N1187

PAPUA NEW GUINEA
[In the National Court of Justice]

WS 862 of 1991

ALU KOSAM

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen: Woods, J
18 October & 17 November 1993

Negligence - Motor Vehicle Accident - Liability apportioned at 50% - dependency claim - parents and children - female school teacher.

Cases cited:
Nolnga v MVIT [1991] Unreported, N983

P. Kopunye for the Plaintiff.
A. Kandakasi for the Defendant.

17 November 1993

WOODS, J.: This is a claim on behalf of the parents and children of one Susan Kosam who died from injuries when she was struck by a vehicle driven by her husband near Banz on 5 April 1991. There has been an agreement of liability to be apportioned at 50%. This is a dependency claim by the parents for the support to be expected from a salaried daughter during the remainder of their lives and the support both material and as a mother to be expected by the 3 children of the deceased until they attain the age of 18 years.

At the time of her death the deceased and her husband were both teachers at the Fatima Community School near Banz and they had 3 young children aged 5 years, 2 years, and one year.

It is submitted by the defendant that the statement of Claim did not show full particulars of the claim for dependency and loss of the mother on behalf of the children and as Order 33 in effect is a code of pleading if the particulars are not pleaded then the court cannot find for the claim.

However the Statement of claim clearly states that the claim is on behalf of the parents and children for the loss of the mother. The details of the parents and children is set out in clause 3 of the Statement, Clause 3 sets out the names and ages of the children. What else is needed, nothing as they are clearly not in employment. The salary of the deceased is in the pleadings. Of course it is up to the court how much should be considered from the deceased mother considering the father of the children is equally employed.

I am satisfied that the pleadings are sufficient to allow the plaintiff to claim some loss of dependency on behalf of the parents and children. Whilst it is submitted on behalf of the defendant that the evidence of the birth and dependency of the 3 children is unclear I am satisfied on the evidence before the court which includes documents from the Department of Education accepting the dependency of the 3 children.

There can be no doubting that the deceased through her employment would have contributed significantly to the financial support and standard of living of the family and through her loss the children may not get the same level of support or standard of living as they may have expected. Already it appears that they may be moving between the father and his new wife in Lae and the deceased's parents in the Western Highlands so whilst the legal obligation of support may still be with the father there is some loss from the death of the deceased.

Also the deceased being in salaried employment her parents would have expected some support from her during their lifetime, perhaps sporadic whilst they were still fit but increasing as they got older and less able to work in their gardens for themselves.

I refer to the case Nolnga v M.V.I.T. [1991] Unreported N983 where figures were estimated for the loss suffered by the children following the death of the mother where the mother did actively contribute to the income and standard of living of the family and children. I note that the income of the deceased was K111 per fortnight and thus K55 per week. I feel that it is not inappropriate to assess that the children may each have benefited to the value of K10 each per week from the mother. For past loss from the date of death to the date of judgement being 2 years and 32 weeks that assesses at K1,360 for each of the 3 children. The future loss for each child would be; for Jayson K10 for 10 and a half years @ 3% is K4,700, for Nancy K10 for 13 and a half years @ 3% is K5,800, and for Stephanie K10 for K14 and a half years @3% is K6,200.

The parents claim is harder to quantify. The loss at present is based on the occasional amounts given at infrequent intervals. The evidence talks of amounts of K10 or K20 and gifts of food at infrequent intervals. I am prepared to average such out at K4 each per week for the lifetime of parents. The parents appear to have been about 45 years at the date of the deceased death and according to life expectancy tables I will allow for the dependency until 65 years thus for 20 years each. The past loss therefore would be K4 each for 2 years 32 weeks totalling K544 each. Future loss would be K4 for 20 years at 3% is K3152.

I would allow 4% interest on the past loss.

To summarise:

	Past Loss	Interest Future	Total Loss	Less 50%		
Alu Kosam	K 544	K 57	K3,152	K3,753	K1,876.50	
Kora Kosam	K 544	K 57	K3,152	K3,753	K1,876.50	
Jayson	K1,360	K142.48	K4,750	K6,252.48	K3,126.24	
Nancy	K1,360	K142.48	K5,800	K7,302.48	K3,651.24	
Stephanie	K1,360	K142.48	K6,200	K7,702.48	K3,851.24	

There will be 50% of the estate claim which would be K750 which would go to the father.

There has been some traditional compensation which I would estimate being 3 pigs worth about K1000 plus the cash to total K2000 which amount would be deducted from the parents total.

Alu Kosam	K 1,526.50	
Kora Kosam	K 876.50	
Jayson	K 3,126.24	
Nancy	K 3,651.24	
Stephanie	K 3,851.24	
	K13,031.72	

I order Judgement for K13,031.72. The usual orders for investment of the children's awards.

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Lawyer for the Plaintiff: Kopunye Lawyers
Lawyer for the Defendant: Young & Williams