Dum v Wawando [2012] PGNC 344; N4653 (20 April 2012)

N4653

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 154 OF 2002

BETWEEN

DOLA DUM
Plaintiff

AND

RUBEN WAWANDO
First Defendant

AND

THE INDEPNDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Mount Hagen: Makail, J
2012: 05th & 20th April

ASSESSMENT OF DAMAGES - Torts - Negligence - Unlawful police shooting - Damages arising - General Damages - Loss of dependency - Loss of estate - Loss of solatium - Special damages - Transportation and funeral expenses - Measure of damages - Various awards made.

Facts

The plaintiff is the wife of a deceased who was shot and killed by policemen during a robbery of a container truck at Keltiga village, near Mt Hagen town in the early hours of the morning of 18th February 1999. She sued on behalf of herself, her 4 year-old daughter and parents of the deceased for damages arising from the deceased's death. She claimed damages for loss of dependency, loss of expectation of life (loss of estate) and funeral expenses arising from the negligent actions of the policemen. Liability was settled by entry of default judgment on 12th July 2002 and the trial was on assessment of damages.

Held:

1. As the plaintiff had remarried roughly 3 years after the deceased died, any damages arising from the death of the deceased in terms of dependency for her was restricted to the period before she remarried.

2. The daughter was an orphan when the plaintiff remarried and left her with the deceased's maternal uncle. Therefore, she was entitled to damages for future risk of orphan-hood which was assessed from the date the plaintiff left her until she reached the age of maturity which was 18 years.

3. Damages for loss of dependency for the plaintiff was assessed at K1,560.00, for the daughter at K29,455.62 and for the parents at K7,800.00.

4. Damages for loss of expectation of life (estate) was assessed at K12,000.00 for the plaintiff and daughter (K6,000.00 each) and K8,000.00 for the parents (K4,000.00 each) giving a total sum of K20,000.00.

5. K600.00 was awarded for loss of solatium.

6. Nominal damages was assessed for transportation and funeral expenses at K11,056.00.

7. Interest was assessed at 4% from the date of issue of writ to date of judgment at K28,625.76.

8. The defendants were ordered to pay the plaintiff's costs of the proceedings to be taxed if not agreed.

Cases cited

Kembo Tirima -v- Angau Memorial Hospital Board & The State (2006) N3106
Esther Kuri -v- Trans Niugini Airways Ltd (2011) N4222
Simon Kuk -v- The State (2011) N4448
John William Paine -v- The State [1979] PNGLR 99
Jackson Koko & Elisha Koko by their next friend Mawa Koko -v- Motor Vehicles Insurance Trust Limited [1988] PNGLR 167
Nolnga -v- Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 436
Pinzger -v- Bougainville Copper Ltd [1985] PNGLR 160

Counsel:

Ms P Tamutai, for Plaintiff
Ms J Doa, for Defendants

JUDGMENT

20th April, 2012

1. MAKAIL, J: The plaintiff is the wife of a deceased who was shot and killed by policemen during a robbery of a container truck at Keltiga village, near Mt Hagen town in the early hours of the morning of 18th February 1999. She sues on behalf of herself, her 4 years old daughter and parents of the deceased for damages arising from the deceased's death.

2. She claims damages for loss of dependency, loss of expectation of life, loss of estate and funeral expenses arising from the negligent actions of the policemen. Liability has been settled by entry of default judgment on 12th July 2002 and the trial was on assessment of damages. In support of her case, she relied on four affidavits which were tendered and given exhibit numbers. They were:

(a) Her affidavit sworn on 09th December 2002 and filed 23rd December 2002 (exhibit "P1");

(b) Affidavit of Dum Mulk sworn and filed on 26th June 2002 (exhibit "P2");

(c) Affidavit of Sapeth Alphonse Dum sworn on 07th June 2002 and filed on 26th June 2002 (exhibit "P3"); and

(d) Affidavit Alice Dum sworn on 07th June 2002 and filed on 26th June 2002 (exhibit "P4").

3. The defendants offered no evidence and elected not to cross-examine the plaintiff and her witnesses. They also made no submissions despite being given time to file written submissions. Only the plaintiff's counsel did. From the affidavits, I accept the deceased is survived by his wife (the plaintiff), a 4 year- old daughter named Sapeth Alphonse Dum (17 years at date of trial) and parents. At the time of his death, he was 28 years old. In late 2001, the plaintiff remarried and eventually left Sapeth with the deceased's maternal uncle. As Sapeth grew older, she came to realise that the plaintiff remarried because she could not cope with life without the deceased.

4. I also accept the deceased was a subsistent farmer. He and the plaintiff own a coffee garden and sell coffee. They also sell garden crops harvested from their garden at the market. It is alleged he earned at total of K150.00 per fortnight from sale of coffee and food crops. From that earning, he gave K30.00 to his plaintiff, K15.00 for Sapeth and K20.00 each to his parents. On the evidence, I am not satisfied the deceased earned K150.00 per fortnight because firstly, being a subsistent farmer is not a full time job. As such, the flow of income generated from subsistent farming fluctuates thus affecting the fortnightly earnings of the deceased.

5. Secondly, coffee is a seasonal crop. When it is coffee season, coffee farmers such as the deceased can expect to earn money from the sale of coffee beans. When it is not, there is no coffee beans to sell, hence no money earned. The same reason can be given for garden crops such as banana, sugar cane, kaukau, etc.

6. For these reasons, I will reduce the fortnightly earning of K150.00 by half. This gives a fortnightly earning of K75.00 and distributing this amount amongst the plaintiff, Sapeth and the parents will come to the following as follows: K20.00 to the plaintiff, K15.00 for Sapeth and K10.00 each to his parents. He would retain K20.00 for himself as spending money.

Loss of expectation of life

7. Turning first to the claim for loss of expectation of life (loss of estate), counsel for the plaintiff referred to past Court decisions in Kembo Tirima -v- Angau Memorial Hospital Board & The State (2006) N3106, Esther Kuri -v- Trans Niugini Airways Ltd (2011) N4222 and Simon Kuk -v- The State (2011) N4448 where award of K6,000.00 was awarded in each case and submitted an award of K6,000.00 would be appropriate. In line with these past cases, I award K12,000.00 to the plaintiff and the daughter (K6,000.00 each) and K8,000.00 to the parents (K4,000.00 each), giving a total sum of K20,000.00.

Loss to children

8. Secondly, the plaintiff claims damages for loss to children. Counsel for the plaintiff relied on John William Paine -v- The State [1979] PNGLR 99, Jackson Koko & Elisha Koko by their next friend Mawa Koko -v- Motor Vehicles Insurance Trust Limited [1988] PNGLR 167 and Kembo Tirima (supra) to support the claim. This claim is for damages that may be awarded for loss of any pecuniary benefits which infant children might reasonably have expected to enjoy had the deceased not been killed. As the primary focus is on pecuniary benefits, the most important parameter in the calculation is the amount of income generated by the deceased at the time of his death.

9. The uncontroverted evidence is that before the deceased died, he and the plaintiff lived a happy married life and he was a good husband who took care of him, their child Sapeth and even his parents. On this evidence, I am satisfied he was a loving and caring husband and father to Sapeth and in the context of a typical village life style would have cared and provided for the plaintiff and Sapeth by being involved in manual labour to maintain and provide a livelihood for the family. The question is, how much would be the pecuniary loss? Counsel for the plaintiff submitted given the dramatic decline in the value of Kina, K15.00 per week would be reasonable loss.

10. I would apply K7.50 per week based on the break-up of fortnightly earnings of the deceased as set out above. Also, this amount is close to what was allowed in Simon Kuk's case (supra) where K7.00 per week was allowed. The reason for allowing this amount is because the deceased in each case were subsistence farmers. Using 18 years as the cut-off age of dependency, Sapeth is now 17 years old. Her father died when she was 4 years old. Deducting 4 years from 17 years leaves 13 years. This is the period of loss.

11. I calculate Sapeth's past loss based on K7.50 per week as follows:

K7.50 per week x 52 weeks

= K390.00 per annum x 13 years = K5,070.00 - Past loss

51.416 (1 year dependency on

3% discount tables) x K7.50 per week = K 385.62 - Future loss

12. For future risk of orphan-hood, the Court in Koko's case (supra) awarded K1,000.00 to Jackson who was 9 years and Elisha who was 6 years at the time of the deceased's death. In Nolnga -v- Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 436, the Court awarded K1,000.00 to the dependant Simon who was 11 years at the time.

13. As noted earlier, in late 2001, the plaintiff remarried and eventually left Sapeth with the deceased's maternal uncle. In other words, Sapeth was an orphan since late 2001. This makes her entitled to future risk of orphan-hood. I adopt the approach I took in Simon Kuk's case (supra) where I followed the approach taken by Cannings, J in Kembo Tirima's case (supra) by computing loss based on monetary loss per annum until the child reaches the age of maturity of 18 years.

14. Taking into account decline in the value of Kina and inflation, I will allow K2,000.00 per annum until Sapeth reaches 18 years. From 18th February 1999 until late 2001, she was in the care of the plaintiff. After that, she was left with her uncle. Taking the period of orphan-hood from late 2001 to 2013, which will be the time she will have reached 18 years is roughly 12 years. Using K2,000.00 per annum by 12 years gives K24,000.00.

Loss to the plaintiff

15. Thirdly, the plaintiff claims dependency loss for herself for the loss of the deceased. Her counsel submitted K10,140.00 for past loss and K10,920.00 for future loss. However, I am not satisfied she is entitled to these amounts because in late 2001, she left the deceased's relatives and remarried. By remarrying, she has removed herself from the dependency of the deceased if the deceased was alive. It follows if any damages are to be awarded in terms of loss of dependency for her, they will be limited to the period before she remarried and that would be from 18th February 1999 to late 2001. That is roughly 3 years. Computing K20.00 per fortnight x 26 fortnights per annum = K520.00. K520.00 x 3 years = K1,560.00. I award K1,560.00.

Loss to parents

16. The fourth claim is loss to parents and in this case to the parents of the deceased. According to the father Dum Mulk and mother Alice Dum of the deceased, they are 64 and 58 years old respectively. I accept the submissions of counsel for the plaintiff that 15 years from the date of the death of the deceased be applied in this case. I calculate each parent's loss as follows:

Dum Mulk: K10.00 per fortnight x 26 fortnight per annum = K260.00

K260.00 per annum x 15 years = K3,900.00

Alice Dum: K10.00 per fortnight x 26 fortnight per annum = K260.00

K260.00 per annum x 15 years = K3,900.00

17. For father Dum Mulk, I award K3,900.00 and for mother Alice Dum, I award K3,900.00.

Solatium

18. The fifth claim is for loss of solatium. A sum of K600.00 is claimed under section 29 of the Wrongs (Miscellaneous Provisions) Act, Ch 297. I award K600.00.

Special damages

19. Under this head of claim, the plaintiff claims legal fees and transportation costs for pursuing the claim against the State. K3,500.00 is being claimed for legal costs and K1,050.00 is being claimed for transportation costs. As legal costs is recoverable against the State in any event through a proper presentation of a bill of costs for taxation under Order 22 and the schedules of the National Court Rules, I am not prepared to make an award of legal costs in this judgment. By its nature, transportation costs are special damages. As special damages, they must be strictly proven. Although there are no receipts establishing them, I am nonetheless satisfied the amount claimed is reasonable given the lapse of time and the father's frequency of travel between Kindeng and Mt Hagen to visit the lawyers to pursue the claim. I award nominal damages of K1,056.00.

20. The next claim under this head of claim is funeral expenses. According to his affidavit (exhibit "P2"), Mulk Dum, the father of the deceased said he spent K5,000.00 and 10 live pigs as funeral expenses. The amount claimed is K15,000.00. Again, funeral expenses are special damages and must be strictly proven. I accept there are no receipts of payments to support this claim but I accept it is customary that family members, relatives and friends of the deceased would have attended the funeral of the deceased. Money would have been spent to buy food and coffin, etc for the funeral gathering and burial of the deceased, hence it would be unreasonable to expect receipts of every expense incurred to be provided to the Court. I award nominal damages of K10,000.00. This gives a total of K11,056.00.

Interest

21. Lastly but not the least, the plaintiff claims interest at 8% to run from the date of the death of deceased to the date of judgment. In the exercise of the Court's discretion under section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, Ch 52, I am not satisfied interest should run from the date of the death of the deceased because no reasons have been put forward by counsel to support this position. I prefer to award interest from the date of issue of writ to the date of judgment because it is the commonly accepted approach and the fairest way of balancing the two competing interests at play. The overriding consideration is, the plaintiff is compensated for being kept out of money which ought to have been paid to her had judgment been entered earlier: see Pinzger -v- Bougainville Copper Ltd [1985] PNGLR 160.

22. Should it be at 8%? I adopt the approach I took in Simon Kuk's case (supra) where I allowed interest at 4%. The date of issue of writ is 14th February 2002. From that date to today is a total of 3,708 days. Adding the various awards made, the total damages is K70,471.62. Multiply K70,471.62 by 4% gives K2,818.86. Divide K2,818.86 by 365 days to get the daily rate gives K7.72 per annum and then multiply K7.72 by 3,708 days gives K28,625.76. I award K28,625.76.

Order

23. The formal orders of the Court are:

1. Damages for loss of dependency for the plaintiff is assessed at K1,560.00, for the daughter at K29,455.62 and for the parents at K7,800.00.

2. Damages for loss of expectation of life is assessed at K12,000.00 for the plaintiff and daughter (K6,000.00 each) and K8,000.00 for the parents (K4,000.00 each) giving a total sum of K20,000.00.

3. K600.00 for loss of solatium.

4. Nominal damages is assessed for transportation and funeral expenses at K11,056.00.

5. Interest is assessed at 4% from the date of issue of writ to date of judgment at K28,625.76.

6. The defendants shall pay the plaintiff's costs of the proceedings to be taxed if not agreed.
_______________________________________________________
Tamutai Lawyers: Lawyers for Plaintiff
Solicitor-General: Lawyers for Defendant