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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1396 OF 2016
BETWEEN:
MICHAEL EYAL
Plaintiff
AND:
MR GRAHAM BIDANG- THE DIRECTOR,
NATIONAL POLYTECHNIC INSTITUTE OF PAPUA NEW GUINEA
First Defendant
AND:
NATIONAL POLYTECHNIC INSTITUTE OF PAPUA NEW GUINEA
Second Defendant
AND:
DR UKE KOMBRA- SECRETARY
FOR THE DEPARTMENT OF EDUCATION
Third Defendant
AND:
PROF DAVID KAVANAMUR- ACTING SECRETARY FOR
DEPARTMENT OF HIGHER EDUCATION, RESEARCH, SCIENCE AND TECHNOLOGY
Fourth Defendant
AND:
DOUBLE PORTION ELECTRICALS LIMITED
Fifth Defendant
AND:
PNG POWER LIMITED
Sixth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Defendant
Waigani: Tamade, AJ
2022: 23rd August
2023: 24th March
TORTS – negligence – principle of res ispa loquitor – defendants are responsible – illegal electricity connection – negligence of Institute – occupiers liability – not pleaded – institute owes a duty of care to the deceased – plaintiff’s son electrocuted by live wires while on school premises – Wrongs (Miscellaneous Provisions) Act
DAMAGES – dependency claim – claim made by parents of deceased son – claim under custom is denied – general damages for loss of support by deceased son granted – ‘bel kol’ money was paid by polytechnic institute and considered as solatium payment - Wrongs (Miscellaneous Provisions) Act – Section 29 – other heads of damages refused as considered unjust enrichment-
Cases Cited:
Inabari v Independent State of Papua New Guinea [1991] PNGLR 427
Karawari Lodge Pty Ltd v Luck [1998] PGSC 17; SC553
Kaipa v RD Tuna Canners Ltd (2017) N6650
Kope v Tourism PNG Ltd [2010] PGNC 105; N4138
Komba v Duwaba [2006] PGNC 218; N2979
Koko v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 167
More v Tokam [1997] PGNC 115; N1645
Okevi v PNG Electricity Commission [2006] PGNC 63; N3074
Pelgens Ltd v Mathew [2002] PGNC 28; N2346
Porter v Morrison [1973] PNGLR 240
Uokare v State [1988-89] PNGLR 655
Weida Da Ltd v Sipa (2018) CIA 26 of 2017
Legislation:
Wrongs (Miscellaneous Provisions) Act
Counsel:
Ms. Elizabeth Ngomba, for the Plaintiff
Ms. Roddy Messa, for the First, Second, Third, Fourth and Seventh Defendants
24th March, 2023
1. TAMADE, AJ: The trial of this matter was heard on 16 August 2022 with Ms. Ngomba for the Plaintiff and Ms. Messa of the Office of the Solicitor General appearing for the First, Second, Third, Fourth, and Seventh Defendants. The matter was then adjourned for submissions from counsels on 23 August 2023 however Ms. Messa of the State did not attend, and the Court proceeded to hear Ms. Ngomba of the Plaintiff who also filed written submissions. This is a decision on liability and damages on the matter.
Plaintiff’s claim
2. The Plaintiff’s claim is a dependency claim pursuant to the provisions of the Wrongs (Miscellaneous Provisions) Act on behalf of himself as the father of the deceased and on behalf of the mother of the deceased.
3. The Plaintiff claims that during the late hours of 16 June 2015, the deceased, a male aged 22 years old named Jason Eyal who was studying at the National Polytechnic Institute in Lae doing his first year undertaking a Diploma in Business Studies was electrocuted when he in the company of other male students attended to calls for help at the female dormitories. The deceased is alleged to have leaned on the security lighting pole outside the female dormitory when the electric current flowing through the pole caused the electrocution. It is alleged that there was some electrical extension work on the poles to the girl’s dormitory and, as a result of live wires, the deceased got electrocuted when he leaned against the poles. The deceased was rushed to the Angau General Hospital but tragically passed away.
4. The Plaintiff claims that his son’s electrocution was caused by the negligence of the Defendants. The Plaintiff claims that the negligence on the part of the National Polytechnic Institute and its administration is that it failed to take reasonable care to ensure the students of the institution are not exposed to electrical risks such as what occurred to the deceased. The Third and Fourth Defendants being the Secretary for the Department of Education and the Acting Secretary for the Department of Higher Education, Research, Science and Technology are alleged to be negligent that they failed to investigate into the affairs of the Institute when students held a peaceful protest in 2013 and in 2015 and therefore as a result of not overseeing the affairs of the institute and ensuring that it was in a conducive state for students to learn, the deceased was exposed to the electrical risk which caused his death. The Plaintiff claims vicarious liability against the State in this regard for the negligence of the Third and Fourth Defendant as servants of the State.
5. The Fifth Defendant is the contractor that did the electrical works. The Plaintiff claims that the Fifth Defendant failed to follow mandatory procedures in engaging PNG Power Ltd the Sixth Defendant to certify and inspect the electrical extension before it was energized and failed to take due care and attention to ensure the electrical work did not pose a safety risk hazard to the students and occupants of the Institute. The Plaintiff also claims negligence against PNG Power to carry out its function under the Electricity Industry Act to determine standards and inspections of electricity extensions and works and failed to investigate and examine the electrical works at the Institute which resulted in the death of the deceased.
6. The Plaintiff relies on the principle of res ipsa loquitor and claims that each of the Defendants are each and severally liable for the negligence causing the death of the decease. The Plaintiff claims general damages, economic loss pursuant to section 27 of the Wrongs (Miscellaneous Provisions) Act, special damages, for funeral expenses, solatium and other damages and also in the alternative, the Plaintiff makes a claim in custom pursuant to Schedule 2.3 of the Constitution and the Customs Recognition Act for reasonable compensation for the death of his son from the Defendants according to the custom in the Highlands Region.
The Defendants’ Defence
7. The First, Second, Third, Fourth and Seventh Defendants have filed a Defence generally denying the Claim through the Office of the Solicitor General on 20 February 2017. These Defendants also state that the Plaintiff is not the proper beneficiary on a dependency claim of the deceased as he had abandoned the deceased and his mother and as the deceased was raised by his mother, if any custom was to apply in regard to compensation for the death of the deceased, the custom of the mother from Kongara people of the Autonomous Region of Bougainville should apply.
8. The Fifth and Sixth Defendants have not filed any Defence to the claim.
Issue
Are the Defendants liable for negligence for the death of the deceased Jason Eyal caused by electrocution?
10. The claims for negligence against each of the Defendants can be considered to be as foreseeable or a direct conduct or omission from the Defendant directly responsible cascading out to the Defendants if far remote from the accident that happened. The Plaintiff therefore has a duty to prove every claim against every Defendant as pleaded in his Statement of Claim.
11. The Plaintiff has relied on the principle of res ipsa loquitor which basically means that where an accident happens, the fact that it happened implies some form of negligence on those responsible. In the case of Porter v Morrison[1], the Court held that:
The condition for the operation of the principle res ipsa loquitur is that the accident is such as in the ordinary course of things does not happen if those who have the management use the proper care. Scott v. London and St. Katherine Docks Co. [1865] EngR 220; (1865), 3 H. & C. 596[1865] EngR 220;[1865] EngR 220; , 159 E.R. 665 applied.”
12. Also, in the case of Weida Da Ltd v Sipa[2] , the Court said this:
“This is not a case of res ipsa loquitur which is a description of evidence where common sense dictates the explanation of how the incident occurred. As cited by Charlesworth & Perry on Negligence (11th ed. 2006, Sweet & Maxwell) (pg. 402), "[res ipsa] would not assist where there was no evidence to support an inference of negligence and a possible non-negligent cause of the injury existed."
13. The Plaintiff therefore still has a duty to put forth evidence to support an inference of negligence of the injury or death occasioned.
14. In Kaipa v RD Tuna Canners Ltd[3], the Court held that:
“To establish a cause of action in negligence, a plaintiff must prove the elements of the tort:
(a) the defendant owed a duty of care to the plaintiff;
(b) the defendant breached that duty (acted negligently);
(c) the breach of duty caused damage to the plaintiff; and
(d) the type of damage was not too remote.”
Evidence by the Plaintiff
15. The Medical Certificate of Death, the Coroner’s Report and the Post-mortem Report attached to the Affidavit of Michael Eyal confirmed that the deceased Jason Eyal died as a result of electrocution.
16. The Plaintiff in his Affidavit filed on 26 November 2018 relies on a newspaper publication that the Chief Executive Officer of PNG Power Limited was reported to say in a statement to the media that the tragic death of the deceased Jason Eyal was caused by illegal connection to the bulk meter set up by PNG Power Limited inside the National Polytechnic Institute. The National Polytechnic Institute was therefore responsible for the management of its bulk meter and any connection, modification or alteration to the electrical circuit or under the bulk meter should have been under the care of the Institute. PNG Power stated that the Institute or it’s contractor should have engaged PNG Power to inspect and award certification for power up. This is the only evidence the Plaintiff has by way of a media publication from PNG Power as to the negligence of the Polytechnic Institute in regard to illegal connection in electricity which caused the death of Jason Eyal.
17. The Plaintiff also relies on the Affidavit of Mus Palang filed on 7 November 2018 as exhibit P3. This witness states that he is a Licensed Electrician and that he worked as a licenced electrician from 1971 to 1981 with Elcom now PNG Power. He states that he currently runs his own electrical business in Lae and has been so for more than 29 years. He gives his opinion that the incident could have been avoided if proper procedures were followed regarding the electrical wiring job. He claims that there is no testing by PNG Power Inspectors. I find this witness evidence totally hearsay as he has not actually attended at the scene and or done any inspection on the site but had given purely opinionated evidence and therefore, I disregard his evidence.
18. The evidence of Murray Eyal who is the brother of the deceased who was also attending the same Institution and Robin Wape who was a student leader at the time of the incident only go to say that they were present at the Institution when the deceased was electrocuted. They also say that the conditions of the facilities at the Institute had deteriorated that it was not up to standard and that students had boycotted classes for almost 3 months in the beginning of 2015. This was a year prior to the incident where Jason Eyal was electrocuted. I find no evidence that the boycott of classes and the allegations of the state of the school facilities is directly connected to the electrocution of the deceased. All the evidence presented by the Plaintiff are merely complaints and it is remote in my opinion to the cause of the electrocution of the deceased. The claim against the Third and Fourth Defendant in their capacity as Secretary for the Department of Education and Higher Education, Science and Technology is therefore remote to the cause of electrocution of the deceased. The claim against the State on vicarious liability on the conduct of the Third and Fourth Defendant shall therefore fail.
19. The claim against PNG Power Limited is also not made out in the evidence by the Plaintiff. PNG Power had by media publication stated that it is the duty of the Institution as a customer for the management of its bulk meter to avoid any illegal connection and or electrical faulty lines and to seek the inspectors of PNG Power to inspect and certify any electrical works. I find no liability against PNG Power in this regard as the claim by the Plaintiff is largely speculative in my opinion as against PNG Power and has not been made out in evidence and in common sense.
20. There is also no specific pleading in the Statement of Claim against the Fifth Defendant who may be a contractor engaged by the Institution and there is also no evidence against this Defendant to prove that their involvement in the electrical works of the Institution caused the electrocution of the deceased.
21. I find in conclusion that the evidence produced by the Plaintiff is that the deceased Jason Eyal died as a result of electrocution and that the electrocution occurred on the premises of the Polytechnic Institute. PNG Power states by media publication that the electrocution was caused by illegal connection of power and that the responsibility lays with the Institution and any contractor it may have engaged to do the said electrical works.
The law
22. In the case of Okevi v PNG Electricity Commission[4], this was a case where two boys were electrocuted at Badili from a live stray electricity line. The claim against the Electricity Commission was that the Electricity Commission failed to attend to the faulty power line when it was reported. The incident happened in a public place next to the settlement where the two boys were living. The Court found PNG Electricity Commission negligent for failing to attend to the faulty power line when it received report and failed in its duty. PNG Power’s statutory duty therefore lies directly where it maintains electricity in public places. In the present case, there is no evidence that such faulty electrical work was reported to PNG Power. The duty to do so rests with the customer being the Institute.
23. The Court in Pelgens Ltd v Mathew[5] also quoted this case in regard to the duty of entities responsible for electricity in public places:
“In Munnings v Hydro-Electric Commission [1971] HCA 27; (1971) 125 CLR 1, a young boy in the company of another youth climbed so far up a power pole in order to reach a bird's nest and came into contact with uninsulated conductors carrying electricity that caused him severe burns. The land on which the pole was erected was a public property and easily accessible to all manner of people. The High Court took the view that for the Commission to use uninsulated cables for transmission of electricity through a public area without taking proper preventative measures to avoid injury to the members of the public, in particular children, was irresponsible and falling below the standard of care required in the circumstances...”
24. PNG Power therefore can-not be responsible for something that was not reported to them on a private premises which was caused by an illegal connection, and I find that the buck stops with the customer being the Institute.
25. The claims against all other Defendants including the State are too remote to the cause of the electrocution of the deceased, there is no evidence to support those claims and it shall be dismissed accordingly.
Negligence of the Institute
26. I find that the National Polytechnic Institute of PNG as the occupier of the premises in which the Institution is located has a duty of care to the students and the occupants of the Institute and failed to take appropriate measures to ensure live wires are not lying around and to ensure the safety of its students. The Plaintiff has not specifically pleaded occupier’s liability but this is a case of occupier’s liability.
27. Section 52 of the Wrongs (Miscellaneous Provisions) Act is in the following terms:
52. EXTENT OF OCCUPIER’S ORDINARY DUTY.
(1) An occupier of premises owes the same duty (in this section referred to as “the common duty of care”) to all his visitors, except so far as he is free to, and does, extend, restrict, modify or exclude his duty to a visitor by agreement or otherwise.
(2) The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.
(3) The relevant circumstances for the purposes of this section include the degree of care, and of want of care, that would ordinarily be looked for in such a visitor, so that, amongst other things, in proper cases–
- (a) an occupier must be prepared for children to be less careful than adults; and
- (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.
(4) In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard shall be had to all the circumstances, so that, amongst other things–
- (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning shall not be treated without more as absolving the occupier from liability unless, in all the circumstances, it was enough to enable the visitor to be reasonably safe; and
- (b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier shall not be treated without more as answerable for the danger if, in all the circumstances, he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
(5) The common duty of care does not impose on an occupier an obligation to a visitor in respect of risks willingly accepted as his by the visitor, and the question whether a risk was so accepted shall be decided on the same principles as in other cases in which one person owes a duty of care to another.
(6) For the purposes of this section, persons who enter premises for any purpose in the exercise of a right conferred by law shall be deemed to have been permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.
28. The Pelgens Ltd v Mathew[6] case is a case on occupier’s liability. In that case, the Respondent was trying to access her garden which was within the farmland of the Appellant. As she was trying to get to her garden, she was chased and suffered injuries from the dogs on the property. The Court found that she was not a trespasser, but a licensee as she was trying to get to her vegetable garden which she had regularly cultivated and accessed with the consent of the farm manager. The owner of the farm therefore owed her a duty of care to ensure she was not bitten by the security dogs. The Court also found that she contributed to her own injury by not entering through the gate but by scaling the fence of the property.
29. In Karawari Lodge Pty Ltd v Luck[7], it was a case where the Supreme Court considered an appeal from a decision of the National Court which concerned an employer’s duty of care to provide safe systems of work for its employees. In that case, there was a first robbery at the lodge which usually houses employees and tourists/guests. The employer took steps to engage local villagers and a lone security guard at the lodge after the first incident. There was then a second incident where criminals robbed the lodge. The Respondent sustained injuries as a result of the second robbery and sued for negligence on the proprietor in failing to keep a safe place for him to work and that the proprietor as the employer owed him a duty of care to ensure criminals were kept out. The Supreme Court upheld the appeal and found that the Appellant did take reasonable steps to protect the Respondent after the first robbery against the risk of injury intentionally caused by criminals.
30 The Karawari Lodge[8] case was referred to in Kope v Tourism PNG Ltd[9] where the Plaintiffs suffered injury as a result of a robbery that happened at the lodge, they were working in. The Court found that the facts of the case was distinguishable to the Karawari Lodge case as in Kope, the employer “did nothing to improve the security and lighting at the lodge even after the plaintiffs requested them, thus the defendants were in clear breach of their common law duty to provide safe and secure workplace for the plaintiffs.”
31. I find that the National Polytechnic Institute of PNG as the occupier of the premises owes a duty of care to the deceased Jason Eyal and all other students, teachers and occupants as licensees lawfully being on the property to ensure that its premises was safe. That duty was breached when the deceased leaned on the live electricity from the pole near the girls’ dormitory and was electrocuted resulting in death. The Institute’s duty also extended to any electrical work if given to a contractor, it should have been done with due care and attention as not to be a risk and safety hazard to the students and teachers and or its licensees. The death of the deceased was therefore directly caused by the negligent actions and or inactions of the Institute and its management, servants and agents.
Damages
32. The case of Mel v Pakalia[10]sets out the principles on assessment of damages that the Court should take into account. These are:
“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.)
Business Group v Sakawar Kasieng [1997] PNGLR 331, National
Court, Lenalia J.)
Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
General Damages for loss of support
33. The Plaintiff’s claim is one under section 27 of the Wrongs (Miscellaneous Provisions) Act as pleaded in the Amended Statement of Claim which is an estate claim and Ms. Ngomba submits that it is also a claim under section 25 and 26 of the Wrongs (Miscellaneous Provisions) Act which is a statutory claim for wrongful death or neglect causing death. These provisions in statute replace the claim in common law and gives the statutory basis for the claim that the Plaintiff and the deceased mother are entitled to damages as a result of the wrongful death of the deceased.
34. Ms Ngomba has submitted the case of Komba v Duwaba[11] where the Court discussed dependency of parents on children as opposed to children being dependent on parents. In a claim for negligence resulting in loss of a child, the Court said this:
“(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.”
35. In Koko v Motor Vehicles Insurance (PNG) Trust[12], the Court considered a claim for the loss of life of a mother where it was held that:
“(1) Whilst in a dependency claim for the loss of a mother, infant children cannot recover damages for loss of their mother’s love and affection nor for the grief they have suffered:
Davies v Powell Duffryn Associated Collieries Ltd (No 2) [1942] AC 601, followed.
Reincke v Gray [1964] 2 All ER 687; Thompson v
Mandla [1976] 2 NSWLR 307 and Fisher v Smithson (1978) 17 SASR 223, considered and applied.”
36. In More v Tokam[13], the Court considered a dependency claim of parents of an 18-year-old. The Court said this in refusing to award a dependency claim to the parents:
“... the evidence is that the deceased was not of full capacity to support anyone economically in that he was an infant himself. The age of the deceased is given as 18 years old. As the medical report supports this age, I accept that he was 18 years old. Therefore, he was still under the legal maturity age of 21 years under S. 21(a) of Frauds and the Limitations Act 1988 and as such, whatever economic activities he engaged in would have been to contribute to his own maintenance. He would have been a dependant himself at the most and in no position to support anyone else, including his parents.
For these reasons, I would not allow any damages for dependency loss.”
37. In Uokare v State[14] the parents of the deceased an 18-year-old village farmer who died as a result of a motor vehicle accident were awarded damages for the loss of them being dependent on their son. The Court held that:
“Taking into account a life expectancy of 20 years for the parents and an increased need for support in the later years, an appropriate method of calculating loss of dependency was to take a figure of K4
per week for the latter 10 years with a deduction for early payment of 10 per cent.”
38. In taking into account, all these cases, there is legal basis for awarding a dependency claim on statute based on section 25,26 and 27 of the Wrong (Miscellaneous Provisions) Act. The deceased in this case was 22.5 years old at the time he passed. In the PNG context, children do take care of their parents in some cultures when their parents reach old age. This support may not be a full support in some families where the son or daughter is living far away in another province or urban area but there is still some support from the children to their aging parents. In some societies in PNG, these are honourable customary obligations where you are revered by your clan or community if you take care of your aging parents. I also take note that the deceased parents are separated, and the Plaintiff has moved on to live a separate life with his new spouse.
39. Ms Ngomba has submitted that the Plaintiff and the deceased mother are expected to live to the age of 80 years old and therefore they could have benefitted from K50 per week from the deceased had he completed his education and was employed with a steady income. The Plaintiff was 59 years old at the time the Writ was filed, and the deceased mother was 57 years old when the deceased died. The Plaintiff claims a total of K57 200 with his calculation as follows:
40. There is no basis for the Plaintiff’s assertions that the life expectancy in PNG is 80 years. The life expectancy in PNG as of 2022 is at 66 years old.[15] I would therefore calculate as:
Past and Future Economic Loss
42. The Plaintiff’s claim for Economic Loss in terms of past and future loss has no legal basis and therefore those claims are denied. To consider these awards is unjust enrichment in my view.
43. The Plaintiff’s claim for loss of business investment in the sum of K52, 850.00; in that as he is a geologist and was granted a mineral exploration licence, he travelled to Vanimo on 6 June 2015 for exploration activities. He said that as soon as he heard of his son’s passing, he had to return to Lae. He is claiming that had it not been for his son’s untimely death, he could have made a business prospect in that sum. Again, there is no legal basis for such a claim, and I find that these types of claims are fanciful and farfetched to say the least, the probability is too remote in my view for such a perceived loss, it is a perceived loss and to consider it will be to open a flood gate of fanciful claims like these. The loss of a child should not be capitalised upon.
Special Damages- funeral expenses
44. Pursuant to section 28 of the Wrongs (Miscellaneous Provisions) Act, in awarding damages, special damages such as medical costs and funeral costs are considered and awarded provided the Plaintiff must prove that he incurred those expenses. The Plaintiff claims a total of K50 350 for funeral expenses. In Inabari v Independent State of Papua New Guinea[16], the Court said that funeral expenses included reasonable expenses in satisfying customary obligations and or ceremonies and awarded K2 406 for reasonable funeral expenses which included “clothes for the deceased, food for fourteen days after burial at K50 per day and motor vehicle hire for a period of seven days.” I consider that funeral expenses which include expenses to satisfy customary obligations vary at such a big contrast in PNG. In some societies in PNG, it is a big extravagant occasion where the grieving family shows their grief in the extravagant ceremony and feast whilst in other cultures, grief is not celebrated or held with such a great economic value or expenses. The Plaintiff states that he had to hire vehicles, 20 pigs were paid for, 200 chickens were slaughtered etc. The Plaintiff submits that this is a normal tradition in the highlands. I do not view these expenses as “reasonable”.
45. In the Affidavit of Emmanuel Mah who was the Financial Controller of National Polytechnic Institute of PNG, he stated that the Haus Krai of the deceased was held at his residence at the Institution as he is from the same area as the deceased mother from the Autonomous Region of Bougainville. He also stated that there were disagreements between the Plaintiff and the mother of the deceased as the Plaintiff wanted the Haus Krai to be at his residence at Igam Block with his new wife whilst the mother disagreed. There was also dispute as to where the body of the deceased will be buried. It was eventually agreed when the deceased uncle Sam Kauona arrived from AROB, and the Plaintiff agreed for the deceased to be repatriated to AROB. Mr Mah stated in his evidence that the costs of the funeral arrangements and repatriation of the body was met by the Institution as a sign of good will for the death of the deceased. A total of K33 031.20 was spent on airfares of people travelling with the body including the Plaintiff. An amount of K15, 00 was paid to the Plaintiff as bel kol money for his son’s death from the National Polytechnic Institute. This is corroborated by the Affidavit of Graham Bidang the Director of the Institute. The National Polytechnic Institute has therefore met the funeral expenses, repatriation fees and on top of that a bel kol sum of K15, 000 therefore expenses under this heading funeral and out of pocket expenses by the Plaintiff is denied.
Solatium
46. Under section 29 of the Wrongs (Miscellaneous Provisions) Act, an amount of K600 is set by statute and is paid as solatium payment to the parents of the deceased. Ms Ngomba in her words says that this is a “lousy” sum. Well, this lousy sum is the law. An award for solatium or consolation is also discretionary. Section 29 (5) of the Wrongs (Miscellaneous Provisions) Act is in the following terms:
(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.
47. The National Polytechnic Institute has paid a bel kol sum of
K15, 000 already to the Plaintiff. This in my view is solatium or payment for solace. I refuse to award any payment for solatium.
Estate Claim
48. The Plaintiff also claims for an estate claim. That has already been considered under General Damages pursuant to section 27 of the Wrongs (Miscellaneous Provisions) Act. To claim again is unjust enrichment and that is refused.
Aggravated Damages and Exemplary Damages
49. The claims under aggravated damages and exemplary damages are refused as they are premised on the conduct of the other Defendants as to the management of the Institution after a student protest, a third-party contractor engaged to do the electrical works which claim is not made out etc. The death of the deceased was an unfortunate event. Having found that the proximity of the allegations on negligence against all other Defendants is too remote and not connected to the cause of death of the deceased, which was of illegal power connections, the buck stops with the Institute and therefore these heads of damages are refused.
Claim Pursuant to Custom
50. The Plaintiff is also claiming reasonable compensation for the death of the deceased pursuant to Schedule 2.3(1)(c) of the Constitution and the Customs Recognition Act. He is claiming for compensation according to the custom of the Highlands Region of Papua New Guinea. I note that this claim is made in the alternative to the Statutory Claim under section 27 of the Wrong (Miscellaneous Provisions) Act. Having considered and granted a claim under section 277 of the Wrong (Miscellaneous Provisions) Act, I am of the view that this claim is second bite at the cherry so to speak. To claim again in custom is unjust enrichment and therefore this aspect of the claim is denied.
Total Award of Damages
51. The total award of damages awarded to the Plaintiff and the deceased mother is therefore K18 200 each for the Plaintiff and the deceased mother totalling K36 400.00.
52. The Orders of the Court are that;
Orders accordingly.
___________________________________________________________
Tamutai Lawyers : Lawyers for the Plaintiff
Office of the Solicitor General: Lawyer for the First, Second, Third,
Fourth and Seventh Defendants
[1] [1973] PGSC 37; [1973] PNGLR 240 (1 June 1973)
[2] (2018) CIA 26 of 2017
[3] (2017) N6650
[4] [2006] PGNC 63; N3074 (23 June 2006)
[5] [2002] PGNC 28; N2346 (30 December 2002)
[6] Ibid
[7] [1998] PGSC 17; SC553 (5 June 1998)
[8] Ibid
[9] [2010] PGNC 105; N4138 (7 September 2010)
[10] [2005] PGSC 36; SC790 (1 July 2005)
[11] [2006] PGNC 218; N2979 (21 February 2006)
[12] [1988] PGNC 49; [1988-89] PNGLR 167; N675 (12 August 1988)
[13] [1997] PGNC 115; N1645 (26 September 1997)
[14] [1989] PGNC 126; [1988-89] PNGLR 655; N782 (30 October 1989)
[15] Life expectancy at birth, total (years) - Papua New Guinea | Data (worldbank.org)
[16] [1991] PGNC 49; [1991] PNGLR 427; N973 (17 April 1991)
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