased, which appears to be undisputed:

"The deceased was a qualified painter and decorator. He had two full time jobs in the period 1959 to 1972 when he worked at the abattoir from 4.00 am until noon; in the afternoons he did painting; at the week ends he played representative football for which he was also paid.

In 1964, he took on also the work of delivering groceries on Friday afternoons and Saturdays and that third job continued for ten years.

In 1968, he started working in a gymnasium on Monday evenings for which there was a small remuneration.

After 1972, he concentrated on his painting business which prospered because of his contacts from rugby league with the players and his contacts with church organisations, and most importantly because his customers were satisfied with the quality of his work and re-employed him time and again.

After 1972, he became very interested in coaching football and coached the Parramatta club to victory in the Premiers Cup. He obtained from the accreditation board certificates of coaching and in 1980, having been nominated by his club and selected by the accreditation board after completing the necessary course, he was given the Level III coaching accreditation which is the highest accreditation in the sport for coaching. The Level IV is reserved for few.

The facts show that he was a hard worker and, apart from his profession, he was resourceful enough to gain other employment. The evidence is that he intended to continue working and never contemplated retiring.

In 1983 he accepted a position in Papua New Guinea as the National Coaching Director of the Papua New Guinea Rugby League. He instituted a program for the accreditation of coaches and formalising the rules of the sport."

I have no doubt whatsoever that the deceased, all through his working life, was a hard-working man. He clearly was efficient and successful at his painting and decorating and he was also successful at coaching rugby league. Under no circumstances could he be called a poor worker. Clearly he was devoted to rugby league and that is why he eventually gave up his trade and went into football full time. From the evidence I am satisfied that he intended, if possible, to carry on full-time work in football when he returned to Australia. I am not so convinced that he was interested in returning to painting but it is certainly something that was there if he so desired. He had not been involved in painting for some time and I do not think it would be a simple step, after such time, to go back into the trade.

I am satisfied that because of his enthusiasm for work and his devotion and love of football that he would not have ceased working at 55 years of age. He did not show any inclination in that direction and I am of the view, that if health permitted, he would have kept working until he reached the common retiring age of 65 years. He was healthy and fit and certainly not the type of person who waits for the first possible opportunity to retire. Those types of people are often not very happy in their work. The deceased was in an entirely different situation. He was involved in the area he loved and on top of all that he was being paid for it. I also would have thought that he may not have been in a position, financially, to retire early.

It was submitted by Mr Neill that it was likely that the deceased would work in a part-time capacity after reaching 65 years and this could continue until he was 70 years. I am not satisfied that that would necessarily be the case. Frank Johnson gave evidence that he was 69 years old and still involved, part-time, in rugby league and being paid a salary. But as anyone connected with rugby league would know, Frank Johnson is a legend in his own time and people like him are few and far between. He played football for Australia and is exceptional. I am of the view that the deceased’s love of football was probably equal to that of Frank Johnson’s but his experience and expertise was not as great. On the evidence before me I could not say that the deceased would go on and earn an income after 65 years. His friend, Mr Royce, who was also a painter and decorator had already semi-retired even though he was a similar age to the deceased. He was a man who had been a painter and decorator all his working life and his enthusiasm must have dampened to some extent. That was when he was in his early fifties. To suggest that the deceased would undertake part-time painting after reaching 65 after being out of the trade for many years, to my mind is rather a brave suggestion.

How long would the deceased have stayed on as the National Director of the Papua New Guinea Rugby League? Clearly he was happy in the country. He had been here since mid-1983 and much of that time had been without his wife and children. That in itself would have been extremely distressing for him. He had a large family and he would, at times, have been very lonely. Needless to say, he stayed on, seeing his wife and children at irregular intervals. At times he would see them here when they visited and other times he would see them in Australia.

I am not fully informed of his contract situation with the Rugby League but it seems that he completed a three year contract and then negotiated a further short-term appointment to possibly be followed by a three year contract, ending in early 1991.

Would he have stayed on until 1991? The evidence indicates that in mid-1986 he was looking at a rugby league position in Australia but apparently he never actually lodged an application. It seems that at the time the separation from his family was causing strain. Needless to say he was still happy in Papua New Guinea and I am quite satisfied that the Rugby League hierarchy was happy with the job he was doing. In early 1987, his work permit was extended for 12 months which indicates to me that he was not intending to leave in the near future. He does not seem to have discussed with his wife any return to Australia at that time. He was also negotiating for a further and more lucrative contract.

Martin Adamson, the Executive Officer of the Papua New Guinea Rugby Football League gave evidence and I gleaned from what he said that there was no national person readily available at the time to take over the deceased’s position. I am also satisfied that he was of the view that it could be another two to three years before someone did become available. Therefore, it seems, that the deceased would have been welcome to stay to at least early 1991. I am satisfied, on the evidence, that the deceased had several projects that he wanted to complete before leaving the country and it would appear that when his contract had expired in 1991, that would have been the time to go. His work would be complete and he would be anxious to return to live, once again, with his family. A Papua New Guinean, in 1991, would also be ready to fill the role of National Director, hence there would be no need for the deceased to enter into a fresh contract.

The various relevant periods have been set out in the schedule of dependency calculations provided by the plaintiffs lawyer and I propose to refer to it as it is a very useful guideline.

For the period 18 March 1987 to February 1988, I am satisfied that the estimated economic loss per week for the plaintiff and Roseanne is correct but I agree with Ms Thompson’s argument that there should be a reduction for contingencies because the contingencies cover the life of the deceased as well as the plaintiff and child. I am of the view that the percentage reduction should be 20 per cent for the plaintiff and 10 per cent for Roseanne. Therefore the final damage will be K5,408 for the Plaintiff and K1,404 for Roseanne.

For the period February 1988 to February 1989, being the first year of the renewed contract on K20,000 gross per annum I am satisfied that the estimated economic loss per week for the plaintiff and Roseanne is correct at K130 and K30 respectively but, as in the previous period, I am of the view that there should be the same percentage reduction for contingencies. Therefore the final damages for the period will be K5,408 for the plaintiff and K1,404 for Roseanne.

For the period February 1989 to February 1991, being the balance of two years of the renewed contract, it seems that the calculation is incorrect in that it registers final damages for one year instead of two years. On the evidence, I am satisfied that the estimated economic loss per week for the plaintiff and Roseanne is correct at K120 and K40 respectively, but again I am of the view that there should be the same percentage reduction for contingencies. Therefore the final damages for the period will be K9,984 for the plaintiff and K3,744 for Roseanne.

For the period February 1991 to February 1994, I agree with the estimated economic loss per week because I am of the view that the deceased could quite easily have stepped into a coaching position or the like on his return to Australia. I am encouraged in that view after hearing what Frank Johnson said about the capabilities of the deceased and the availability of suitable positions although I doubt whether the deceased would have worked outside New South Wales as it would have meant being separated from his family again. I do not agree with the percentage reductions of 5 per cent for contingencies, they should be somewhat higher. I would have thought that 25 per cent for the plaintiff and 15 per cent for Roseanne would be more appropriate. Therefore the final damages for the period will be K23,594 for the plaintiff and K6,523 for Roseanne.

For the period February 1994 to February 1999, I agree with the estimated economic loss per week for the plaintiff in the sum of K212, but again I do not agree with the percentage reduction for contingencies. I would have thought that 30 per cent would be closer to the mark. Therefore the final damages for the period will be K35,991.

I do not allow anything for the period 1999 to February 2004. As I stated earlier in my judgment I am not satisfied that the deceased would have participated in part-time work after reaching the age of 65.

In relation to the deceased’s income not included in the weekly dependency calculations of the schedule, there are a number of matters with which I do not agree. I am of the view that for reasons already referred to there should be a percentage reduction for contingencies, keeping in mind that the deceased is also included. I am inclined to agree with some of Ms Thompson’s submissions under this heading although not in total. Whilst I approve of the sum allocated to the plaintiff I do not agree with the sum allocated to Roseanne. A more realistic figure for her would be about K1,000 less 10 per cent which equals K900. For the plaintiff the figure allocated, less 20 per cent for contingencies totals K4,589.

Finally, in relation to income that could be received from rugby media articles, I was not impressed with the evidence on that point. Although the deceased did write articles for the Niugini Nius, at no time was he ever paid. As far as I am aware he never wrote articles for any other publication either here or in Australia and I find it quite impossible, on the evidence, to say that he could have earned money from that source on his return. If that was such a certainty then I am somewhat surprised that he was not writing such articles in Australia before coming to Papua New Guinea.

Summary of Dependency Calculations on Basis of Regular Weekly Income from Employment:

Plaintiff 1987-88 K 6812 
 1988-89 6812 
 1989-91 13728 
 1991-94 23594 
 1994-99 35991 
Plaintiff subtotal  K86937 
Roseanne subtotal  K 6523 

Summary of Dependency Calculations on Basis of Gratuity, Superannuation from Papua New Guinea Football League Inc Contracts:

Plaintiff 1987-89 K 1966 
 1989-91 2622 
Subtotal  K 4588 
Roseanne 1987-91 K 900 

Grand Totals of Above Dependency Calculations:

Plaintiff K91525 
Roseanne 7423 
Total K98948 

In relation to the estate claim, I am inclined to agree generally with Ms Thompson in her summary of submissions that the estate is not entitled.

Reasons:

(a) The law in Papua New Guinea is that the estate is not entitled to maintain such a claim — see McLean v Carmichael [1969-70] PNGLR 333 and Vian Guatal v PNG [1981] PNGLR 230.

(b) Schedule 2.2 of the Constitution of Papua New Guinea provides that the common law in England as at the date of Independence shall be applied and enforced as part of the underlying law of Papua New Guinea.

(c) The common law in England as at the date of Independence was that the estate was not entitled to maintain such a claim — see Oliver v Ashman [1961] 3 All ER 323, therefore that principle of law must be adopted in Papua New Guinea as part of the underlying law.

I do not agree with the plaintiffs argument that the post-independence English cases did not develop the law, but simply declared the law as it really was, in relation to the claim for the lost years. I agree with what was said in the State v Allen Woila [1978] PNGLR 99 and Vian Guatal v PNG.

Even if I was to find that the plaintiff was correct, then I am of the view that that part of the common law is inapplicable and inappropriate to the circumstances of Papua New Guinea.

The reasons for saying that are as follows:

(a) When giving their decision in Gammell v Wilson [1981] 1 All ER 578 their Lordships expressed the view that the law had reached a state, in allowing claims for the lost years, for which there was no social, moral or logical justification.

(b) It is neither necessary nor desirable for the law in this country to be put in a similar state.

(c) Schedule 2.2 of the Constitution provides that the common law in England as at the date of Independence shall be applied as part of the underlying law, except where it is inapplicable or inappropriate to the circumstances of Papua New Guinea. I am of the view that a claim for the lost years is both inapplicable and inappropriate to the circumstances of Papua New Guinea and should not be applied as part of the underlying law of the country.

The estate claim is K1,500 for loss of expectation of life, a conventional sum fixed by the court, or at least approved by the Supreme Court, in Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251. Funeral expenses can be allowed by virtue of s 34(3)(c) of the Wrongs (Miscellaneous Provisions) Act (Ch No 297). In this instance the total funeral fees including the inscription cost was A$1099.45 (K814).

Therefore: K98948 
 1500 
 814 
Total K101,252 

As the maximum amount allowed under such a claim is K100,000 there will be judgment for the plaintiff in the sum of K100,000 plus interest of K2,868 calculated at 8 per cent from time of the issue of the writ up until the date of trial.

I order the defendant to pay the plaintiffs taxed or agreed costs.

Judgment accordingly

___________________

Lawyers for the plaintiff: William Neill.
Lawyers for the defendant: Young & Williams.