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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1212 OF 1997
BETWEEN:
ESTHER KURI
Plaintiff
AND:
TRANS NIUGINI AIRWAYS LTD
Defendants
Waigani: Gavara-Nanu J
2009: 4th November
2011: 23rd February
DAMAGES – Assessment of damages – Claims undefended – Evidence by the plaintiff uncontroverted – All credible evidence adduced by the plaintiff accepted – Allowing two thirds of amounts claimed for damages allowed to allow for contingencies.
Cases cited:
Inabari and Another v. Sapat and The State [1991] PNGLR 427
Kembo Tirima and Ors v. Angau Memorial Hospital Board and Or N3106
Koko and Or v. MVIT [1988] PNGLR 167
Counsel
J Kumura with M. Nale, for the plaintiff
No appearance for the defendant
23 February, 2011
1. GAVARA-NANU J: This was an ex-parte trial for assessment of damages. The trial was held on 4 November, 2009. The issue of liability was decided in favour of the plaintiff by the Court on 8 May, 2006. Thus liability is not an issue before me. This is a dependency claim made by the plaintiff on behalf of herself and three others and for the benefit of the estate of the plaintiff's late husband John Kale Dima, who was killed in a plane crash on 25 July, 1995.
2. At the time of the death of John Kale Dima, he was employed as a pilot by the defendant, an airline company. The deceased was a pilot of a plane known as Britten Norman Island BNZ, which was owned by the defendant.
3. The claim is brought under Part IV of the Wrongs (Miscellaneous Provisions) Act, Chapter No. 297.
4. The other 3 dependents in these proceedings are Gabriel Dima, the son, who was aged 2 years at the time the deceased died, Yalton Kale, the father of the deceased who was aged about 45 years at the time the deceased died and Maria Kale, who was aged about 40 years at the time the deceased died.
5. The claim is based on negligence, in that the defendant is alleged to have allowed the deceased to fly a plane which was not airworthy. As noted earlier the defendant's liability for the plaintiff's claims is not an issue nor is the standing of the plaintiff and the 3 other dependents.
6. The plaintiff's age at the time the deceased died was 22 years and the deceased was 27 years old at the time of his death.
7. There is evidence that the deceased was earning K615.38 per fortnight. This is noted from the plaintiff's affidavit sworn on 4 June, 2009. This affidavit also deposes to the deceased's educational qualifications and his achievements as a pilot, most significant ones being the pilot licenses he obtained from the United Kingdom and Papua New Guinea. He was a licensed and qualified commercial pilot at the time of his death.
8. The proceedings were commenced on 28 November, 1997, when the writ was issued. The issue of liability was tried ex-parte and was decided in favour of the plaintiff on 8 May 2006 as noted earlier.
9. When the trial for assessment of damages was held on 4 November, 2009, the issue of delay was raised by the Court. As a result, the lawyer for the plaintiff has filed with his submissions the chronology of events to explain the delay.
10. In my view, the issue of delay is relevant when deciding the interest to be awarded on damages.
11. It is trite law that the plaintiff still carries the onus to prove the damages she claims with credible evidence and the claims should also be properly based and valid in law. It should also be said that, claims and indeed the whole of the proceedings can be dismissed if the above criteria are not satisfied by the plaintiff even when liability is no longer an issue. There is abundant authority for this proposition. For instance, the Court has wide powers to dismiss claims or proceedings if such claims are statute barred or if the claims are based on hearsay evidence and so on. This is so where a default judgment is entered against a defendant for failure to comply with the National Court Rules. For, in such a situation the Rules cannot stand in the way of substantive law.
12. This scenario of course does not arise here because liability was determined in a substantive hearing.
13. It is also important to note that evidence adduced before the Court by the plaintiff is unchallenged and uncontroverted. The Court is therefore entitled to accept credible evidence adduced by the plaintiff in support of her claims and rely upon them when deciding damages.
14. I find that the claims are properly and sufficiently pleaded by the plaintiff in the amended Statement of Claim filed on 25 April, 2003.
16. It is therefore appropriate and convenient that I now assess and determine the plaintiff's claims for damages. In deciding the claims, I will use the plaintiff's written submissions as a guide. I also have no issue with the formulae used by the plaintiff in calculating various claims for damages, although I may not necessarily agree with the amounts reached.
17. I will assess the claims in the order they are raised by the plaintiff in her submissions.
18. The plaintiff claims a total amount of K1,025,431.15 under this head. Deducting 25% of this amount for the use of the deceased as submitted by the plaintiff, in the formulae used the balance claimed for the plaintiff and 3 other dependents is K769,073.37. From this amount 40% is apportioned to the plaintiff, this comes to an amount of K410,172.46, 15% is apportioned to the son Gabriel Kale, this comes to an amount of K153,814.67 and 10% is apportioned to each of the parents of the deceased, Yalton Kale and Maria Kale, this comes to an amount of K102, 543,13 for each parent.
19. Adopting the formulae used by the plaintiff and the amount of K769,073.36 claimed for the plaintiff and 3 other dependents, I would deduct a third of this amount to account for contingencies such as ill health, early death, change of career, say from being an airline pilot to another career such as a politician and so on. This leaves the amount for past economic loss at K512,715.57. I will allow this amount for past economic loss.
20. Applying the apportionment formulae used by the plaintiff, 40% of the amount of K769,073.36 will be apportioned to the plaintiff, this comes to an amount of K205,086.23, 15% to the son Gabriel Kale, this comes to an amount of K76,907.34, 10% to the father Yalton Kale, this comes to an amount of K51,271.56 another 10% to the mother Maria Kale, this also comes to the amount of K51,271.56. Again using the apportionment formulae used by the plaintiff, 25% of K769,073.36 would have been used by the deceased, this comes to an amount of K128,178,89, hence the total amount of K512, 715.57 which I have allowed for the plaintiff and 3 other dependents.
21. The amount claimed under this head is K106,299.04. Again taking into account the contingencies the deceased could have faced I would reduce the amount by a third. This leaves the balance of the amount claimed at an amount of K70,866.03. I will allow this amount under this head.
22. The amount claimed under this head is K32,000.00. I have considered the decisions in Jackson Koko and Or v. MVIT [1988] PNGLR 167 and Kembo Tirima and Ors v. Angau Memorial Hospital Board and Or N3106, applying the principles applied in those cases and considering the current depreciated value of PNGKina, I will allow K32,000.00 as claimed.
23. The plaintiff claims an amount of K12,000.00 under this head, this amount is divided between the plaintiff and her son, thus amounts of K6,000.00 each. Reliance was placed on the decision in Kembo Trima & Ors v. Angau Memorial Hospital Board and Or (supra), in that case, Cannings J, awarded K6,000.00 to the plaintiff. There, his Honour departed from the conventional amount of K3,000.00, taking into account inflation and the weaker PNGKina. The reasoning given by Cannings J in that case appeals to me and I will follow it.
24. I therefore award K6,000.00 each to the plaintiff and her son, thus allowing the amount of K12,000.00 as claimed.
25. The plaintiff estimates the damages under this head at K92,000.00, this is based on the expenses given by Kuri Arumba the father in law of the deceased, he says he spent K53,593.00, James Wai, brother of the deceased, he says he spent K19,600.00 and the plaintiff, she says she spent K19,660.00. The plaintiff has suggested that K50,000.00 would be a reasonable compromise and claims this amount.
26. I have read the affidavits sworn by these three people, although not all the expenses are receipted and supported by documentary evidence, there is evidence of expenses incurred. Some receipts have in fact been provided. For instance there is evidence of a head stone that was erected for the deceased. As it was held in Kembo Tirima because funeral for the deceased took place in the village, it is unreasonable to expect receipt for every expense incurred to be produced in Court. The deceased was a pilot and was a well educated person. There is therefore no doubt in my mind that his funeral and mourning would have attracted a lot of people. Those people had to be fed and looked after throughout the mourning period, given the status of the deceased, a lot of money would have been spent for his funeral expenses. See, Inabari and Another v. Sapat and The State [1991] PNGLR 427. Therefore in the circumstances I do not consider K50,000.00 to be an unreasonable amount. I therefore allow K50,000.00 as claimed.
27. The plaintiff claims K50,000.00 under this head, but I am of the view that costs should be taxed. I will therefore not allow any amount under this head. See, Kembo Tirima & Ors v. Angau Memorial Hospital Board (supra).
28. The plaintiff has claimed 8% interest on damages awarded. Interest is a discretionary matter. The Court is also at liberty to decide against awarding any interest at all. The proceedings were commenced on 28 November, 1997. The date damages were assessed was 4 November, 2009. The period from 28 November, 1997 to 4 November, 2009, is 11 years 11 months 1 week. I am of the opinion that the finality of the proceedings could have been brought on a lot earlier. For this reason, I will award 4 % interest on damages awarded.
Summary of damages awarded.
29. The summary of the amounts of damages I have awarded under each head of claims includes 4% interest for the period of 11 years 11 months 1 week.
30. The total amounts awarded in damages with interest under the various heads of claims are as follows:-
32. Thus the total amount of damages awarded with interest at 4% to the plaintiff and 3 other dependents for Past Economic Loss is K568,153.01.
The amount of damages awarded under this head is K70,866.05. The amount of interest awarded for this amount for the period of 11 years 11 months 1 week is K33,838.52. Thus the total amount awarded under this head in damages and interest is K104,704.57.
The amount of damages awarded under this head is K32,000.00. The amount of interest awarded for this amount for the period of 11 years 11 months 1 week is K15,280.04. Thus the total amount awarded in damages and interest is K47, 280.04.
The amount of damages awarded under this head is K12,000.00. The amount of interest awarded for this amount for the period of 11 years 11 months 1 week is K5,730.00. Thus the total amount awarded in damages and interest is K17,730.00.
The amount of damages awarded under this head is K50,000.00. The interest awarded for this amount for the period of 11 years 11 months 1 week is K23,875.04. Thus the total amount awarded in damages and interest is K73,875.04.
33. Thus the defendant will pay the amount of K811,742.66 to the plaintiff.
34. The defendant will pay the plaintiffs costs and incidentals to these proceedings which includes the costs of the trial on the issue of liability if not already ordered by the Court.
35. Orders accordingly.
__________________________________________
Posman Kua & Aisi Lawyers: Lawyer for Plaintiff/Applicant
Lawyer for Defendants: No appearance
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