Paul v Li [2024] PGNC 64; N10719 (9 April 2024)

N10719

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 897 OF 2018

BETWEEN
PEA PAUL as next Friend to PAUL LUYO in his capacity as the Employee of Sany Limited
- Plaintiff-

AND:
DONI LI in his capacity as General Manager of Sany Limited
- First Defendant-

AND
SANY LIMITED
-Second Defendant

Lae: Dowa J
2022: 23^rd March, 7^th April
2024: 3^rd & 9^th April

DAMAGES – negligence -breach of statutory duty to provide and maintain safe system of work at workplace – death of elderly man employed by defendants in beverage production factory-dependency claim by son of deceased on behalf of family members -need to plead details of dependants –whether dependency claim can be sustained – general damages for loss of support – plaintiff awarded total damages of K 30,200.00– plus interest.

Cases Cited:
Mathias Goma v& 703 others v Protect Security & Communication Ltd (2013) SC1300
Samot v Yame (2020) N8256
Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694
Richard Denis Wallbank & other v The State [1994] PNGLR 78
Komba v Duwaba & Others (2006) N2979

Counsel:
P Paul, Plaintiff in person
W Kume, for the Defendants

JUDGMENT

9^th April 2024

1. DOWA J: This is a judgment on both issues of liability and damages.
   

Facts

2. The Plaintiff is the son of late Paul Luyo, deceased. an elderly man, who died on 29^th April 2018 at the Angau Memorial Hospital. The deceased aged about 49 years originally from Wabag in the Enga Province was a resident of Lae. He was, at the time of death, an employee of the second Defendant, Sany Limited, a company based in Lae. The defendant company was conducting business as the Lipo Fruit Juice manufacturer and other products. The deceased was employed as a general worker as production handman, cleaner and helper. He commenced employment from 18^th May 2015 until his death on 29^th April 2018. The deceased died from chronic lung and heart disease due to persistent exposure to contaminated air.
   

Plaintiff’s Cause of Action

3. The Plaintiff alleges that the deceased’s death was caused by the Defendants breach of duty of care to its employee in failing to provide a safe system of work at the workplace. It is pleaded that the deceased while working at the local production plant operated by the Defendants was exposed to dust chemical fumes and smoke. It is pleaded that the Defendants failed to provide a safe system of work, particularly that they:
   

a, failed to devise, institute, and maintain a safe system of work,

b. Failed to provide proper safety equipment and gear at work in the factory area.

c. Failed to provide adequate ventilation in the factory and the surrounding areas.

4. The Plaintiff pleads that because of the negligence, the deceased persistently inhaled dust, chemical fumes, toxic and unclean air which affected his lungs and heart over a long period of time leading to his eventual death. As a result of his death, the deceased family, the widow and five children have suffered loss, in that they lost the company of the deceased as husband and father and breadwinner for the family. The Plaintiff therefore institutes the current proceedings seeking damages under various heads of damages.
   

Defendants’ Defence

5. The Defendants filed a Defence denying the claim. The Defendants plead in particular that: the deceased was employed for only six months , and at the time of his death, he was no longer an employee as he resigned prior to his death, that during his employment, he was engaged as a tape boy working outdoors where he had excess to fresh air, and that the factory was involved in producing liquid food , libo drinks and not chemical fumes or smoke was produced. The Defendants pleaded further that the deceased was an alcoholic and lived with or close to pig pens and may have contracted the disease elsewhere.
   

Issues

6. The issues for consideration are:
   
   1. Whether the Defendants are liable for breach of duty of care in failing to provide and maintain a safe system of work at the workplace.
      
   2. Whether the deceased died as a direct and foreseeable consequence of defendant’s breach of duty of care.
      
   100. If liability is established against the Defendants, is the Plaintiff entitled to any damages and if so, the amount of damages.
        

Trial

7. The trial was conducted by the tender of Affidavits by consent of parties except for the medical doctor’s affidavit which was admitted after objection subject to weight being given on the contents. The parties then filed Written Submissions and made oral submissions as well.

Plaintiff’s Evidence

8. The Plaintiff relies on the following Affidavits:
   
   1. Affidavit of Pea Paul sworn and filed 24^th January 2019
   2. Affidavit of Pea Paul sworn and filed 26^th February 2021
   100. Affidavit of Pea Paul sworn and filed 22^nd November 2021
   4. Affidavit of Dr. Lucas Komnapi sworn and filed 7^th February 2022

(Admitted into evidence, subject to weight)

9. This is the summary of the Plaintiff’s evidence. Pea Paul is the biological son of late Paul Luyo, deceased. He instituted these proceedings for himself and on behalf of the family members of the late Paul Luyo. The deceased died on 29^th April 2018 at the Angau Memorial Hospital, Lae. Prior to his death, the deceased was employed by the second Defendant as a production hands-on man, cleaner and helper in the Libo Juice making factory based at the old Talair Compound, Kamkumung, Lae. The deceased was employed for a period of three years commencing 15^th May 2015 until his death.
   
10. The Plaintiff deposes that the deceased died of chronic lung and heart disease caused by persistent exposure to dust, chemical fumes especially by Citric Acid and smoke while working in the factory. This was confirmed by the medical/Mortem Report done by Dr. Lucas Komnapi of Angau Memorial Hospital.
    
11. After becoming aware that the deceased’s death was directly caused by the working conditions, the family reported the death and the working conditions of the second Defendant’s factory to the government authorities and other relevant industrial institutions. The Immigrations Office in Lae investigated and arrested four (4) members/foreign workers, all of Chinese origin, for breaching Migration laws. They were all convicted and fined by the District Court on 28^th October 2018.
    
12. At the Plaintiff’s request, an inspection of the Defendant’s factory was also conducted by Holms Kissing, of Integrated Training and Development Consultancy Ltd, to ascertain the safety, health and hygienic conditions of the beverage processing plant. The inspection concluded that the defendants were running the factory in serious breach of health and hygiene, safety, building, electrical and plumbing codes as required by the Food Sanitation Act 1991 and recommended its closure.
    
13. The Plaintiff deposes that at the direction of the Court by his Honour, Kandakasi, DCJ, to produce further Scientific Evidence, the Plaintiff arranged for the testing of the Citric Acid, the main chemical compound used by the Defendants in the beverage production. The samples were tested by the National Analytical & Testing Services Ltd at the PNG University of Technology. The report stated that the Citric Acid contains toxic chemicals that come in powder form and requires the handler to wear gloves and other protective equipment.
    
14. The Plaintiff deposes that a copy of the report was then sent to Dr, Lucas Komnapi for a further medical opinion based on his earlier diagnosis. Dr. Komnapi, a senior pathologist at the Angau Memorial Hospital, confirmed in his medical report dated 7^th October 2020 that the deceased’s death was likely to be caused by the persistent exposure to and the inhaling of Citric Acid which contains toxic chemical powder which require the user to wear protective gear.
    
15. The Plaintiff concludes his evidence by stating that the deceased was not provided with safety or protective equipment while at work which was the direct cause of his death. As a result of the untimely death, the family has lost their father, suffered loss in income, and expenses for pursuing the case, the details of which are set out in the affidavits.
    
16. The Plaintiff seeks to rely on the Affidavit of Dr. Lucas Komnapi filed 2^nd February 2022. The affidavit is brief. Although it was objected to by counsel for the Defendant, it was admitted into evidence subject to weight being given. In the Affidavit, Dr. Komnapi deposes that he is the Senior Pathologist based at Angau Memorial Hospital and he confirms conducting the post mortem on the deceased and did an Autopsy Report. He deposes that according to his findings, the deceased died from Chronic Lung & Heart Disease caused by persistent exposure to dust, chemical fumes, and smoke.
    

Defendants’ Evidence

17. The Defendants seek to rely on the following Affidavits:
    
    1. Affidavit of Nehemiah Erah sworn and filed 28^th January 2020.
    2. Affidavit of Warren Kume sworn and filed 18^th June 2019
    100. Affidavit of Ben Kamson sworn and filed 28^th January 2020.
         
18. I will deal with Nehemiah Erah’s Affidavit first. After going through the Court file, I noticed the Affidavit of Nehemiah Erah was not filed, and the affidavit is not physically available amongst the documents in the Court file. On 3^rd April 2024, the Court recalled the matter to deal with this issue. Only the Plaintiff turned up in Court whilst counsel for the Defendants failed to turn up even though he was advised by the Court staff. When the matter was raised with the Plaintiff, he was not sure of the existence of this Affidavit. Since the Defendant’s counsel did not appear to address the Court, the Court then proceeded to determine the matter regardless.
    
19. The second Affidavit relied on by the Defendants is that of Ben Kamson. This is the summary of Ben Kamson’s evidence. He is the Supervisor of the factory. He deposes the factory does not produce harmful gases or anything dangerous. It is only a fruit factory. There are no fumes or dust produced in the factory. He deposes the deceased was employed for only six months and was terminated and was no longer an employee of the second Defendant at the time of his death. The deceased was employed as a “tape boy” and he did job in the open space, having excess to fresh air.
    
20. The third Affidavit relied by the Defendants come from Warren Kume. Warren Kume is the lawyer for the Defendants. He deposes generally that the Plaintiff did not properly plead the statement of claim disclosing a reasonable cause of action. Mr. Kume also takes issue with the Plaintiff for filing an Amended Writ of Summons without leave of Court. Finally, Mr. Kume deposes or repeats the facts stated in the Defence filed by the Defendants.
    

Submissions of Parties

21. The Plaintiff submits that there is sufficient evidence to prove that:
    
    1. The Defendants had a duty of care towards the deceased as employee.
    2. The defendants breached the duty of care by failing to provide a safe system of work at the workplace.
    100. The deceased’s sickness and his eventual death was directly caused by the Defendants’ breach of duty of care by failing to provide a safe system of work.
    4. As a result, the Plaintiff and the family of the deceased suffered loss in income and incurred expenses.
    5. The Plaintiffs are therefore entitled to damages for the loss and expenses.
       
22. Mr. Kume, counsel for the Defendants, submits that the proceedings be dismissed for two reasons: i) on competency grounds and ii) on the merits.
    
23. In respect of the competency matters, Mr. Kume submits that:
    
    1. The Plaintiff’s statement of claim is poorly pleaded and discloses no cause of action.
    2. The evidence was poorly presented, tainted with hearsay material.
    100. That documentary evidence was presented without the authors being cross examined.
    4. That no weight be given to Dr. Komnapi’s affidavit because he was not produced for cross examination.
       
24. On the merits of the case, Mr. Kume, submits that:
    
    1. The deceased was employed for just six months and died sometime later after termination.
    2. The deceased was employed as a “sticky tape boy” and was not exposed to dust or any dangerous chemical fumes.
    100. The Defendant’s factory was a liquid food factory and was a safe place to work.
    4. That the defendants provided a safe place of work by providing protective clothes and equipment to all workers and has continuously enforced the clothing requirements.
    5. The factory and the general place of work met the general building and other statutory requirements.
       

Consideration of the Issues

Competency Issues

25. Before I deal with the main issues, I will address the preliminary competency issues raised by the counsel for the Defendants. Firstly, the Defendants allege the Plaintiff has no reasonable cause of action. I note from the Court file that this issue was raised earlier by the Defendants in a Notice of Motion filed 22^nd June 2020. The Court per Kandakasi, DCJ, dealt with the issue by dismissing their application on 18^th August 2020. It has been adequately dealt with and is not open for consideration.
    
26. Secondly, counsel for the Defendants, submit that the evidence presented by the Plaintiff was not properly tested through cross-examination, especially the authors of the documents attached to the affidavits of the Plaintiff. This issue was not clearly raised at the trial. The parties consented to run the trial by affidavit evidence. I note the affidavits of both parties contain documents authored by others. However, by express consent of parties, the affidavits were tendered into evidence accordingly except for the Affidavit of Dr. Komnapi which was objected to by counsel for the Defendant. Dr. Komnapi’s Affidavit was allowed by the Court subject to the weight to be given which the Court will address when considering the whole of the evidence.
    
27. For the reasons given, the Court will proceed to consider the substantive issues on the merits.
    
    1. Whether the Defendants are liable for breach of duty of care in failing to provide and maintain a safe system of work at the workplace.
       
28. The Plaintiff has the burden of proof that the Defendants failed to provide and maintain a safe system of work at the workplace. The elements of tort to establish statutory duty of care are settled in the case: Mathias Goma & 703 others v Protect Security & Communication Ltd (2013) SC1300 and they are:
    
    • (a) a statute imposed an obligation on the defendant;
      
    • (b) the obligation was breached by the defendant;
      
    • (c) the purpose of the statute was to protect a particular class of persons;
      
    • (d) the plaintiff was a member of that class of persons;
      
    • (e) the plaintiff suffered damage as a result of the breach; and
      
    • (f) the Parliament intended to create a private right of action for breach of the statutory obligation.
      
29. The Defendants are engaged in the manufacturing business. They are involved in the production of Libo drinks. As a manufacturing industry, the defendants have a statutory duty of care under sections 35 to 41 of the Industrial Safety, Health, and Welfare Act 1961 in providing and maintaining a safe system of work at the workplace for the benefit of its workers/employees.
    
30. Section 39 of the Act is relevant, and it reads:
    

“39. PROTECTION FROM DUST, FLUFF, FUMES, ETC.

Where, in connection with any process carried on in any premises of employment, dust, fluff, fumes or other impurities are generated or given off, of such a character or to such an extent that the inhalation of them would be likely to be injurious or offensive to persons employed in the premises–

(a) effective measures shall be taken by the occupier–

(i) to prevent the accumulation in a work-room of any such dust, fluff, fumes or impurities; and

(ii) to protect such persons from the inhalation of the dust, fluff, fumes or impurities,

whether or not a notice has been served under Section 38; and

(b) where the nature of the process makes it practicable, exhaust appliances shall be provided and maintained as near as possible to the point of origin of the dust, fluff, fumes or impurities, so as to prevent them from entering the air of a work-room.”.

31. The evidence shows the factory was using Citric Acid to produce the Libo drinks. Citric Acid is an industrial chemical powder/dust used to produce the fruit juice. The Safety Data Sheet produced by the PNG Unitech Laboratory provides that those using the Citric Acid must wear protective clothing. There is no evidence that the Defendants provided any protective clothing like gloves and glasses for the eyes and face.
    
32. The Plaintiff relies on an inspection conducted by one Holms Kissing on 28^th June 2018 which shows that the Defendants were carrying on a beverage production in serious breach of the health and hygiene, safety, building, electrical and plumbing codes as required under the Food Sanitation Act 1991 and recommended for its closure. In particular, the report shows the facility has no proper sanitation, the toilet is found next to the production area, the staff have no toilets or wash down facilities and no personal protective equipment is available and inadequate facilities to prevent contamination of food.
    
33. In response, the Defendants relies on an inspection report by Godfrey Worio. Godfrey Worio is the Manager, Health Services, Lae Urban Local Level Government, who says, the Defendants business premises are generally satisfactory but with a recommendation for the establishment of a Quality Assurance Unit to meet other regulatory requirements.
    
34. I have considered the two reports and prefer the report by Holmes Kissing. Mr. Kissing’s report is comprehensive and written in June 2018, only four months after the death of the Deceased. It is supported by photographs of the actual place of production. The report provided by the Defendants is done in February 2020, about two years later and provided after the commencement of the proceedings. The report is brief and too general.
    
35. It appears the business is owned and operated by non-citizens. Immediately after the death of the deceased, an investigation into the Defendants’ operations was carried out by the Immigration Office and four of the foreign workers at the Defendant’s factory were charged and fined for various offences under the Migration Act 1978 including making false declarations and for disobeying visa obligations. While this may not be the determining factor, it does give the impression or propensity for failing to meet the requirements of industrial safety, health, and welfare of its workers by the Defendants.
    
36. The first Defendant did not give any evidence. While the Plaintiff bears the burden of proof, the Defendants have an obligation to provide rebuttal evidence in support of their Defence. Overall, the Defendants have not brought any credible rebuttal evidence, let alone scientific evidence, as directed by the Court, to show that they have met the requirements of Industrial Safety, Health, and Welfare Act 1961 and the Food Sanitation Act 1991. I find on the balance of probabilities that the Defendants have breached their duty of care in failing to provide a safe system of work in the beverage factory.
    
    2. Whether the deceased died as a direct and foreseeable consequence of defendant’s breach of duty of care.
       
37. The Plaintiff submits that the deceased died as a direct result of the Defendants’ failure to provide a safe system of work. That the deceased was working in an environment where he was exposed to toxic chemicals and dust. He was not provided with protective clothing like gloves and glasses.
    
38. In response, the Defendants submit that the deceased was working outside as a “sticky tape boy” and not directly involved in production. That he was working in open space with plenty of fresh air. That the factory was producing fruit juice and was not involved in any dangerous chemicals. And that the deceased was working for a brief period of just six months.
    
39. Contrary to the submissions of the Defendants, a good quantity of Citric Acid was used in the production. It comes in the form of powder or dust. It contains toxic chemical compounds according to the analytical tests done by National Analysis laboratory of PNG Unitech and that of Dr Komnapi’s medical reports and that those using Citric Acid need to wear protective clothing.
    
40. At this point, it is important to comment on Dr. Komnapi’s medical reports because of the objection raised by counsel for the Defendants. Dr. Komnapi is a Senior Pathologist at the Angau Memorial Hospital. He conducted an autopsy of the deceased on 9^th May 2018, about 10 days after the death. The deceased was a patient at the Angau Hospital. The report contains detail findings. Dr. Komnapi states in his report “that the deceased died from chronic lung and heart disease due to persistent exposure to contaminated air (with dust, chemical fumes and smoke)”. Dr. Komnapi did a second medical report on 27^th October 2020. He did this report after he was presented with information that the deceased was exposed to Citric Acid at the Defendant’s factory. Dr. Komnapi concluded that citric acid was a toxic chemical powder, and the user must wear personal protective equipment, and persistent exposure without protective clothing can be detrimental to a person’s health. The autopsy report was done in his routine job as a pathologist at the hospital in May 2018. The second report, a scientific report, was done at the request of the Plaintiff in response to a direction by the Court by his Honour Kandakasi, DCJ, given on 18^th August 2020 requiring further scientific evidence. In my view the medical and scientific evidence given by Dr. Komnapi are consistent and credible. They are given in his professional capacity, and I will give due weight in determining the cause of death and the issues raised in these proceedings.
    
41. Although the Defendants submitted the deceased worked for a brief period of six months as a “sticky tape boy”, the Defendants failed to produce the employment records to show the employment history and details. They failed to provide the job description and the role he played. They failed to produce when he was terminated from employment. In the absence of evidence to the contrary, I accept the evidence of the Plaintiff that the deceased did work for the Defendants as a general employee of the Defendants for a period of three years. I also find he was engaged as a general worker at the production plant where he was exposed to the Citric Acid over a long period of time. I also find he was not provided with protective equipment/clothing during the time of his engagement at the production plant over the period of employment. Based on this finding, it is more probable than not that the deceased developed the chronic lung and heart disease which caused his eventual demise. This is based on the medical diagnosis that that the deceased most likely than not that he died from inhalation of the Citric Acid powder based on both the history and on the results of the autopsy conducted on the deceased.
    
42. In my view, based on the analysis of the evidence and on the balance of probabilities, I find the deceased death was caused wholly or contributed to by the failure of the Defendants to provide a safe system of work in the workplace. I therefore find the Defendants are liable in damages.
    
    100. Is the Plaintiff entitled to any damages and if so, what is the reasonable damages?
         
43. The law on assessment of damages is settled: In Samot v Yame (2020) N8256, His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and 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.)
  
• Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
  
• The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
  
• The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
  
• If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
  
• Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
  
• The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)
  
• The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)
  
• The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”
  

44. I will adopt and apply these principles in the present case when considering each head of damages sought by the Plaintiff.
    

Dependency Claim

45. This is a dependency claim based on common law of negligence as well as a breach of statutory duty of care. The action is brought within the framework of the Wrongs (Miscellaneous Provisions) Act. Part IV of the Act is relevant. It ensures that if a person causes a death of another person by a wrongful act or neglect of duty of care or some default, that person is liable to pay damages and expenses to the living relatives of the deceased. Under section 26, the relatives of the deceased may include husband, wife, children, brother, sister, uncle, or aunt of the deceased.
    
46. The Plaintiff, Pea Paul, pleads that he is the son of the deceased, and he institutes these proceedings on behalf of the widow and five children. He claims in the statement of claim, loss of income, life expectancy claim, special damages, interest, and cost of the proceedings.
    
47. In my view, the pleadings are poorly drafted as the names and age of the dependent children and the widow are not disclosed. I note that the Plaintiff commenced the proceedings himself and it seems he did not have the assistance of a lawyer in drafting the statement of claim. The law on pleadings is settled in the case Papua New Guinea Banking Corporation Ltd v Jeff Tole (2002) SC694 that ...unless there is foundation in the pleadings of a party, no evidence and damages or relief of matters not pleaded can be allowed. The Plaintiff will only be entitled to what he has pleaded and not otherwise.
    
48. The Plaintiff’s claim is principally for dependency loss as well as other heads of damages as is allowed by law. I will now proceed with the issue of assessment of damages under each head of damages.
    

Loss of income

49. The Plaintiff claims K 85, 800.00 for loss of income. This is calculated on the basis that the deceased would earn K300.00 per fortnight for 11 years until retirement. This claim and calculation are misconceived. It is pleaded as if the deceased is pursuing the claim for himself, rather than the dependents claiming dependency loss.

Dependency loss

50. As I stated earlier, this is a dependency claim under the Wrongs (Miscellaneous Provisions) Act. However, the details of the dependents are not particularized. No evidence has been presented giving details of the dependents except for the Plaintiff himself. Although the Plaintiff appears to be more than 18 years old, he is entitled to a reasonable sum for dependency based on various cases decided in this jurisdiction like Komba v Duwaba (2006) N2979 and others. I will allow a dependency loss at K 20.00 per week for a period of 5 years totalling K 5,200.00

Life Expectancy Claim/Exemplary Damages

51. The Plaintiff pleads and claims K 100,000.00 for loss of life expectancy. He submits that the deceased would have lived at least up to more than 70 years, but his life was cut short by 21 years. Again, this claim is misconceived. However, instead of rejecting this misguided head of damages, in my view this claim could be treated as one coming under the either under the head of general damages or exemplary damages. This is because the fact that damages cannot be assessed with certainty cannot relieve the wrong doer of the necessity to pay damages. This case is an appropriate case for an award of exemplary damages. The Plaintiff and the family members suffered loss of their father due to the Defendants breach of statutory of care. It calls for punitive damages. A reasonable amount of compensation be considered and, in my view, a sum of K 10, 000.00 is reasonable and shall be awarded.
    

Special Damages

52. The Plaintiff claims the sum of K 38, 520.00. for special damages. The Plaintiff submits that it cost them K 40, 000.00 for funeral expenses, including repatriation of the body to Tumbilian village, Wabag. He submits that the Defendants assisted in the expenses calculated to be in the sum of K 1,480.00. Deducting the Defendants’ contribution, the Plaintiff claims the balance of K 38,520.00. The Plaintiff did not particularize the expenses. He has not provided any receipts for the payments. In the absence of the receipts, the Plaintiff is not entitled to the amount claimed. However, it is obvious expenses were incurred in meeting the funeral and the repatriation costs. I will allow for a reasonable sum of K 12,000.00.
    

Estate Claim

53. A claim for solatium or estate claim is allowed in law and the conventional sum awarded over the years have increased from K 600.00 to K3,000.00. Refer: Richard Denis Wallbank & other v The State (1994) PNGLR 78 and Komba v Duwaba & Others (2006) N2979. I will award K3,000.00 for the estate claim.
    
54. The total sum awarded in damages is K 30,200.00
    

Interest

55. The Plaintiff is entitled to interest. Interest at 8% is awarded on the judgment sum of K30, 200.00 which commences from date of Writ, 1^st August 2018 to 9^th April 2024 (2,076 days). It amounts to K 13,741.41.
    
56. The total judgment sum including interest is K43,941.41.
    

Cost

57. The Plaintiff claims cost. It is a discretionary matter. As the Plaintiff has successfully prosecuted this claim, he is entitled to cost.
    

Orders

58. The Court orders:
    
    1. Judgment be entered for the Plaintiff in the sum of K43,941.41. inclusive of interest.
       
    2. Post judgment interest shall accrue at the rate of 8% after 30 days from date of this order.
       
    3. The Defendants shall pay the cost of the proceedings to be taxed, if not agreed.
       
    4. Time be abridged.
       

Pea Paul: Plaintiff in Person
George Kaore Lawyers: Lawyers for the Defendants