N983

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

NOLNGA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

5 June 1991
28 June 1991

DAMAGES - Fatal accidents - Measure of - Death of wife and mother - Husband and children claimants - Loss of mother’s financial support - Industrious and hardworking mother contributing to family income - Village cash economy - Salaried husband - Award of K2,000 per year to trial - Global award of K5,000 for future financial loss.

DAMAGES - Fatal accidents - Measure of - Death of mother - Claim by infant children - Increased risk of orphanhood - Child aged eleven years - Salaried father - Award of K1,000 reduced by 30 per cent.

A wife and mother was killed in a motor vehicle accident. The husband (a salaried public servant) brought a dependency claim on behalf of himself and the three children of the marriage aged nineteen, sixteen and eleven years. Prior to her death, the wife had been involved in producing income from pigs, coffee and the operation of a beer tavern, which income contributed to the income and standard of living of the family. After her death the husband needed to employ labourers and to pay his mother for extra help with the children.

Held

(1) On the basis that the deceased wife was a very industrious person, a sum of K2,000 per year should be awarded from the date of death to the date of trial and a further sum of K5,000 for future loss of financial support.

(2) A sum of K1,000 reduced by 30 per cent should be awarded for the increased risk of orphanhood in respect of the child aged eleven years.

Koko v Koko and Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 167, followed and applied.

Cases Cited

Koko v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 167.
Paine v Government of Papua New Guinea [1979] PNGLR 99.

Statement of Claim

These were proceedings in which the father of three children aged nineteen, sixteen and eleven years claimed for loss of dependency on behalf of himself and the three children following the death of the wife and mother in a motor vehicle accident.

Counsel

A Pryke, for the plaintiff.
A Kandakasi, for the defendant.
Cur adv vult

28 June 1991

WOODS J: The plaintiff is the widower of one Susanna Nolnga who was killed when the vehicle she was travelling in left the road and overturned throwing her out and causing her serious injuries and she died as she was being transferred from Tabibuga Health Centre to Kudjip Hospital. The defendant has admitted some liability for the damages and liability has been assessed at 70 per cent against the defendant and 30 per cent against the plaintiff. This case has therefore come before me on an assessment of the damages.

The accident happened in 1986 and at the time the plaintiff was a public servant working in the Department of Primary Industry at various locations within the Western Highlands Province. But as well he and his wife operated farming projects in the village involving pigs and coffee trees. Also they operated a beer tavern at the village. It must be accepted that with the husband working in a salaried job in the Public Service the deceased must have been doing a lot of the work in the pig and coffee operations and also in the tavern.

The plaintiff and deceased were married by custom in 1971 and had three children. The eldest Anna was born in 1972 and although she would now be about nineteen years of age she is attending Teachers Training College and is therefore still dependent. Martha was born in 1975 and is therefore now aged sixteen years and is attending High School and Simon the youngest was born in 1980 and is therefore now aged eleven years.

The plaintiff is claiming for the loss of the deceased’s involvement with helping to produce income from the pigs and from the coffee and from the operation of the tavern. As well she would have assisted with basic living requirements through gardening. The plaintiff claims that the pig project netted the family around K1,500 a year, the coffee trees between K2,000 and K3,000 a year. Further when the wife died the plaintiff found he could no longer run the tavern and he could not find anyone he could trust to help with the running of it.

In 1990, the plaintiff sought retrenchment from the Public Service to enable him to properly run the coffee trees and garden and also hopefully to re-operate the tavern.
It was submitted by the defendant that the plaintiff was only claiming on behalf of the loss of dependency for the children and that on the framing of the statement of claim the plaintiff is only entitled to the actual costs incurred in providing a substitute to care for the children. However, I cannot agree that the claim is so limited. Paragraph (XII) of the statement of claim clearly notes the plaintiff himself as claiming damages for the loss of his wife.

I have been unable to find any cases to assist with how one assesses the loss of such a hardworking mother in a family where the husband is a salaried employee. Although the case of Koko v Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 167 can help. Another case, Paine v Government of Papua New Guinea [1979] PNGLR 99, does help with the principles applicable for the loss of a mother’s services in the care of two small children.

There can be no dispute that the deceased was contributing a great deal to the income and standard of living of the family. And following her death, he had to employ labourers to help look after the coffee trees and gardens and also had to pay his mother some money for her extra help with the children.

Whilst Koko’s case above did involve the negligence of the husband it did point out that where the wife’s death has been caused by the negligence of a third party the husband can recover damages for such things as the cost of a substitute housekeeper. Further, the principles involved would apply to the loss of the wife’s efforts to improve the income for the family namely, that whilst the children may lose some of the benefit, it is a benefit that is due from the father as it is his obligation at law to provide for the children and therefore the loss of the wife’s efforts is his loss.

So whilst Koko’s case was concerned with the pecuniary loss to the children, I am prepared to accept these figures to find the loss to the father of the efforts of the mother to help him with the care and support of the children. These figures would cover part of the wife’s share of support for the household from her work with the coffee and the garden. So I would allow a figure calculated at the rate of K3.50 per week for each child until they attain eighteen years.

For Anna it would only be for four years so that would be K3.50 x 52 x 4 = K728. For the other two children to date, it would be K3.50 x 52 x 4.9 x 2 = K1,784.

For the future loss with respect to the obligation for the children it would be for Martha, K3.50 at 3 per cent for 1.9 years K339 and for Simon, K3.50 at 3 per cent for 7.5 years K1,228.

However, the father has lost more than the amounts calculated for each child. I do not find that he can be compensated for the whole of the alleged loss of income from his tavern. Further, I am not sure that I can accept the figure of K70 per week as the profit from the tavern. Running a tavern is a more formalised business and therefore any amount claimed as loss of profits must be proved by appropriate returns or accounts. The plaintiff was a salary earner, therefore, if he had other income from a business he would have had to disclose it in his tax return which would provide the evidence of the loss. The only evidence on the loss of her involvement with the tavern is his own statement of K70 per week. However, that would not be solely from her efforts anyway, as quite clearly, such a business would be mainly run by himself.

But I am prepared to find some financial loss to the plaintiff for her death over and above the extra burden on him for the children. I will have to come to an estimate of her work in the cash rural projects. I am prepared to assess, on the basis that I am satisfied she was a very industrious person, a figure of K2,000 per year. From 1986 to now, that is K2,000 x 4.9 years = K9,800.

However, for the future I am not sure that I can find this loss on the same basis. In the social context of Papua New Guinea, it is more than likely that the plaintiff will take another wife so there will be less financial loss. So I find a total amount of K5,000 for future loss of the deceased as an income producing member of the family.

The plaintiff is also claiming for increased risk of orphanhood for the younger children. With Martha being now about sixteen years of age, I can see no basis for any claim in relation to her. But Simon is only eleven years old so is there a valid claim there? Such a claim was discussed in detail and accepted in the Koko case already referred to. I will not attempt a complicated calculation based on age and number of years but instead I will do what the judge did in Koko’s case and award an amount of K1,000 for Simon.

Some of the above figures should include interest namely, the figures for to date from the date of issue of the writ.

To summarise for the plaintiff:

Loss in respect of the children to date 2,512.00 
Interest at 4 per cent from date of writ 189.55 
Future loss in respect of children 1,567.00 
Loss to plaintiff to date 9,800.00 
Interest at 4 per cent from date of writ 741.04 
Future loss to plaintiff 5,000.00 
 19,809.59 
Less 30 per cent contributory negligence 5,942.87 
 K13,866.72 

The K1,000 from increased risk of orphanhood does not go to the plaintiff but must be invested for Simon and it also must be reduced by 30 per cent namely, by K300 to K700.

I award damages totalling K14,566.72. The sum of K1,500 has already been paid as the Basic Protection payment and thus K12,366.72 is yet to go to the plaintiff and K700 is to be paid to the Registrar to be invested on behalf of Simon Nolnga until he attains the age of eighteen on 30 December 1998.

Judgment accordingly

___________________

Lawyer for plaintiff: Henao Cunningham Priestly.
Lawyer for defendant: Young & Williams.

[1991] PNGLR 440 - Kuntu v MVIT