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Onga v Independant State of Papua New Guinea [2019] PGNC 420; N8109 (4 September 2019)

N8109


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


WS NO. 1345 of 2017 (CC1)


BETWEEN
PAUL POR ONGA AS FATHER AND CUSTOMARY REPRESENTATIVE OF ELIZAH POR ONGA
First Plaintiff


AND
SABINA MANNIE POR AS MOTHER OF ELIZAH POR ONGA (DECEASED)
Second Plaintiff


AND
THE INDEPENDANT STATE OF PAPUA NEW GUINEA
Defendant


Waigani: Polume-Kiele J
2018: 2nd August
2019: 4th September


PRACTICE & PROCEDURE- Application to dismiss for abuse of process of court – Order 12 Rule 40 (1) (b) and (c) – National Court Rules; application to dismiss for want of prosecution – Order 10 Rule 9A (15) (1) (a) and (2) (d) – National Court Listings Rules 2005


CIVIL ACTION - Actions for wrongs – liability of the State – police are servants, agents and officers of the State – Wrongs (Miscellaneous Provisions) Act, Section 1 – general liability of the State in tort – innocent person shot dead in a moving taxi during early hours of morning- alleged police shooting – burden of proof –whether police officer fired shot negligently – vicarious liability.


DAMAGES– negligence – death of passenger in a taxi – claim by parent of deceased – 23-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.


Facts:


The plaintiffs’ claim is one of claims for civil damages and dependency under the Wrongs (Miscellaneous Provisions) Act (herein the Act) for the wrongful death of their son, one Elizah Paul Por, aged 23 years old. The deceased was shot dead by an unidentified police officer and in an unidentified vehicle in the early hours of 1st of January 2013. These proceedings were filed on 8 December 2018. Section 5 Notice of a claim against the State was given on the 20th November 2017.


Held:


(1) This is a civil claim arising from a wrongful death. A civil action against the State under the Wrongs (Miscellaneous Provisions) Act, s 1 (1), 1 (4); 25 and 26.

(2) A claim for wrongful death under s 25 and s26 of the Wrongs Act must be filed within 3 years of date of death of the deceased person under s 31 of the Wrongs Act.

(3) The death in this case occurred on 1 of January 2013. These proceedings were filed on 8 December 2018, a lapse of two years 11 months and 7 days late.

(4) The claim is statute-barred under s 31 of Wrongs (Miscellaneous Provisions) Act.

Counsel:


Mr Kipa, for the Plaintiffs
Ms M Irakau, for the Defendants


RULING ON MOTION


4th September, 2019


  1. POLUME-KIELE J: On the 2nd of August 2018, an application was moved by the defendant before me to have the entire proceedings dismissed for being an abuse of the process of the Court pursuant to Order 12 rule 40 (1) (b) and (c) of the National Court Rules 1983 and to have the proceedings dismissed for want of prosecution under Order 10 rule 9 A (15) (1) (a) and (2) (d) of the National Court Listings Rules 2005.
  2. The plaintiff opposes the application

Defendant’s submission


  1. In this application, the Defendant relied on the affidavit of Mr. Troy Mileng filed in support of the Notice of Motion filed on the 26th June 2018 deposing to him having carriage of the matter and authority to attest to the matters before the Court. By that, he states that the writ was served on the Solicitor General on 13th February 2018. The writ was filed on 8th December 2017. Upon perusal of the statement of claim, he noted that the claim is one of a dependency claim for the wrongful death of one, Elizah Por Onga which is alleged to have occurred on the 1st of January 2013 when he was allegedly killed by the police.The deceased was aged about 23 years old at the time of his death.
  2. He states further that on the 14th of May 2018, the Solicitor General filed a Notice of Intention to Defend and a Defence for and on behalf of the defendant. The notice and defence were served on the plaintiff on the 15th of May 2018. In their letter to the plaintiff, they gave notice that these proceedings were statute-barred pursuant to s 31 of the Wrongs (Miscellaneous) Provisions Act. Section 31 of the Wrongs Act is pleaded as a defence to the claim. Suggestions put forward to the plaintiff to take steps to withdraw the entire proceedings to save time and costs to both parties were ignored by the plaintiff, thus this application.
  3. The application follows that notice.

Plaintiff’s submission


  1. The plaintiffs oppose the application. They say that the claim is not statute-barred as it is not a claim brought under the Wrongs Act, s 31. It is an estate claim brought by the Administrator and or Executor of the Estate of the late Elizah Por Onga and therefore is qualified under Part V of the Wrongs Act.

Issues


  1. The issue before this court is whether these proceedings ought to be dismissed for being an abuse of court process pursuant to Order 12 rule 40 (1) (b) and (c) of the National Court Listings Rules 1983 and Order 10 rule 9A (15) (1) (a) and (2) (d) of the National Court Listings Rules 2005

Laws


  1. The relevant laws relating to a claim for wrongful death are as follows:

Section 1 of the Wrongs (Miscellaneous Provisions) Act (herein the Act) provides that:


“1. General liability of the State in tort.


(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 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) ......


(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 a statute and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of that 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.”


Section 25of the Wrongs (Miscellaneous Provisions) Act provides that:


“25. LIABILITY FOR DEATH CAUSED WRONGULLY, ETC.


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 the death has been caused under such circumstances as amount in law to an offence.


Section 26 of the Act provides that:


“26 Actions under Section 25


(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) ...

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.


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.


Section 31of the Act then provides that:


“31. LIMITATION OF ACTIONS UNDER PART IV.


Only one action under this Part lies for and in respect of the same subject matter of complaint, and ever every such action must be commenced within three years after the death of the deceased person.


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.]


Consideration of the application


  1. This is a common law action for negligence brought under the statutory framework of the Wrongs (Miscellaneous Provisions) Act (Chapter 297), an action arising out of the deceased’s death. In addition, the plaintiffs also seek a declaration relating to breaches of constitutional rights. The claim relates to the parents’ dependency claims 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). In the case of William Patitts v The Independent State of PNG (2006) N3088, his Honour Cannings J in his discussion of the law on the matter before him stated:

“The common law of negligence is adopted as part of the underlying law of Papua New Guinea and is applicable and appropriate to the circumstances of this country; except to the extent it is inconsistent with or has been modified by a written law. In this regard, the common law is applicable generally 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.”


  1. In this regard, for the plaintiffs to establish liability, the onus lies on the plaintiffs to satisfy the basic elements of the tort of negligence (See Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779). Here the plaintiffs need to show that:

Vicarious liability


  1. Here, the plaintiffs say that the State is vicariously liable and under the 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 police officers) over whom the first person has control or responsibility. In this jurisdiction, the principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act. In that regard, Section 1 reads:
  2. The plaintiffs say that the deceased was shot by members of the police on the night of 1st January 2014. They say that at all material time, police officers of the Special Services Division (SSD) were in a convoy of marked and unmarked vehicles and on duty carrying out police operations on Christmas and New Year Eve and were patrolling the streets within NCD, more particularly at Gerehu Stage 6 and were in their official duty when the deceased together with four others were passengers in a Taxi Registration No. T- 4831 travelling through Toliman Street, were signalled to stop. The police officers were in an unmarked Toyota Land Cruiser Registration No. BCM 497. The Taxi failed to stop and a chase ensued during which the police discharged live firearm without warning during the early hours of 1st January 2014 and shooting the deceased through the back of the Taxi. The deceased died instantly.
  3. The plaintiffs say that the death of their son was caused by the negligence of the police officer whereby they had failed in their duty by opening fire at the vehicle for no apparent reason at all, without regard for human live particularly when the deceased was unarmed. They also say that the police officers were careless in the discharge of a firearm, failed to wave down the taxi to stop in order for them to conduct a search and investigate, firing a firearm where there is a real risk of injuring or killing innocent members of the public. They say further that the police officers also failed to fire warning shots so to cause the driver of the taxi to stop but had fired directly into a moving vehicle causing instant death.
  4. By failing to take these actions, the plaintiffs say that the police officers’ actions were wrongful, negligent or default and that such act, neglect or default entitled them to bring this claim to recover damages in respect of the death of their son. They claim that s 25 of the Wrongs Act imposes liability on the wrongdoer or the person. Because, the police officers are servants and or agents of the State. In this case, the State is vicariously liable for the wrongdoer’s actions.
  5. Furthermore, s 26 identifies the list of family members who are owed that liability and the plaintiffs are listed amongst those identified. In addition, Sections 24 to 33 have provisions for regulating such liability. 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.”


  1. Section 26 (actions under Section 25) states:
  2. In this case, both parents survive the child and as plaintiffs bring an action for wrongful death and for damages. 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.

Dependency claims


  1. For a claim under Part IV of the Wrongs (Miscellaneous Provisions) Act, this ensures that if a person causes the death of another person, by wrongful act, neglect or default, the first person, the ‘wrongdoer’, has an ongoing 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.

Estate claims


  1. 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).

Consideration of the application


  1. The law on what are the recognised heads of damages for claims arising out of wrongfully cause death of a child is well settled. The established position at common law adopted and applied in Papua New Guinea are cited in the case of Jackson Koko and Elisha Koko v. MVIT, [1988] PNGLR 167;Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78, Andale More and Manis Andale v. Henry Tokam and The State (1997) N1645. According to these recognized principles of law, the only recognised heads of damages arising out of a wrongful death of a child are estate claims and solatium. This is so for very good reason. Because, more often children are dependent on their parents until attaining age of maturity or upon reaching adulthood when they are free to move on with their own life and have a family of their own. They then have their children upon whom these children become dependent. It is common throughout Papua New Guinea that most parents die earlier than their children. Whilst we may say that parents do not depend on their children for their maintenance and upkeep, I am of the view that given our current circumstances in rural PNG that most parents depend on their children to support them for their maintenance of their homes, gardens and other manual work, including gardening, fishing and hunting for their livelihood including making sales at the informal market place and by the sides of their homes to generate some income to support their livelihood. Whilst it may be highly speculative to suggest that parents would live longer and become dependent on their children, it is not unusual as parents to be dependent on their children up to a point and from time to time.
  2. Given these factors, not all claims for any loss of an existing dependency or any prospective dependency are the same. Thus, a claim must be considered on its own merits and circumstances based on the plaintiff’s pleadings supported by credible evidence establishing such a claim under Order 8 Rules 20A as well as the specific factual basis upon which there was dependency, or a prospective dependency claim is based. Such specifics should include the deceased’s:

(a) medical history and status prior to his or her demise;

(b) academic and or intellectual capacity by reference to school or college work and or assessments and results;

(c) employment or industriousness record and evidence of it; and

(d) living environment, whether rural or city with type of accommodation, food, other factors that contribute to better health and longer life expectancy and opportunities or lack therefore of being employed with a certainty of earning or generating a regular income.


  1. In the present case, there is pleading in relation to the deceased being a high school student doing grade 11 at the Global Flexible Learning Institute at Kimil, Dei District and that he was industrious as he was involved in the sales of chicken and cigarettes to earn an income which he also uses to support and maintain his parents. Further, whilst I note that there is no pleading of a medical history and status prior to his demise, I am of the view that those matters can be properly addressed during trial of the matter.
  2. Here the plaintiffs claimed, their son; one Elizah Paul Por (deceased) was shot dead by members of the police on the 1st of January 2013. They say that the deceased was travelling with 4 other passengers in a taxi travelling to Gerehu Stage 6 along Toliman Circuit, Gerehu, National Capital District. The taxi he was travelling in was followed by an unidentified vehicle with police officers onboard. The taxi was then signalled to stop but the taxi increased speed to get away.The unidentified vehicle than pursued the taxi and the officers opened fire at the taxi, one of the shots fired went through the back windshield of the taxi killing the deceased instantly.
  3. The Plaintiffs have now filed these proceedings claiming damages for the loss of their son alleging the tort of negligence and breach of human rights and also a claim for some form of dependency for the loss and death of their son. The claim is made against the State as a principal tortfeasor under s 1 (1) and s1 (4) of the Wrongs Act. The deceased was shot dead by the police on the 1 January 2013. The proceedings were instituted on the 8 December 2017; almost 5 years after the date of death of the deceased.
  4. The defendants say that the entire proceedings be dismissed for being an abuse of process of the Court pursuant to Order 12 Rule 40 (1) (b) and (c) of the Rules and Order 10 Rule 9A (15 (1) (a) and 2 (d) of the Listing Rules 2005. They say that the facts of the case are clearly covered under s 31 of the Wrongs Act as this is a claim for the death of a person caused by: (a) a wrongful act, neglect and default for breaches of constitutional rights.
  5. In accordance with the principles set in Coecon Ltd (Receiver/Manager) appointed) vs. National Fisheries Authority (2002) N 2182 and by the Supreme Court in Papua New Guinea Banking Corporation vs. Jeff Tole (2002) SC 694 Amet CJ, Sheehan. J and Kandakasi. J. They held that the trial judge’s role is:
(iii) 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.

(iv) The plaintiff has the burden of producing admissible and credible evidence of the alleged damages.
  1. In applying these principles to this present case, I note that although the proceedings are described as a dependency claim, the plaintiffs sue as “...the father and executor of the estate of the late Elizah Paul Por (“the deceased”) (paragraph 1 of the Statement of Claim). The second plaintiff sues under her own name (paragraph 2).
  2. Given these pleadings, the questions to ask are:
  3. Upon further reading of paragraph 17 of the statement of claim, I note that the plaintiffs have pleaded breaches of constitutional rights and suffered damages for the pain, suffering and loss of their first born and only son who had just completed Grade 11. The particulars of their losses are pleaded in paragraphs 18 to 26 of the statement of claim. The particular heads of damages or losses are set out as follows:

“18. Particulars of Pain & Mental distress and shock


... news of death caused much pain and suffering


... news of death caused first plaintiff to lose consciousness and loss of bloodline’


... continuous mourning as unable to see or talk to him before death


19 Particulars of economic and loss


... loss of earnings from sale of chicken at K30.00 each


... loss of earnings from sale of cigarettes at K1.00 per cigarettes which he earned towards payment of school fees and maintenance of the plaintiffs


Loss of dependency on deceased for their upkeep and maintenance at K25.00 each week


... loss of future employment and financial assistance


23. Particulars of special damages


... funeral expenses – K67,160.15


... other funeral expenses – K45,000.00


... airfreight (cargo) K1, 067.00


... Airfares K3,250.00


... Vehicle hire K19,000.00


24. Estate Claim

K20,000.00


25. Solatium


K600.00


  1. As a related matter, during the hearing of the application, the plaintiffs Counsels had submitted that the first plaintiff had initially lodged proceedings at the National Court and sought orders for Letters of Administration of the Estate of the deceased son. Letters of administration were granted on 9 December 2016. Whatever, the reasons for taking this approach, remains unclear. I note that the plaintiffs claim here is one for dependency and an estate claim.

Dependency Claim


  1. In a claim for dependency, the procedures are quite clear. These procedures are provided for under Order 8 Rule 33 of the National Court Rules. Order 8 Rule 33 of the National Court Rules, requires claims for damages arising out of a death or personal injuries to plead specifically the injury or loss with particulars of the loss. The particulars to be given in a death or personal injuries cases in a claim made by the plaintiff for damages for breach of duty, and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person the statement of claim endorsed on the writ of summons shall set forth full particulars of the claim, including—

(k) where relevant, the payment, allowance or benefit received from his employer by each plaintiff during the period of his incapacity; and

(l) where relevant, particulars of the persons dependent on the plaintiff's earnings,

set out, as far as may be practicable, in that order.


(2) The claim shall conclude with a summary of the relief claimed, without quantifying either general damages or costs.


(3) In this rule, "personal injuries" includes any disease and any impairment of a person's physical, nervous or mental condition.

(4) The particulars of claim referred to in Sub-rule (1) shall, for all purposes of these Rules, be treated as a statement of claim.

(5) Rule 13(3), (4) and (5) shall apply, with appropriate modifications, to the particulars of claim referred to in Sub-rule (1).

34. Out of pocket expenses. (16/5)


Where, in proceedings on a common law claim, a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys.


35. Manner of giving particulars. (16/6)


(1) Where any of Rules 29 to 32 or Rule 34 require particulars of any pleadings to be given, the particulars shall be set out in the pleading or, if that is inconvenient, shall be set out in a separate document referred to in the pleading and that document shall be filed and served with the pleading.

(2) Notwithstanding Sub-rule (1), where the necessary particulars of debt, expenses or damages exceed three folios and have, before the date on which the pleading is filed, been given to the party on whom the pleading is required to be served, and the pleading shows the date on which the particulars were given—


(a) Sub-rule (1) shall not require that the particulars be filed or served; but

(b) the Court may order that a copy of the particulars be filed and served.


36. Order for particulars. (16/7)


(1) The Court may, on terms, order a party to file and serve on any other party—

(2) Without limiting the generality of Sub-rule (1) where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the Court may, on terms, order that party to file and serve on any other party—


(a) where he alleges knowledge—particulars of the facts on which he relies; and


(b) where he alleges notice—particulars of the notice.


(2) The Court shall not make an order under this Rule before the filing of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.
  1. Here paragraphs 18 and 19 of the Statement of Claim pleads:

“18. the defendant is also liable for Human Rights violations, infringements or breaches committed by its servants and agents pursuant to Section 57 and 58 of the Constitution” and paragraph 19 reads:


  1. The deceased died as a result of the negligence and carelessness of its officers who were on duty and on patrol at the material time.”
  2. The facts of the case are clearly covered under Section 31 of the Act. This is a claim for the death of a person caused by:
    1. Wrongful act (paragraph 19 of Statement of Claim)
    2. Neglect (paragraph 18, 19 Statement of Claim)
    1. Default (breach of constitutional rights – paragraphs 16.1 – 16.9, 17, 18). Whilst I note that the numbering on the paragraphs do not correspond. Whether it should read paragraph 16, or 20 is not consistent but the pleadings are clear.
  3. In the case of Komai Hariwaja v PNG Power Ltd (2018) N7488, the Plaintiff claimed damages from the Defendant, PNG Power Ltd for the loss of his child through electrocution. Default judgment resolved the question of liability. On trial for an assessment of the Plaintiff’s damages, the plaintiff claimed for loss of dependency, estate claim, solatium and special damages especially for funeral expenses. However, the pleadings do not lay any good and enough foundation for each, if not, for all the heads of damages claimed. The Court in that case states that:

“22 Usually children are dependent on their parents. Upon attaining their age of majority or upon reaching adulthood, they move on, create and live with their own families. Their own children and husbands or wives become dependent on them. Meanwhile, most parents die sooner in Papua New Guinea than elsewhere in the world. It is therefore highly speculative to assume that parents would live longer and become dependent on their children. Aged old parents if they survive that long, will be dependent on their children only up to a point and from time to time and not consistently.Occasionally would their children support their parents and if they do, it will be very minimal. Unless, the parents are disabled and cannot fend for themselves, most parents in Papua New Guinea work hard to support themselves even in their old ages. Besides, a child would have siblings who would either contribute or substantially support their parents. Given these variables, each case is different. That means, a case must be made out before there can be any acceptance of any claim for any loss of dependency by a parent upon the wrongful death of a child. Hence, all claims for any loss of an existing dependency or any prospective dependency must be made out first in one’s pleadings and secondly by the production of credible evidence establishing such a claim. To succeed in a claim for loss of dependency, the pleadings must plead the matters required under O.8 r. 20A as well as the specific factual basis upon which there was dependency, or a prospective dependency claim is based. Such specifics should include the deceased’s:


(a) medical history and status prior to his or her demise;


(b) academic and or intellectual capacity by reference to school or college work and or assessments and results;


(c) employment or industriousness record and evidence of it; and


  1. living environment, whether rural or city with type of accommodation, food, other factors that contribute to better health and longer life expectancy and opportunities or lack therefore of being employed with a certainty of earning or generating a regular income.
  1. In the present case, the State has raised a defence of s 31 of the Wrongs Act of a time limitation or a statutory time bar to the claim. The State claims that “... every such action must be commenced within three years after the death of the deceased person”. Here the plaintiff was alleged to have been shot dead by members of the police on the 1st January 2013. They say that the claim is not statute-barred as it is not a claim brought under the Wrongs Act, s 31. It is an estate claim brought by the Administrator and or Executor of the Estate of the late Elizah Por Onga and therefore is qualified under Part V of the Wrongs Act.
  2. In any event, irrespective of the plaintiffs’ contention, Part IV and V of the Wrongs Act is still applicable to dependency and estate claims and therefore the plaintiffs’ arguments on the relevance of or applicability of s 31 of the Wrongs Act is misconceived.
  3. If the plaintiff had a claim, the three-year period within which to file these proceedings would have lapsed prior to or on the 2nd of January 2016. Instead the plaintiff filed these proceedings on 8 of December 2017. About 1 year and 11 months 8 days later. This is clearly outside of the statutory requirement of 3 years under s 31 of the Wrongs Act.
  4. On this point, I refer to the case of Gregory Tavatune v Dr. Novette, Christopher Pasmat, Danny Gre And Elias Kapawara of Vanimo General Hospital (2012) N4611), the plaintiff, who is the husband of the deceased lodged a claim under Part IV and V of the Wrongs (Miscellaneous Provisions) Act Chapter No. 297 on his own behalf and his four children as dependant of the deceased and for the benefit of the estate of the deceased. The pleadings were very specific and sufficiently clear in the manner in which he went to Court. However, the claim was filed after the expiration of the 3-year statutory limitation period. Further, the plaintiff had already secured a default judgment in his favour, but on trial for assessment of damages, the Court was of the view that the assessment exercise was a futile exercise because s.31 of the Wrong Act makes it mandatory that “... every such action must be commenced within 3 years after the death of a deceased person”. (my emphasis).The Court dismissed the entire proceedings for being time- barred pursuant to Section 31 of the Act.
  5. So, I now ask as to whether this is a claim by the dependant parents under the Wrongs Act. To answer that question, I refer to Sections 25 and 26 of the Wrongs Act which provide for persons who can bring an action, either the executor or administrator of the deceased persons estate, (s.26 (1) of the Wrongs Act) or by a dependant/s who were dependent on the deceased by custom (s. 26 (2) of the Wrongs Act). Whilst I note that the plaintiffs are persons entitled to bring these proceedings, under s 27 (1) and (2) of the Wrongs Act, and the fact that there is a reference to the Grant of Letters of Administration granted on the 9 December 2016. Section 27 (2) provides that .... In an action under s27 (1), shall be for the benefit of the same person (plaintiffs) ... shall be subject to the same procedure as nearly as may be if it was brought by the executor or administrator” (s 27 (1) of the Wrongs Act). In this case, it is my view that the “same procedure” here is a reference to the requirements of s 25 and 26 of the Wrongs Act and the limitation period under s 31 of the Wrongs Act. It does not mean that because in some claims, one has to have applied for and has been granted a Letter of Administration, it makes it different and that it does not make it mandatory to comply with the s 31 requirements is misconceived. Section 31 of the Wrongs Act still applies (see Gregory Tavatune v Dr. Novette, Christopher Pasmat, Danny Gre And Elias Kapawara of Vanimo General Hospital (supra).
  6. Aside from the defence of time limitations, I also note that the requirements provided for under Order 8 Rule 33 of the Rules have not been pleaded forming the basis or foundation of the claim. Firstly, there is no foundation in the pleadings for the claim for loss of dependency. This is because none of the four matters listed above is stated and no particulars of the medical history, academic or assessment of the deceased prospect in future education or employment and overall personal development and lifestyle are pleaded in the statement of claim. Secondly, as to the Plaintiff’s claim of their dependence on the deceased or a good prospect of depending on the deceased, I am of the view that it is still necessary for such a claimant to provide particulars of a specific reference to a bank account being held in the name of the deceased person to confirm that he was able to actually earning a living from the sales of his goods, or making income from the sales of his chicken or cigarettes and saving those earnings or wages for his upkeep and maintenances and that of his parents. It is not sufficient just to make a claim for dependency when there is no pleadings providing particulars of such claim for dependency. In any event, if there are any evidence of these types of evidence, these can be adduced during trial if the matter were to proceed to trial.
  7. Overall, the basic foundation for this claim is for an award of damages for loss of dependency, estate claim, solatium and special damages especially for funeral expenses.

Estate Claim


  1. The next head of damages the Plaintiffs claim is the estate claim. As already noted, estate claims are well recognized and allowable if the claim was filed within the period prescribed under s 31 of the Wrongs Act. Further and in addition, I also note that at the time of his death, the deceased was a student doing Grade 11 at the Global Flexible Learning Institute at Kimil, Dei District of Western Highlands Province and was on holidays in Port Moresby. As to the issue of what assets, the deceased may have acquired or had in his possession or custody, which would require the involvement of the Public Curator as the Official Trustee of Deceased Estates also remains unclear.
  2. However, the pleadings do indicate that the allegations of the wrongful death fall into the ambit of Section 25 of the Act.But I then asked as to why the decision to apply for Letters of Administration here? Could this decision have contributed to the delay in filing proceedings?
  3. In any event, on 8 December 2018, some 1 year and 11 months later, the plaintiffs filed a writ seeking damages against the Defendant, the Independent State of Papua New Guinea pursuant to s 247 (2) of the Constitution; s 2 of the Claims By and Against the State Act 1996 and s 1 (1) (a) and s 1 (4) of the Wrongs (Miscellaneous Provisions) Act 1975. They seek damages under several heads and these are set out below:
  4. In light of the decisions of Makire Napiri v The State (2006) N2976, Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979 and Robert Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950, I consider that the plaintiffs are entitled to file these proceedings seeking an award of damages to compensate the plaintiffs as parents of the deceased for the loss of financial support that would reasonably be expected to have been provided by their child, had the child not died. Parents are regarded as dependents on their children too in their old age as opposed to the principle established in the cases of Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167 and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645. The circumstances in Papua New Guinea are changing as children go outside of their parental home to seek employment and remit money back to their parents for their upkeep and livelihood.
  5. Given these principles, the onus lies on the plaintiffs to establish a prospective dependency on their deceased son and to also ensure that they have a claim in law. The defendant is refuting this claim by raising a defence of s 31 of the Wrongs Act that the claim is statute-barred and consequently seek orders that no action lies against the defendant, the State and that the entire proceedings be dismissed.
  6. The Wrongs (Miscellaneous Provisions) Act, Chapter 297 is an Act relating to various aspects of the law of wrongs including the general liability of the State under s 1 (1) and s 1 (4) in respect of tort caused by wrongful actions or negligence committed by its servants or agents by reasons of being their employer or in respect of their duties. Further, by sections 25 and 26, the parents of the person who has died, as a result of the wrongful act are entitled to make a claim for their losses following the death. Furthermore, by s 31 of the Wrongs Act, such action must be filed within three years of the date of the death. The requirements in relation to the limitation period in relation to making a claim against the State or the MVIL for a claim for damages for death remains the same.
  7. For instance, in the case of Sakaire Ambo v Motor Vehicles Insurance (PNG) Trust[1](2002) SC681, the appellant filed a writ of summons on 6th November 1998 for a claim for damages for death arising out of a motor vehicle accident which occurred on 25th June 1995 on Gavamani Road in the National Capital District.The respondent filed a motion to dismiss the action on the basis that it was statute barred under s 31 of the Wrongs (Miscellaneous Provisions) Act (Ch 297) which reads:

“Only one action under this Part lies for and in respect of the same subject-matter of complaint, and every such action must be commenced within three years after the death of the deceased person.”


  1. In opposing the motion in the National Court, counsel for the appellant argued that limitation of action for damages for deaths arising out of a motor vehicle accident should be regulated by s 16 (1) of the Frauds and Limitations Act 1988 (Act No. 3 of 1988):

“(1) Subject to Sections 17 and 18, an action –

(a) that is founded on simple contract or on tort;

(b) ....

(c) .....

(d) .....


shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.”


  1. The trial judge concluded that the provisions of the Wrongs (Miscellaneous Provisions) Act regulate actions for damages arising out of motor vehicle accidents and found that the action was statute barred and dismissed it.
  2. In Sakaire Ambo v MVIL (supra), the Court had to determine whether claims for damages for deaths arising out of a motor vehicle accident is regulated by Wrongs (Miscellaneous Provisions) Act or the provisions of Frauds and Limitations Act 1988?
  3. In resolving this issue, the trial judge concluded:

“I hold that in any legal proceedings where a person sues for damages in respect of a claim pursuant to Section 54 of the Motor Vehicles (Third Party Insurance) Act, the statutory time limit applicable is three years in pursuant of Section 31 of the Wrongs Miscellaneous Provisions Act. A claim or action for damages in respect of the death of, or bodily injury caused to a person by or arising out of the use of a motor vehicle is a claim for damages under the Miscellaneous Provisions Act. Section 31 of the Wrongs Miscellaneous Provisions Act defined third-party policy of insurance that is a third-party policy within the meaning of the Motor Vehicles (Third Party Insurance) Act. Again, that provision provides a nexus, between the two legislation. Therefore, there can be no doubt in anyone’s mind that in a suit for damages for death or personal injury arising out of a motor vehicle accident the suit is brought under the Wrongs Miscellaneous Provisions Act.”


  1. In addition to the above, s34(6) of the Wrongs (Miscellaneous Provisions) Act confirms that the Motor Vehicles Insurance (PNG) Trust shall be deemed to be the tortfeasor in respect of deaths or bodily injuries. It reads;

Part VIII – Tortfeasors


“37. Proceedings against, and contribution between, joint and several fort-feasors.

............................


(6) In a case referred to in s 54 of the Motor Vehicles (Third Party Insurance) Act and s 20 of the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act, the Trust shall be deemed, for the purposes of this part –


(a) to be a tortfeasor in relation to the death or bodily injury in question, if the insured person was a tortfeasor in relation to the death or injury;


(b) to be responsible for the damage to the same extent as the insured person would have been held to be responsible if sued.”


  1. These provisions confirm that in any claim where a death has or deaths have occurred in a motor vehicle accident, the relevant Act on which to rely on is the Wrongs (Miscellaneous Provisions) Act. Section 16(1(a) of the Frauds and Limitations Act speaks of actions founded “... on simple contract or on tort”.
  2. Although the facts of this present case and that of Sakaire Ambo (supra) are different, both cases involved claims for wrongful death, one caused by a motor vehicle, the other by an alleged police shooting. Both actions are however covered under the Wrongs (Miscellaneous Provisions) Act, (Wrongs Act), Sections 25 and 26.
  3. If the submission and arguments raised by the plaintiff is to ask this Court to treat this claim as an action at common law in order to attract the application of s (16(1)(a) of Fraud and Limitations Act. I would adopt the conclusion held in Sakaire Ambo (supra) and reject the plaintiff’s argument because this is an action based on statute. Under schedule 2.2 of the Constitution, common law will be adopted and applied as part of the underlying law only if it is not inconsistent with a statute.
  4. In this case the cause of action is governed by Wrongs (Miscellaneous Provisions) Act and s 31 stipulates the limitation period. Consequently, a cause of action arising out of wrongful death is governed by the Wrongs (Miscellaneous Provisions) Act Ch. 297. This claim was filed outside of the 3-year period stipulated under s 31 of the Wrongs Act.
  5. Consequently, the proceedings are time barred pursuant to s 31 of the Wrongs Act. No cause of action lies against the State

Order of the Court:


(i) The entire proceedings are dismissed

(ii) Costs are in the cause

______________________________________________________________
Twivey Lawyers: Lawyers for the Plaintiff
Solicitor General: Lawyers for the Defendants


[1]Sakaire Ambo v Motor Vehicles Insurance (PNG) Trust (2002) SC681

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