Paula v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 4; N1032 (3 February 1992)

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NEGLIGENCE - Of driver of motor vehicle - Claim by widow and children of victim

DEPENDENCY CLAIM - Change in method of calculating dependency claims; Interest on awards

The plaintiff brought a claim on behalf of herself and her minor children for compensation for the death of her husband due to a motor vehicle accident caused when the 15-seater bus on which he was riding ran into the back of a Semi Trailer stopped at the side of the road. Plaintiff claims negligence on the part of either the driver of the vehicle her husband was on or the driver of the truck in stopping on the highway. The claim was brought against the Trust as insurer of both vehicles. The Trust denied liability.

Whether the driver of the vehicle was negligent in his driving of the vehicle. The basis of awards of and the mode of assessing damages on dependency claims.

That as there was no evidence to show why the bus crashed into the parked truck (i.e., no evidence, for example that the driver was blinded by ights of oncoming vehicles) the Court can only find that the driver was negligent in the manner in which he drove the vehicle.

Awards for dependency claims following death are to be divided into two parts: the first being the actual pecuniary loss to the dependents up to trial date, calculated as special damages; and the second being future pecuniary loss to the dependents from trial date onwards calculated with respect to the earnings of the deceased.

WOODS J: The Plaintiff is the widow of one Peter Kalpi who was killed in a motor vehicle accident which occurred on the 22nd October 1989 on the Highlands Highway a short distance out of Kundiawa. The deceased was a passenger on a Nissan 15 Seater bus registed No AGC 171 driven by Jacob Naul which ran into the back of a Semi Trailer registered No AFQ 153 which was stationary at the side of the Highway. The accident happened about 3 am in the morning. The Plaintiff alleges the accident was caused by the negligence of either the driver of the vehicle her husband was on or the negligence of the driver of the truck in stopping his truck on the Highway. The claim is brought against the Motor Vehicles Insurance (PNG) Trust as the Insurer of both motor vehicle.

Constable Alex Azepo gave evidence that he was a Constable based at Kundiawa and on the night of the accident he was on call at the Barracks and was called out to attend the scene. He estimates he arrived at the scene within about half an hour of the accident, it occurred 2 or 3 kilometres out of Kundiawa. He found the Bus had run into the rear of the truck and all the injured persons had already been taken to Hospital but there were 3 dead bodies still there. He transported these 3 bodies to the Hospital Morgue. The next day one of the bodies was identified to him by a relative as Peter Kalpi. At the scene the Constable noted that the truck was not showing any lights although being parked partly on the bitumen. The Constable also said he searched the vehicle for any evidence of drinking of alcohol but could not find any. The Constable submitted his Road Accident Report which showed the details of the 2 vehicles involved, their registration numbers and insurance numbers and the ownership, presumably these were obtained from his own investigation and from Official Police Motor registry records.

A witness ANTON MONDIA gave evidence of being in the bus that night having got on with the deceased and how the driver was driving a bit fast and ran into the back of the Semi Trailer which was parked without any lights on the side of the Highway. He said there was a bit of rain around and some mist coming off the roadway. He denies he was with the driver of the bus drinking that night. When asked why they were travelling home at that hour of the morning he said they had been into Kundiawa that day and from the evening they had been waiting for a PMV to get home. Although some of the people may have gone off to the disco or hotel he had waited around till Jacob came with the bus to give them a ride home.

Whilst the Defence suggested in cross examination that the Deceased and the Driver may have been drinking that night there is no evidence to support that. Whilst the truck may have been parked without any lights there is no reason in the evidence for the driver of the bus to have crashed into it, there is no evidence of him beng blinded by oncoming lights. I therefore find the accident and therefore the death of Peter Kalpi was caused by the negligent driving of Jacob Naul and he is liable in damages for the death of Peter Kalpi. The vehicle being registered and insured the Trust is therefore liable.

The deceased was aged about 25 years at the time of his death and was employed as a mechanic by the Wamp Nga Group. Evidence from an officer of the Company shows that he was earning K123.39 net each fortnight after tax and NPF deduction. His wife said in evidence that he used to give her between K50 & K80 per fortnight. I am satisfied on the evidence of the officer of the Company even though he did not produce the actual pay sheets as the salary appears to be in the appropriate range for a mechanic and there is no evidence to dispute the evidence that he was a mechanic. It appears according to the wife that he lived in Mt Hagen and used to come home to Mingende every fortnight to give her money. Like most wives being in the rural area she was active with garden work and a coffee block.

One must assume that he did not participate in the garden or coffee activity as he was living and working in Town.

Being a mechanic and so employed at his death I am entitled to assume that he may have stayed in such employment till a normal retiring age. I agree with the authority of Jones v M.V.I.T. [1988-89] PNGLR 611 that 55 years is the appropriate age to work on when assessing future loss of income so I will extend that principle to claims for dependency.

So I assess the dependency loss of the widow for 30 years from aged 25 at death to 55 years. The son John was aged 2&half at the date of death having been born in January 1987.

I will assess the benefits to the wife and child, according to the Plaintiff's evidence, at K70 per fortnight out of the take home pay of K123. This means K35 per week which I will apportion to K25 per week to the wife and K10 to the child John. I realise that the widow also had benefits from gardening and some coffee but that does not affect the benefits she was receiving from her husband and which would have improved her life style.

There are always contingencies to consider that the deceased may have died before 55 years of age or become unemployed but on the other hand his situation may have improved so those contingencies balance out. But there is a very real contingency that the widow may remarry and I feel that that is highly likely considering her age and she only has one child. So I will reduce her allowance by a contingency if 25% on future loss and I will allow a contingency of 5% on the child on future loss.

I will allow for the dependency of the child John till 18 years of age as it would have been and still is highly likely that the father being a skilled tradesman would have kept him at school till the end of High School at least.

I have become increasingly conscious that the National Court has made no distinction in dependency claims between loss occuring prior to the trial and future loss. The Court does calculate such losses in injury matters as pre-trial and future loss. It is time for the National Court to be consistent in all such claims. In England the change of practice in dependency claims was largely brought about by the case of Cookson v Knowles [1977] Q.B 913 the Court of Appeal and affirmed by the House of Lords [1978] UKHL 3; [1979] AC 556.

In that case the Court held that because of inflation, awards following death were to be divided into two parts, the first part being the actual pecuniary loss to the dependants upto the date of trial calculated arithmetically like special damages and the second part being future pecuniary loss to the dependants from the date of the trial onwards calculated by taking the earnings which the deceased would have been receiving at the date of trial and then applying an appropriate multiplier. Interest should be awarded in respect of the first part of the award only and should be calculated at half the appropriate rate being as it is interest on monies that would have been received in successive instalments throughout that period.

No interest should be awarded in respect of the second part of the award. Note therefore, that the change in the method of calculating the damages also affects the way interest is awarded and this changes the principles the Court has applied since Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130, and followed in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Cookson v Knowles changed these guidelines and I must so follow those new guidelines.

Loss to date of Judgement being for 2 years and 15 weeks is K2,975 for the plaintiff plus interest at 4% being K235 total K3,210 and K1,190 for the son John plus interest at 4% being K94 total K1,284.

	Year Depending		Es Ec Loss		Multiplier	Total
Plaintiff	28		25		994		24850
John	13		10		563		5630
Less Contingency		Total		Past Loss		Total
25%		18,637.50		3,210		21,847.50
5%		5348.50		1284		6,632.50
						K28,480.00

I order Judgement for K28,480.00. From this amount the sum of K6,632.50 is to be paid to the Registrar to be invested on behalf of John Gamba until he attains the age of 18 years which shall be deemed to be 1st January 2005.

The Registrar may apply up to K500 each year out of John's money for his education and maintenance. Such monies to be paid to the school concerned and to the mother.

National Court of Papua New Guinea

Paula v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 4; N1032 (3 February 1992)