Komba v Duwaba [2006] PGNC 218; N2979 (21 February 2006)

N2979

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 504 OF 2001

PAUL KOMBA
Plaintiff

V

NAULI DUWABA, THE HEADMASTER, TABUBIL HIGH SCHOOL
First Defendant

JOHN WAKON, COMMISSIONER OF POLICE
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Mt Hagen: Cannings J
2004: 16 November,
2006: 21 February

DAMAGES – negligence – death of school student – dependency claim by parent of deceased – 16-year-old boy – whether a parent can be regarded as dependent on a child over the age of 16 years – whether dependency claim can be sustained – general damages for loss of support – plaintiff awarded total damages of K47,660.00 – plus interest.

The plaintiff brought a negligence action against a school headmaster, the Commissioner of Police and the State following the death of his son, a school student. The defendants did not file a defence and the court entered default judgment against them. A trial was held on assessment of damages.

Held:

(1) The default judgment resolved most questions of liability in respect of the matters pleaded in the statement of claim.

(2) Therefore the first defendant, the school headmaster, was negligent. However, he had not been notified of the trial or even the default judgment so he was absolved of liability. The second defendant, the Commissioner of Police, was found not to be negligent as a cursory examination of the issues disclosed that there was no cause of action against him. The third defendant, the State, was vicariously liable to the plaintiff for the consequences of the first defendant's negligence.

(3) In assessing a dependency claim by a parent who has lost the support of his or her child, the court is entitled to consider that the PNG family unit typically involves a much more complex, intricate set of interdependent relationships than in western societies, from where some of the principles governing dependency claims have emerged.

(4) The best approach to take is to consider each case on its merits, free of the strictures of a western or common law prism, and ascertain whether, in fact, a parent who is a plaintiff was or was likely to be dependent on a child.

(5) The plaintiff was awarded damages comprising: dependency loss of K24,960.00; special damages for funeral expenses of K19,700.00; and an estate claim of K3,000.00. The total award of damages was K47,660.00. The State was also liable for interest of K7,648.20, making a total judgment lump sum of K55,308.20.

(6) Costs were awarded to the plaintiff.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518
Albert Baine v The State (1995) N1335
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182
Inabari and Another v Sapat and The State [1991] PNGLR 427
Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167
Jonathan Mangope Paraia v The State (1995) N1343
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331
Makire Napiri v The State (2006) N2976
Muna Uokare v The State [1988-89] PNGLR 655
MVIT v Pupune [1993] PNGLR 370
MVIT v Reading [1988] PNGLR 236
MVIT v Tabanto [1995] PNGLR 214
None v MVIT [1990] PNGLR 561
Obed Lalip and Others v Fred Sikiot and The State (1996) N1457
Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694
Peter Wanis v Fred Sikiot and The State (1995) N1350
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Puk Kum v The State, WS No 44 of 1996, 12.09.03, unreported
Reading v MVIT [1988] PNGLR 266
Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
Simin Dingi v MVIT [1994] PNGLR 385
Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247
Tapi V MVIT [1990] PNGLR 568
Waima v MVIT [1992] PNGLR 254
William Mel v Coleman Pakalia and Others (2005) SC790
Yange Lagan and Others v The State (1995) N1369
Yooken Paklin v The State (2001) N2212

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for the death of a boy caused by the negligence of a school headmaster, following the entry of default judgment.

Counsel

P M Dowa, for the plaintiff
H D Polume-Kiele for the defendants

JUDGMENT

21st February, 2006

1. CANNINGS J: This is a case about assessment of damages. The plaintiff's son, a schoolboy, died and the plaintiff brought a negligence case against a school headmaster, the Commissioner of Police and the State. He claimed that the school headmaster and police officers were negligent and their negligence caused his son's death. The defendants did not file a defence and the court entered default judgment against them. The case then came on for trial for assessment of damages.

2. On 13 October 2000 the plaintiff's son, Gibson Komba, died in mysterious circumstances at Tabubil, Western Province. The plaintiff, Paul Komba, is from Suringki, Laiagam District, Enga Province. He was employed in Tabubil as mess supervisor for Fubilan Catering Services. He was living in Tabubil with his wife and family. Gibson was a student at Tabubil Provincial High School. At the time of his death he was aged 13.

Statement of claim

3. On 24 April 2001 Paulus M Dowa Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff.

4. The writ was served on the first defendant on 10 May 2001 and on the second and third defendants on 21 May 2001. The statement of claim endorsed on the writ alleged that on the morning of Friday 13 October 2000 Gibson left home to go to school at 7.30 am. However, no lessons were held that day. A holiday was declared for students and staff. The students left school. Some senior students enticed Gibson to go with them to the Ok Tedi River. An hour later he was dead. His body was found floating on the river. He died due to severe blows to his head, a fractured neck and, possibly, drowning.

5. It was claimed that the first defendant, the headmaster Nauli Duwaba, was negligent as:

• he owed a duty of care to properly supervise classes;
  
• he failed in his duty by cancelling classes without authorisation and without notifying the deceased and his parents and by failing to keep the school under control.
  

6. It was claimed that the police, through the second defendant the Commissioner of Police, were negligent as:

• despite repeated requests by the plaintiff and his lawyers the police failed to conduct any investigation into the death of the deceased; and
  
• the people responsible have never been brought to justice.
  

7. It was also claimed that the first and second defendants' acts and omissions were unconstitutional and unlawful. (However, no constitutional provisions were cited in support of this claim.)

8. The statement of claim was framed as a dependency claim. The plaintiff claimed that he and others were dependent on the efforts of the deceased. He was a bright student, doing grade 7. He had good educational and work prospects. He contributed to the welfare of his family prior to his death as he was an artist. He used to paint and print and he made a lot of money for his family.

9. The plaintiff sought the following remedies:

• general damages;
  
• damages for breach of constitutional rights
  
• exemplary damages;
  
• special damages;
  
• an estate claim of K3,000.00.
  

Events since service of writ

10. None of the defendants gave notice of intention to defend or filed a defence. On 28 September 2001 Sakora J ordered that default judgment be entered against them and the matter be set down for assessment of damages.

11. In November 2004 the trial was held at Mt Hagen.

PLAINTIFF'S EVIDENCE

Outline

12. Two affidavits were admitted into evidence and the deponents were subject to cross-examination. The first affidavit was by the plaintiff, who gave oral evidence and was subject to cross-examination. The second affidavit was by a doctor who conducted a post-mortem on the deceased. The doctor was not required for cross-examination. His affidavit was admitted by consent.

The affidavits

13. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS
TENDERED BY PLAINTIFF

Exhibit	Description	Content
A	Paul Komba, plaintiff, 08.01.04	This affidavit gives an account of the circumstances in which the deceased died, where the post-mortem examination was conducted and the plaintiff's unsuccessful attempts to get the police to investigate. As to the effect of his son's death the plaintiff states: his son was a bright student – he used to draw and paint attractive designs – in 1997 his mother ordered tee-shirts and laplap for him to print his designs on – they made a profit of K30,000.00; his son's body was taken from Tabubil to Mt Hagen, then to Laiagam for burial; he spent over K72,000.00 in funeral and related costs (the details of which are itemised); he has suffered psychologically, emotionally and financially.
B	Dr Mathias Tovilu, MBBS, DCH, MMED, 22.07.02	He is a doctor attached to Mt Hagen General Hospital. He conducted a post-mortem examination and provided a medical certificate of death re Gibson Komba on 18 October 2000. The post-mortem report (annexure A) concludes that the deceased died of bleeding around his brain and a broken neck sustained by a blunt trauma on the left side of his head. He did not drown and did not die straight after the trauma. The medical certificate of death (annexure B) states that Gibson Komba died on 13/10/2000 at Ok Tedi River due to a sub-dural haematoma and broken neck, caused by a blunt trauma on the left side of the head.

14. Annexed to the plaintiff's affidavit was a tribute to Gibson prepared by his class patron at Tabubil High School, Mrs Peta:

LATE GIBSON KOMBA'S REPORT

Late GIBSON KOMBA was a member of Grade 7B class of Tabubil High School. Out of 38 students, he was the smallest in his class and also the School as a whole. He was not matured enough to make his own decisions and was easily influenced by others. He likes to have fun and always had something to offer in class to make the classroom alive and full of laughter. He also willingly offers to help in doing any organized activities. He had put in a lot of effort in producing educational posters for the classroom; because he loves drawing. He was also an active participant in Sports and Work Parade.

When a teacher calls his name, he replies with a smile first before he could speak or say anything, and it is that smile that makes him look very innocent.

GIBSON above all things that you have done while here with us, it is your SMILE that we are going to miss a lot. For those of us who were part of your daily lives, we will miss mentioning your name.

GIBSON, though it was too early to take your smile away from our face, we say YAWO and Rest in Eternal Peace.

By: Mrs I Peta

7B Class Patron – Year 2000

Oral evidence

15. The plaintiff Paul Komba adopted his affidavit in examination-in-chief. He confirmed that he had spent more than K70,000.00 in funeral-related expenses. He said that the statement of claim, which claims only about K19,000.00 for funeral expenses, understated the amount he spent. He paid for funeral feasts in both Tabubil and Enga.

16. In cross-examination Paul Komba said that Gibson was born on 6 December 1986. After he went to school on 13 October 2000 the teachers declared themselves a holiday and took the day off. Ms Polume-Kiele asked why the post-mortem was done in Mt Hagen. He replied that the police and a magistrate signed a document for a doctor in Tabubil to do it but the doctor did not want to do it. He did not refuse in writing. It was a verbal refusal. He did get a death certificate but he took it to Mr Hagen and gave it to the doctor there.

17. He took Gibson's body by air from Tabubil to Mt Hagen on 18 October 2000. He was supposed to be going on recreation leave in December 2000 but he brought his leave forward. Ms Polume-Kiele put it to him that the tickets he has annexed to his affidavit did not correspond with what he was saying. He responded that he definitely travelled on 18 October 2000. Paul Komba was asked about the claim in his affidavit that at one stage the family had made K30,000.00 from work done on tee shirts and lap laps by Gibson. He used the money to buy a vehicle, he said.

18. In re-examination Paul Komba said that he continued to spend money arising from the death of his son until 2002, which explains why some of the documents annexed to his affidavit showed expenditure being incurred for some time after the date of death, 13 October 2000. That ended Paul Komba's evidence.

19. There was no further evidence called and the plaintiff's case was closed.

DEFENDANTS' EVIDENCE

20. The defendants offered no evidence.

ROLE OF TRIAL JUDGE WHEN MAKING ASSESSMENT OF DAMAGES FOLLOWING ENTRY OF DEFAULT JUDGMENT

21. This issue was recently addressed by the Supreme Court in William Mel v Coleman Pakalia and Others (2005) SC790, Los J, Jalina J, Cannings J. The court endorsed the principles expressed by Kandakasi J in the National Court in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182 and by the Supreme Court in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J. The trial judge's role is:

• to make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; and
  
• if the facts and cause of action are reasonably clear liability should be regarded as proven, ie the default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim;
  
• only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability;
  
• the plaintiff has the burden of producing admissible and credible evidence of the alleged damages;
  
• any matter that has not been pleaded but is introduced at the trial is a matter on which the defendant can take an issue on liability.
  

22. These points require emphasis as the defendants' counsel made a number of submissions which seemed to invite the court to intensively revisit the issue of liability.

THE CAUSE OF ACTION

23. Apart from part of the claim that alludes to breach of constitutional rights (which was, in effect, not pursued at the trial), this is a common law action for negligence brought within the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). Specifically the action arising out of the deceased's death falls into two parts:

• the father's dependency claim under Part IV (wrongful act or neglect causing death) of the Wrongs (Miscellaneous Provisions) Act; and
  
• an estate claim under Part V (survival of causes of action).
  

(For an explanation of the distinction between the two parts of an action arising from the death of a dependant see Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167, National Court, Bredmeyer J, at p 168 and Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78, Supreme Court, Los J, Brown J, Sakora J, at pp 88-89.)

Dependency claims

24. Part IV of the Wrongs (Miscellaneous Provisions) Act ensures that if a person causes the death of another person, by wrongful act, neglect or default, the first person, the 'wrongdoer', has a continuing liability to the relatives of the second person, the deceased. These provisions preserve the cause of action that the deceased would have had against the wrongdoer, if the deceased had not died. Part IV is a standard piece of legislation found in many common law jurisdictions. It overcomes the position of the common law, which was that a person's cause of action dies with the person. The key provisions of Part IV for the purposes of the present case are Sections 25, 26, 28 and 29.

25. Section 25 imposes liability on the wrongdoer or the person (in this case, the State) vicariously liable for the wrongdoer's actions. Section 26 prescribes the relatives to whom there is liability. Other provisions of Part IV, which consists of Sections 24 to 33, regulate that liability.

26. Section 25 (liability for death wrongfully caused, etc) states:

Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and notwithstanding that the death has been caused under such circumstances as amount in law to an offence.

27. Section 26 (actions under Section 25) states:

(1) An action referred to in Section 25 shall be for the benefit of the wife, husband, parent and child of the deceased person, and a person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the person deceased.

(2) In the case of the death of a native within the meaning of the Interpretation Act 1975, an action referred to in Subsection (1) may be for the benefit of the persons who by custom were dependent on the deceased immediately before his death, in addition to the persons specified in that subsection.

28. Section 28 (amount of damages) states:

(1) In an action referred to in Section 25, the court may award such damages as it thinks proportioned to the injury resulting from the death to the respective parties for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those parties in such shares as the court directs.

(2) In an action referred to in Section 25, damages may be awarded in respect of medical expenses incurred as a result of the injury causing the death, together with reasonable expenses of the funeral or cremation of the deceased person (including the cost of erecting a headstone or tombstone over the grave of the deceased person), if those expenses have been incurred by one or more of the parties for whose benefit the action is brought.

29. Section 29 (solatium to parents of child wrongfully killed) states:

(1) In this section, "parent" means—

(a) where the child has been adopted, the adopted father or mother of the child; and

(b) where the child has not been adopted, the father or mother of a legitimate child and the mother of an illegitimate child.

(2) In an action referred to in Section 25 in relation to the death of a child after 25 July 1968 (being the date of commencement of the pre-Independence Law Reform (Miscellaneous Provisions) Act 1967) the court may award such damages, not exceeding K600.00 in the aggregate, as the court thinks just, by way of solatium for the suffering caused to a parent by the death of the child.

(3) When both parents bring an action to recover the sum of money payable under this section, the amount recovered, after deducting the costs not recovered from the defendant, shall be divided between the parents in such shares as the court directs.

(4) Where both parents survive the child and one of them does not join in bringing an action under this section, the other may bring an action for such amount as he claims to be due to him.

(5) In an action brought to enforce a right conferred by this section the court may, in its discretion, refuse to order the payment of any sum by way of solatium if, having regard to the conduct of the plaintiff in relation to the deceased person, or to the relations that existed between the plaintiff and the deceased person, or for any other sufficient reason, it thinks that no such payment should be made.

(6) The rights conferred by this section are in addition to, and not in derogation of, any rights conferred on a parent by any other provision of this Act.

(7) The cause of action conferred on a person by this section does not, on his death, survive for the benefit of his estate.

Estate claims

30. Part V of the Wrongs (Miscellaneous Provisions) Act ensures that if a person dies his or her estate can be sued or can sue, as if the person had not died. Part V consists of just one section, Section 34 (effect of death on certain causes of action). It has six subsections, the most important one for the present case being subsection (1).

31. Section 34(1) states:

Subject to this section, on the death of a person ... all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate. [Emphasis added.]

Common law

32. The common law of negligence has been adopted as part of the underlying law of Papua New Guinea. It continues to be applicable and appropriate to the circumstances of the country, except to the extent it is inconsistent with or has been modified by a written law. It applies, generally, in this case by virtue of Section 20 of the Constitution and Sections 3(1)(b), 3(3), 4(1), 4(3)(b), 4(4), and 5 of the Underlying Law Act 2000.

33. To establish liability a plaintiff needs to satisfy the basic elements of the tort of negligence, which in this case mean:

• first, that the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff's son;
  
• secondly that the tortfeasor breached that duty, ie by act or omission the tortfeasor's conduct was negligent;
  
• thirdly that the tortfeasor's negligent conduct caused the death of the plaintiff's son;
  
• fourthly that the type of injuries the deceased suffered are not too remotely connected to the tortfeasor's conduct; and
  
• fifthly that the plaintiff's son did not contribute to his own death, eg by being contributorily negligent or voluntarily assuming the risk of injury.
  

(See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)

Vicarious liability

34. Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons (such as the school headmaster and the police officers) over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act.

35. Section 1 states:

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—

(a) in respect of torts committed by its servants and agents; and

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connexion with the execution of judicial process.

This case

36. I am satisfied that the statement of claim adequately pleads at least one cause of action in negligence. Specifically:

• The first defendant, the school headmaster, committed the tort of negligence by failing to take reasonable care to supervise the deceased on 13 October 2000. On the face of it he is personally liable to the plaintiff for damages. However, I am not satisfied that he was given notice of the trial or that he was even served with a copy of the default judgment against him. He therefore has no liability.
  
• The third defendant, the State, is vicariously liable to the plaintiff for the negligence of the first defendant. That is the cause of action that is at the centre of this trial.
  

37. Despite the entry of default judgment against him, I am not satisfied that there is any cause of action against the second defendant, the then Commissioner of Police, John Wakon. The complaint against the police is that they failed to investigate the death. There is an argument to say that that failure added to the anguish and distress of the plaintiff. However the elements of such a cause of action are not well articulated in the statement of claim. The second defendant therefore has no liability.

PRINCIPLES FOR ASSESSMENT OF DAMAGES

38. The principles to apply when the court is assessing damages can be summarised as follows:

• The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person's case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia AJ.)
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
  
• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
  
• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
  

THE MAJOR ISSUE

39. The only issue in this case is to work out a proper assessment of damages.

PLAINTIFF'S SUBMISSIONS

40. Mr Dowa submitted that the plaintiff should be awarded the following kina sums:

Dependency loss	:	K	26,000.00
Exemplary damages	:		35,000.00
Special damages			43,200.00
Estate claim	:		3,000.00
Interest	:		30,016.00
Total	:	K	137,216.00

DEFENDANT'S SUBMISSIONS

41. Ms Polume-Kiele submitted that the court should award nothing to the plaintiff as the claims for damages had not been substantiated. Relying on Jonathan Mangope Paraia v The State (1995) N1343, she emphasised that it is not sufficient for a plaintiff to simply provide a list of items and say to the court: 'This is what I have lost. I ask you to give me the damages.'

WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED TO THE PLAINTIFF?

Comments

42. Assessing damages in this case is not straightforward as the submissions do not match the remedies sought in the statement of claim. The evidence and the submissions must always dovetail into the statement of claim. That did not quite happen in this case. This is apparent from table 2, which is a comparison of the categories of damages sought in the statement of claim and the categories of damages claimed in Mr Dowa's submission.

TABLE 2: COMPARISON OF CATEGORIES OF DAMAGES
SOUGHT IN STATEMENT OF CLAIM AND SUBMISSION

Statement of claim	Submission
General damages	Dependency loss
Damages for constitutional rights [sic]	Exemplary damages
Exemplary damages	Special damages
Special damages of K19,700.00	Estate claim
Estate claim of K3,000.00

43. If the submission had been well structured the categories of damages claimed by it would have been the same as those pleaded in the statement of claim. The inadequacies of the submission have exacerbated the inadequacies in the statement of claim. This does not mean that the plaintiff gets nothing. The court should exercise a certain amount of flexibility in dealing with shortcomings in the way a plaintiff's case has been put together. This is a court of justice, not a court of perfection of legal niceties. However, an integral part of the concept of justice is that a person against whom court action is taken – in this case, the State – must know the case they must meet. In practical terms this transposes into one of the basic rules of pleadings: a plaintiff cannot be awarded something that has not been pleaded.

44. All the above principles have been considered when assessing damages in this case. I will use the plaintiff's submission (not the statement of claim) as the basis of the assessment.

Dependency loss

45. Mr Dowa submitted that the plaintiff's family should be compensated for the loss of his son's help in running the household. The court should deem the family's dependency on him to be worth K50.00 per week, comprising K10.00 per week for the plaintiff, his wife and their three surviving children. The total value of their dependency on the deceased was therefore K50.00 per week x 52 weeks = K2,600.00 per year. Mr Dowa submitted that the plaintiff's family would have been dependent on the deceased for 10 years. K2,600.00 per year x 10 years = K26,000.00. That is how he came up with the figure of K26,000.00.

46. Ms Polume-Kiele argued that the plaintiff should get nothing for the dependency claim. However, her submission was far too focussed on asking the court to intensively revisit the issue of liability, which I was not prepared to do as default judgment has been entered.

47. I am going to uphold the dependency claim but the basis of the calculation will be different to that proposed by Mr Dowa. I will take the same approach that I took in another case decided in Mt Hagen at the same time I dealt with the present case: Makire Napiri v The State (2006) N2976.

48. In Napiri the plaintiff was the mother of a 16 year-old boy negligently shot dead by police. The State was found vicariously liable and the court had to assess damages. On the issue of loss of dependency I rejected the State's argument that nothing should be awarded. I noted that the State's argument represented the conventional approach, demonstrated by cases such as Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167. Children of a marriage are regarded as dependants of their parents up to the age of 16 or 18. After that they are treated as independent. In that case two children lost their mother in a car accident. The children were aged four and two when she died. A dependency claim was brought on their behalf against MVIT (as insurer of the negligent driver who caused the accident, by the children's father). When calculating the dependency claim Bredmeyer J held that the children were entitled to damages for the loss of any pecuniary benefits that they might reasonably have expected to enjoy had their mother not died plus the loss of their mother's extra services, eg instruction on essential matters to do with upbringing and help with homework, over and above those that could be provided by a housekeeper. These losses were assessed to be worth K3.50 per week, which was multiplied by the number of weeks from the date of death to the date on which each child would turn 16 years of age. In more recent National Court cases the age of independence was lifted to 18 years (eg None v MVIT [1990] PNGLR 561, Brunton AJ; Tapi V MVIT [1990] PNGLR 568, Woods J). Those two cases fine-tuned the general principle applied tacitly in Koko and expressly in Andale More: children are dependent on their parents; parents are not dependent on their children.

49. That, in my opinion, is not necessarily the case. It might represent the way things are meant to work in a western, nuclear family. But I do not think it is a true reflection of the way that families operate in Papua New Guinea. Extended families are the norm and the wantok system holds sway. Many children continue to live at home after they turn 16 or 18. When they marry they often still live at home. If they get a paid job they are expected to contribute to the maintenance of the extended family unit. If they are living a predominantly subsistence lifestyle in the village environment they are still expected to contribute to the maintenance of the family. The PNG family unit involves a much more complex, intricate set of interdependent relationships than in western societies, from where the principles that have been applied in the cases referred to above seem to have emerged.

50. The best approach to take, in my view, is to consider each case on its merits, free of the strictures of a western or common law prism, and ascertain whether, in fact, a parent who is a plaintiff was or was likely to be dependent on a child. Support for that approach is found in two National Court decisions of Woods J and a decision of Salika J.

51. In Muna Uokare v The State [1988-89] PNGLR 655, Woods J upheld a dependency claim by the parents of a young man aged 18 years who died following a motor vehicle accident. The defendant admitted liability and the case was about assessment of damages. The deceased was in good health prior to his death. He was a village man who cultivated traditional crops and coffee and assisted with the support of his parents. The parents were aged 45 and it would be expected that as they got older they would rely more and more on support from their children. His Honour considered that each parent had a life expectancy of 65 years. He awarded damages of K4.00 per week for each parent for the second 10 years of the remaining part of their lives with a deduction for early payment of 10 per cent.

52. In Simin Dingi v MVIT [1994] PNGLR 385 the deceased was a young woman aged 18 years, killed in a motor vehicle accident. The plaintiff, her father, claimed for bride-price the family would have received in due course from the marriage of the deceased. The evidence was that the deceased was healthy prior to her death and her father expected her to get married in the ordinary course of custom. The family would be expected to receive a bride-price payment. Woods J held that this was a legitimate claim and awarded K5,000.00 damages for lost bride-price.

53. In Puk Kum v The State, WS No 44 of 1996, 12.09.03, unreported, the deceased was a 25-year-old man, killed by police in a raid of Papen village, Western Highlands Province. The plaintiff, his father, brought an action on behalf of his wife and children claiming damages for the loss of dependency support due to the unlawful death of his son. The deceased was a mechanic who assisted his family financially as well as doing manual labour required of a son in a village environment. Salika J held that the State was vicariously liable for the unlawful conduct of the police officers involved, even though the individual officers were not named as defendants. His Honour considered that the plaintiff's wife (ie the deceased's mother) had a life expectancy of 55 years. Having regard to her age, she was awarded damages of K20.00 per week for 15 years.

54. Having considered all the matters outlined above and particularly the decisions in Uokare, Dingi and Kum, I consider that in the present case the plaintiff has established a dependency on his deceased son. I find, on the facts, that the plaintiff was dependent on him and would have continued to be dependent on him had he not died. I will calculate the amount of damages using the following parameters:

• Value of work, security and support provided by the deceased per week for the benefit of his father, the plaintiff = K20.00. This is a difficult benefit to quantify but the figure identified is, I believe, a modest and reasonable sum. It is much less than the figure of K50.00 submitted by Mr Dowa but more than the figures used in some other cases. Mr Dowa submitted that the figure should be higher in this case due to the deceased, Gibson, being a gifted artist who was already contributing substantially to the family's upkeep with his artwork and who could be expected to go on to bigger and better things in the art world. The problem with this argument was that there was not a lot of evidence to support it.
  
• Start-date of the period of dependency = the date of death, 13 October 2000.
  
• End date of the period of dependency = the deemed date of death of the dependant, the plaintiff. I will presume that in this case the plaintiff has a life expectancy of 65 years. His date of birth is not given exactly in the statement of claim as it should have been. However, it is stated that on the date of filing of the writ he was 39. He gave evidence in the witness box and I am in a position to determine his age under Section 63 (age) of the Evidence Act, which states:
  

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

I determine that the plaintiff was aged 42 at the date of trial and that he was aged 39 on the date of his son's death. The end date of the period of dependency is the year 2024.

• The period of dependency therefore = 24 years. I have rounded off this figure for the sake of mathematical convenience. This period is substantially more than the period sought by Mr Dowa. It reflects my view that in Papua New Guinea the son of a parent is a valuable asset. Whatever the son does he will be expected to contribute to the welfare and wellbeing of his parents and the rest of his family.
  

55. The amount of the dependency award is therefore:

K20.00 per week x 52 weeks = K1,040.00 per year x 24 years = K24,960.00.

Exemplary damages

56. Since the Supreme Court's decision in Abel Tomba v The State (1997) SC518, Amet CJ, Los J, Salika J, the courts have been reluctant to award exemplary damages against the State for abuse of police powers or any other type of negligence or civil wrong by the State, its servants or agents. The court is also constrained by Section 12(1) (judgments agasint the State) of the Claims By and Against the State Act 1996, which states:

No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.

57. No breach of constitutional rights has been proven in this case. So I award nothing for exemplary damages.

Funeral expenses

58. Section 25 of the Wrongs (Miscellaneous Provisions) Act specifically provides for funeral expenses. In Inabari and Another v Sapat and The State [1991] PNGLR 427 Salika J explained how a reasonable figure should be assessed, having regard to the normal costs and customary obligations that are generated by a death in PNG.

59. The plaintiff deposes in his affidavit that he spent well over K72,000.00 in funeral and related costs. Some of this is itemised, which means there is to some extent a lack of evidence. Ms Polume-Kiele analysed what evidence there was in great detail in her submission. She pointed out that some of the claims seem to be for air travel and other expenses dated well past the date of death. These are valid points. However, I accept the general thrust of Mr Dowa's submission that there is evidence that there were funeral feasts at both Tabubil (where the death occurred) and at the deceased's village in Enga Province. There was considerable expenditure on airfares. When a tragedy of this nature occurs these sorts of expenses are an ordinary result of what has happened. I find nothing extraordinary in the type of expenditure that has been incurred. I note that the statement of claim refers to a figure of K19,700.00. In view of the gaps in the evidence, I think that that is a reasonable sum to fix upon.

60. I therefore award K19,700.00 as special damages for funeral expenses.

Estate claim

61. The amount of K3,000.00 is the conventional sum awarded for this head of damage (Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78 at p 88.) The claim is reasonable.

I award K3,000.00.

Total

62. The plaintiff will therefore obtain an award of damages comprising:

• dependency loss of K24,960.00; plus
  
• special damages of K19,700.00; plus
  
• estate claim of K3,000.00.
  

The total award of damages is K47,660.00.

INTEREST

63. The Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 is the governing law. Section 1 (interest on certain debts and damages) is the appropriate provision. It states:

(1) Subject to Section 2, in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

(2) Where the proceedings referred to in Subsection (1) are taken against the State, the rate of any interest under that subsection shall not exceed 8% yearly.

64. As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run.

65. I exercise that discretion in the following way:

1 A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given.

2 The standard rate of interest being used these days by the courts is 8%. It has been decided in some cases that awards of special damages should attract interest at only half of the proper rate (eg Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach.

3 Interest should be payable on the total of the pre-judgment components, if any, of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid to her. In Pinzger the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following table.

TABLE 3: PRE-JUDGMENT AND POST-JUDGMENT COMPONENTS OF CATEGORIES OF DAMAGES

No	Category	Pre-judgment (K)	Post-judgment (K)	Total (K)
1	Dependency loss	6,240.00	18,720.00	24,960.00
2	Special damages	19,700.00	0	19,700.00
3	Estate claim	3,000.00	0	3,000.00
Total		28,940.00	18,720.00	47,660.00

Thus the following amounts of damages will attract interest: dependency loss (K6,240.00), special damages (K19,700.00) and estate claim (K3,000.00).

4. The appropriate period for which interest is to run is also the subject of Supreme Court guidelines in Pinzger. It varies according to the category of damages. For general damages it is from the date of service of the writ to the date of trial. For special damages it is from the date of the incident to the date of trial. In other cases the date of judgment has been substituted for the date of trial (eg Reading v MVIT [1988] PNGLR 266, National Court, Woods J; affirmed on appeal in MVIT v Reading [1988] PNGLR 236, Supreme Court, Kidu CJ, Amet J, Cory J). I consider that the date of judgment is a fairer end-mark for the period. As that lies within the boundaries of my discretion, I set it at that date. In the present case the date of the incident is 13 October 2000. The date of service of the writ is 21 May 2001. The date of this judgment is 21 February 2006. Interest will run on:
   
   • (a) dependency loss (K6,240.00) and the estate claim (K3,000.00), to be treated as general damages, making a total of K9,240.00 (at 8%) from 21 May 2001 to 21 February 2006, a period of 4.75 years; and
     
   • (b) special damages of K19,700.00 (at 4%) from 13 October 2000 to 21 February 2006, a period of 5.25 years.
     

66. I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
  
• I is the rate of interest per annum;
  
• N is the appropriate period in numbers of years;
  
• A is the amount of interest.
  

Therefore:

• interest on general damages = K9,240.00 x 0.08 x 4.75 =K3,511.20;
  
• interest on special damages = K19,700.00 x 0.04 x 5.25 = K4,137.00.
  

67. I will order that there be included in the sum for which judgment is given, interest of K7,648.20.

COSTS

68. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

JUDGMENT

69. The Court directs entry of judgment in the following terms:

1. damages, payable by the third defendant, the Independent State of Papua New Guinea, to the plaintiff, Paul Komba, in a lump sum of K47,660.00;
   
2. interest payable by the third defendant, the Independent State of Papua New Guinea, to the plaintiff, Paul Komba, in a lump sum of K7,648.20;
   
3. being a total judgment lump sum of K55,308.20;
   
4. in the event that that total judgment lump sum is not paid within 30 days after the date of entry of this judgment interest shall be payable at the rate of 8% yearly from the date of entry of the judgment on so much of that total judgment lump sum as is from time to time unpaid;
   
5. costs to be paid by the third defendant to the plaintiff on a party-party basis, to be taxed if not agreed.
   

Judgment accordingly.

___________________________________________________________
Paulus M Dowa Lawyers: Lawyers for the Plaintiff
Paul Paraka Lawyers: Lawyers for the Defendants