Gugi v Stol Commuters Pty Ltd [1973] PGSC 17; [1973] PNGLR 341 (5 October 1973)

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DAMAGES - Assessment - Lord Campbell’s action - Action by widow in respect of death of husband - Matters to be taken into account - Prospects of remarriage - Prospects of further children of marriage - Rights and obligations relating to customary family assistance - Double deductions for contingencies - Grounds for reviewing assessment - Law Reform (Miscellaneous Provisions) Ordinance, 1962 s. 13 (d)[ccclxxiv]¹.

The basis of a claim by a widow in a Lord Campbell’s claim is the loss of economic or material advantages rather than her need for economic support or the monetary support which she might reasonably expect to have been provided by her husband had he lived.

Fernance v. Walker Bros. (1966), 84 W.N. (Pt. 2) (N.S.W.) 175, at p. 179; Taylor v. O’Connor, [1971] A.C. 115; and Shiels v. Cruikshank, [1953] 1 All E.R. 874 referred to.

The possibility or right of remarriage is not a “benefit or gratuity in cash or in kind received as the result of the death” of a deceased within the meaning of those words as used in s. 13 (d) of the Law Reform (Miscellaneous Provisions) Ordinance 1962.

(Per Minogue C.J.). In assessing damages in a Lord Campbell’s action—it is the degree of a wife’s dependence had her husband lived and the monetary value of that dependence which she has lost that the Court has to consider—not the manner of life she chooses or is perhaps forced to adopt on being deprived of his support.

The question to be asked is—if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have supplied out of his income to the maintenance of his wife and family.

Test enunciated in Nance v. British Columbia Electric Railway Co. Ltd. [1951] A.C. 601, at p. 614 adopted.

H. and W. married on 6th December, 1969. H. died on 20th May, 1970, aged 23 years. W. was then 19 years. A child was born in September 1970. H. was a motor mechanic employed by the Administration, had completed an apprenticeship in that trade and was earning $40.00 per fortnight. Within two years of his death H. would have been a foreman earning approximately $90.00 per fortnight. W. had received an education to form 3 standard and prior to her marriage was a telephonist. At the time of death both H. and W. were residing in Alotau in a house provided by the Administration, it was found by the trial judge that they had moved from their village environment and had adjusted apparently successfully to the European style of living. At the time of hearing W. and the child had returned to live a village subsistence life with her family. The trial judge assessed damages at $10,000.00 of which $7,250.00 was apportioned to W. (plaintiff wife) and $2,750.00 to the child. On appeal against the assessment of damages:—

N1>(1) In so far as the trial judge took into account the plaintiff’s prospects of remarriage, prospects of further children had the father not died, and the customary family assistance which may have been provided by the deceased within the family group, such matters were contingencies which might properly be taken into account in determining what amounts may have been available to the wife had her husband not died.

N1>(2) In so far as the trial judge may have taken into account the ability and right of the wife to rely on customary family assistance and the choice she had made to return to live with her family, such matters were not contingencies which ought not to be taken into account in assessing damages.

N1>(3) In so far as the trial judge had in assessing damages made double deductions from his assessment of damages in relation to some of the contingencies which might properly be taken into consideration, the assessment of $10,000.00 amounted to a “wholly erroneous estimate” of the damage suffered and a sum of $14,000.00 ought to be substituted.

The plaintiff (appellant) sued the defendant (respondent) for damages pursuant to Pt. IV of the Law Reform (Miscellaneous Provisions) Ordinance 1962 on behalf of herself and an infant son, in respect of the death of her husband. Liability was admitted by the defendant and the trial proceeded on the issue of the quantum of damages only. Damages were awarded in the sum of $10,000.00 of which $7,250.00 was apportioned to the plaintiff and $2,750.00 to the child. The plaintiff appealed against this assessment of damages. Further facts appear in the reasons for judgment hereunder.

MINOGUE CJ: In an action under the Law Reform (Miscellaneous Provisions) Ordinance 1962 the learned trial judge in May 1973 made an award of $10,000 in favour of the appellant and her child in respect of the death of her husband in May 1970. The appellant appeals against that award on a number of grounds and asks the Full Court to increase the amount to $16,000.

I have had the opportunity of reading the draft reasons for judgment prepared by Prentice J. and Williams J. I agree with them that this appeal should be allowed and with Williams J. that a judgment for $12,000 should be substituted for that for $10,000.

To deal shortly with the grounds of appeal I am of opinion that the learned trial judge was not wrong in law in taking into account the freedom of the appellant to remarry in assessing damages for her dependency, and I agree generally with what my brothers have said in this regard. Likewise I am of opinion that his Honour was entitled to take into account the possibility of claims upon the deceased man for financial support or assistance, by further children to be born and by members of his extended family.

On one view of the learned trial judge’s reasons it does appear that he may have allowed for at least some contingencies in arriving at the dependency of the appellant and her son at $35.00 per fortnight and may have taken into account those contingencies in arriving at his final assessment. But I am not satisfied that that is what his Honour did nor that this ground of appeal has been made out.

However, it is clear that the learned trial judge in arriving at his award did take into account what he described as the appellant’s freedom to live where she wishes and this freedom was coupled in his consideration with her ability to rely on access to means of support and on customary obligations entitling her to support in her own village. I would readily assume that she has that ability and that those obligations exist but in my opinion they are not matters proper to be taken into account or to be given weight in a Lord Campbell’s Act claim, and in so doing I think his Honour acted on a wrong principle of law. Her freedom of choice and the obligations owing to her are in my view analogous to the capacity to earn dealt with by the High Court in Carroll v. Purcell[ccclxxv]². All are something inherent in the wife and bear no necessary relation to her dependence on her husband. It is the degree of her dependence had he lived and the monetary value of that dependence which she has lost that the court has to consider—not the manner of life she chooses or is perhaps forced to adopt on being deprived of his support.

In the light of my conclusion I consider that this appellate court can examine the matter afresh. This case is particularly difficult as the appellant and her husband had hardly time to settle down into what might be called a pattern of married life before the husband was killed. The marriage had lasted just over five months and the court is called upon to try to estimate what would have happened over the ensuring thirty-five to forty years. This is par excellence a case to use the words of Menzies J. in Jones v. Schiffmann[ccclxxvi]³ where: “The assessment of damages, whether by a judge or a jury, does sometimes, of necessity, involve what is guess-work rather than estimation.”

I cannot altogether agree with the learned trial judge in his strictures on looking at the case as similar to that of a suburban housewife in an Australian environment. For myself I have observed many indications of what I would consider to be imitations of Australian suburban type of living albeit with the added factor of living in a communal society. None the less I find it a formidable task indeed to predict the type of urban or for that matter village living which will emerge in this rapidly changing society in the next thirty to forty years. There is certainly a general awareness of the necessity for a higher standard of living and in my judgment a determination to achieve such a standard. I cannot see any diminution in the indigenous wage structure and I would think it inevitable that wages will continue to rise—certainly not for a long time to come to anywhere near the Australian levels but still, with the development of unionization and the growth of material needs demanding fulfilment, rise in my view it must.

What then is the monetary value of the dependence of the appellant and her son? At the date of the husband’s death he was twenty-three years of age and the appellant was nineteen. The child was born in September 1970. From life expectancy tables which were submitted to the court it appears that the expectancy for a male aged twenty-five was 38.17 years and for a female aged twenty, 42.96 years. From the evidence I would conclude that as at the date of hearing in May 1973 there was a demonstrable loss of approximately $2,000. By that date the deceased man would have been a senior artisan earning approximately $70 per fortnight. I see no reason to disagree with the proposition that he would by late 1973 or 1974 be a foreman artisan earning between $70 and $80 per fortnight and that on the present wage structure he would have risen in three or four years to $90 per fortnight.

No argument was directed against the finding of the learned trial judge that an apportionment of $2,750 should be made in respect of the child of the marriage and I would not vary that amount. I would estimate that of the loss of $2,000 already accrued somewhere about $500 would by now have been expended by the appellant for the child’s maintenance had her husband lived leaving a loss to the appellant of $1,500. So that in the award to be made a figure of $4,250 is to be included. This leaves the wife’s future situation to be considered.

The question to be asked in my view is the same as that formulated in Nance v. British Columbia Electric Railway Co. Ltd. [ccclxxvii]⁴, namely: “if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family?” As was said by their Lordships in that case a proper approach to the question is one which takes into account and gives due weight to factors which they set out and relating to which they observed that the evaluation of some, indeed most, of these factors could at best be but roughly calculated. Those factors they enumerate in the following words at p. 615:

“it is necessary first to estimate what was the deceased man’s expectation of life if he had not been killed when he was; (let this be ‘x’ years) and next what sums during these x years he would probably have applied to the support of his wife. In fixing x, regard must be had not only to his age and bodily health, but to the possibility of a premature determination of his life by a later accident. In estimating future provision for his wife, the amounts he usually applied in this way before his death are obviously relevant, and often the best evidence available; though not conclusive, since if he had survived, his means might have expanded or shrunk, and his liberality might have grown or wilted . . . Supposing, by this method, an estimated annual sum of $y is arrived at as the sum which would have been applied for the benefit of the plaintiff for x more years, the sum to be awarded is not simply $y multiplied by x, because that sum is a sum spread over a period of years and must be discounted so as to arrive at its equivalent in the form of a lump sum payable at his death as damages . . . and a further allowance must be made for a possibility which might have been realized if he had not been killed but had embarked on his allotted span of x years, namely, the possibility that the wife might have died before he did. And there is a further possibility to be allowed for—though in most cases it is incapable of evaluation—namely, the possibility that, in the events which have actually happened, the widow might remarry, . . .”

To these factors I would add in the circumstances of this case the possibility of future children and of calls upon the deceased man’s bounty by members of his extended family.

In addition in my opinion although the appellant has remained unmarried for three years considerable weight must be given to the learned trial judge’s finding that her prospects of remarriage are good. Doing the best I can with this estimation which has to contain so much guess-work I would award the appellant $12,000, which includes the amount of $2,750 in respect of the child. Of this latter amount I consider that $500 should be allotted to the appellant as it would have been paid to her for the child’s support had her husband lived and it is reasonable to assume that she herself has supported him up to the date of trial out of her own resources.

My brothers agree that the order of the court should be: appeal allowed and judgment of the court below varied by:

N2>(a) substituting for the judgment for the plaintiff for $10,000 judgment for $12,000;

N2>(b) apportion to the child of the marriage of the appellant and her husband the sum of $2,750 and to the appellant for her own use the sum of $9,250;

N2>(c) order that of the aforesaid sum of $2,750 the sum of $2,250 be paid to the Registrar to be invested on behalf of the child, Dennis Gugi, who was born on the 25th day of September, 1970, and unless otherwise ordered in the meantime the said sum of $2,250 and the interest thereon or the investments representing the sum be paid out to the said Dennis Gugi on his attaining the age of twenty-one years and that the sum of $500 be paid to the appellant.

PRENTICE J: The Court in this appeal, is required to consider the adequacy of an award of damages made in favour of the appellant, on her own and her child’s behalf, under the Law Reform (Miscellaneous Provisions) Ordinance 1962, in respect of the death through the defendant’s negligence of her husband.

Mr. Lalor for the appellant has firstly submitted that his Honour has fallen into error by reducing the amount of damages to the widow because of the factor that her village background, with its right to subsistence activities, prevented her from being left without support. Secondly, he says, that such a right if a relevant consideration, should have been proved by appropriate evidence.

I may interpolate here that in my view, if the matter were relevant, his Honour would have been entitled, to have had regard to the plaintiff’s village subsistence rights, as rights notoriously inherent to all non-aberrant individuals in native society—without recourse to strict evidence given under the Native Customs (Recognition) Ordinance; more particularly once it was shown as it was here, that the plaintiff had reassumed life in the village in apparent reliance on such a right.

Walsh J.A. as he then was, in Fernance v. Walker Bros.[ccclxxviii]⁵ stated: “In an action under the Compensation to Relatives Act,” (the New South Wales equivalent of the P.N.G. Law Reform Ordinance 1969) “the plaintiff is entitled to receive a verdict commensurate with the whole of the loss resulting from the death, which may include factors which are unrelated to earnings as an employee and may also include factors not really related to the concept of support, if that is understood as referring to the provisions of the means of livelihood. A wife who is herself possessed of ample means for her support may, nevertheless, suffer financial loss by the death of her husband, for which she may obtain damages under the Compensation to Relatives Act, because her husband has been providing to her, and may be expected to have gone on providing to her, out of his resources, not only the cost of her day-to-day living (thus relieving her of the need to use her own resources for that purpose), but also additional benefits such as the means for overseas travel or for the pursuit of expensive recreations or artistic interests.”

The general principle is stated in Davies v. Powell Duffryn Associated Collieries Ltd.[ccclxxix]⁶ that “. . . except where there is express statutory direction to the contrary, the damages to be awarded to a dependant of a deceased person under the Fatal Accidents Acts must take into account any pecuniary benefit accruing to that dependant in consequence of the death of the deceased.” Lord Reid has stated in Taylor v. O’Connor[ccclxxx]⁷ that: “The damages for the loss of dependency ought to be such that she will have available to spend each year, free of tax, a sum equal to the amount of the dependency.” In the trial judge’s reasons for judgment the following expressions occur.

“I should remark on the fact that this case was presented by the parties as if the plaintiff were a suburban housewife anywhere in England or Australia. As presented, the factors relevant to the assessment, the weight to be given to each and the method of calculation to be adopted are all to be found in English cases to some of which I was referred.

I do not suggest that the principles to be found in those cases are not applicable and I am aware that those cases have been referred to in a number of earlier judgments in this Court. Also I note that here the parties were able to produce some useful estimates of life expectancies based on local experience. The fact remains that if I approach the present problem in the way I am invited to the result will be a scaled down and pale imitation of what would happen if a young married Australian mechanic were killed in Sydney. Yet the living conditions and social obligations and values of the two families are so demonstrably different as to suggest most strongly that such a result would be wrong.

Her husband’s death may have totally deprived her of the means to live in the urban society in which she was living at his death, but she is able to rely on access to means of support or customary obligations entitling her to support in her own village. How should this bear on the assessment? If it were given full weight, that is if the problem were approached on the basis that a comfortable living in a cash economy had been exchanged for a comfortable living in a subsistence economy, the result would almost certainly be unreal, since the plaintiff would be tied to a village existence—a most unlikely contingency if the deceased had lived. If however it is given no weight, the plaintiff may receive a sum which might greatly exceed even the most generous assessment of her loss.

I cannot think that these considerations have no bearing on the present problem.”

His Honour also went on to point out that her right to live and support herself as a member of her own social and ethnic group is a right which attaches by reason of her birth.

I am not confident that I fully appreciate the thought processes of his Honour through these stages of his judgment. If, as it would seem to appear, he was purporting to make a reduction in the damages because of the availability of a village subsistence economy to which the plaintiff might by right, and did in fact, have recourse—then I consider his Honour to have erred; for if the possibility of such recourse were considered a benefit it was already subsisting and could not be said to have accrued in consequence of the death of the deceased. If the evidence establishes as I think it does, the probability that the plaintiff and the deceased would have continued to live in an urban wage economy, then I apprehend the measure of economic loss to be tied to that fact. Her loss is the sum required, subject to any proper reduction for contingencies to replace the economic loss from that source, in the fashion adumbrated by Lord Reid as quoted above.

A scrutiny of his Honour’s judgment does not allow me certainty as to the extent to which this factor was brought into his calculations; but I understand him to have made some reduction on that account. It might be that different considerations would have applied if the evidence had established that the existence of such right to merge back into the subsistence economy, would probably have reduced the number of years during which the deceased would have worked as a mechanic, or maintained his wife the plaintiff, in an urban dwelling.

Mr. Lalor next contends his Honour erred in reducing the verdict moneys because of the plaintiff’s prospects of remarriage, which he the judge considered on sight of her, and with knowledge of her education and future finances, good. It appears plain that his Honour did make such a reduction though the fact of or extent of the reduction is not expressed. Counsel’s argument rests upon the interpretation of s. 13 of the Law Reform (Miscellaneous Provisions) Ordinance 1962, which is as follows:

“In assessing damages in an action under this Part, whether commenced before or after the passing of this Ordinance, there shall not be taken into account:

(a) any sum (including a return of premiums) paid or payable on the death of the deceased under a contract of assurance or insurance, whether made before or after the passing of this Ordinance;

(b) any sum paid or payable by way of social service benefit under an Act of the Commonwealth or of a State, or under an Ordinance;

(c) any sum (including a return of contributions) paid or payable out of a superannuation, provident or like fund, or by way of benefit from a friendly society, benefit society or trade union; or

(d) any benefit or gratuity in cash or in kind received as a result of the death by a person for whose benefit the action is brought.”

The right to remarry may be considered as a pecuniary benefit, he says, and should be excluded from consideration under s. 13 (d). That the right to remarry has pecuniary value and the manner of weighing marriage prospects pecuniarily against damages found, are established in the judgments of the High Court in Jones v. Schiffmann[ccclxxxi]⁸ and Carroll v. Purcell[ccclxxxii]⁹.

In McLean v. Carmichael[ccclxxxiii]¹⁰ Frost J. (as he then was) pointed out that the P.N.G. Ordinance followed the English legislation but went further with the provisions in s. 13 (d). He continued: “In my opinion, in effect s. 13 is the same as s. 7 of the Law Reform Act, 1936 of New Zealand which provided that ‘in assessing damages in any action under the Principal Act there shall not be taken into account any gain whether to the estate of the deceased person or to any person for whose benefit the action is brought, that is consequent on the death of the deceased person’. The Supreme Court (Ostler J.) held that the words ‘any gain . . . to any person for whose benefit the action is brought, that is consequent on the death of the deceased person’ were so wide and clear that it was impossible to hold that they could have any other than their literal meaning and must have been intended by the legislature to include any gain to the plaintiff from the deceased’s estate: Alley v. Buckland [1941] NZGazLawRp 56; [1941] N.Z.L.R. 575. I consider that the Territory provision has the same meaning . . .” Nevertheless, in that portion of his judgment excised from the version appearing in the Reports, Frost J. (see pp. 18 and 19 of “Unreported” Judgment No. 582) went on to regard prospect of remarriage as a real factor in that case for which allowance was to be made. It appears likely that the argument addressed to this Court to the effect that prospects of remarriage are a (financial) “benefit”, was not advanced before his Honour in McLean’s case[ccclxxxiv]¹¹ (supra) (nor does it appear that such an argument was submitted before the trial judge in this case). It is to be noted that in the United Kingdom by s. 4 of the Law Reform (Miscellaneous Provisions) Act 1971 it is provided that “No account shall be taken of remarriage or prospects of remarriage.”

The New Zealand case cited by Frost S.P.J. was concerned with the question of whether capital or income received by the widow of the deceased was “a gain consequent upon the deceased’s death within the meaning of s. 7 of the New Zealand Law Reform Act of 1936. Ostler J. found that the word ‘gain’ where appearing in s. 7 (II) of that Act was wide enough to include every kind of property (my emphasis) which a dependant receives from the estate of the deceased person either under a will or upon his intestacy.” The matter of right to remarriage does not appear to have been in the contemplation of the judge as a possible gain in property or a profit.

That New Zealand section was replaced in 1952 by the Deaths by Accidents Compensation Act, s. 7 (2) whereof provided that “In awarding damages in any such action the court shall not take into account any gain, whether to the estate of the deceased person or to any dependant, that is consequent upon the death of the deceased person.” Nevertheless, in Petersen v. Claney[ccclxxxv]¹² Moller J., seized of a claim by the widow of a deceased person who had remarried before the trial, found it necessary to consider how the actual fact of remarriage was to affect the award of damages. It does not appear to have been argued that the possibility of remarriage, or actual remarriage, was a “gain” that could not by reason of s. 7 (2), be put in the reckoning as a reducing factor. His Honour stated as the “basic proposition” that “although strictly the assessment of compensation under the Deaths by Accidents Compensation Act should be estimated as at the time of the death which is the foundation of the claim so that the likelihood of the widow’s remarriage must then be a matter of speculation, the Court is fully entitled to take into account a remarriage before the hearing of the action, because it is then unnecessary to speculate upon whether or not the widow will remarry and, if so, when; in such a case prospective damage (or diminution of damage) has become actual.”

The term used in the New Zealand statute “any gain” seems to me very much wider than the phrase “any benefit or gratuity in cash or in kind” appearing in the Papua New Guinea Ordinance. In attempting to construe the meaning and application of paragraph (d) of s. 13 the court is traditionally not entitled to look at the marginal note which in the form “exclusion of payments by insurers in assessment of damages,” might otherwise have been thought to have been helpful here. One must look at the section as a whole and may perhaps gain some assistance from the collocation of phrases in the section—all containing some synonym for money. Though the phrase “in cash or kind” comes readily to one’s tongue, I have not been able to find any judicial interpretation of the phrase “in cash or in kind”; nor am I able to recall any other legislative use of the phrase. The word “cash” is usually intended to mean ready money or sometimes, in wills, money without any implication of readiness. It is usually a stricter term than “money” (Jarman on Wills, 8th Ed. 1286). “In kind” is denoted in the Oxford English Dictionary as meaning “in gifts or natural produce”; in association with the word “repayment” as meaning “not in money” or “in something of the same kind”. It can relate to the Latin “in genere” or “in specie”. In connection with the payment of dues the phrase seems to have meant natural produce (Stroud, Words and Phrases, 3rd Ed.).

I am of the view that to regard the right to remarry, as a “benefit or gratuity in cash” would entail a straining of language. Reading the added words “or in kind” in the most ample way without unnatural strain of language, might produce the alternative of “a benefit or gratuity in some tangible property or something of the same kind as money”. Again to my mind it would be an unnatural bending of words to include the right to remarry or an evaluation of that right as coming within such a notion.

The Justices of the High Court have used phrases correlating a right to remarry with value in terms of money. In Jones v. Schiffmann[ccclxxxvi]¹³ Barwick C.J. stated “In the case of the widowed plaintiff, the capacity to remarry is of value . . . The question, I think, is what is the value to this widowed plaintiff of her freedom to remarry”; and Walsh J. at p. 316 “Whether or not there is positive evidence of facts rendering a remarriage likely, an evaluation must be made of the worth to the plaintiff of the capacity to remarry which has been acquired in consequence of her husband’s death. An estimate must be made . . .” In Carroll v. Purcell[ccclxxxvii]¹⁴ the majority of the court stated: “This” (the revived capacity to remarry) “for what it is worth in any particular case, has so long been regarded as having some value in the assessment of damages in fatal accident cases that it is profitless to debate how far the established rule is justified.” McTiernan J. at pp. 84-5 saw the possibility of remarriage as relevant not on the basis that it might be for her pecuniary advantage but (his Honour adopting Kinsella J.’s words) “on the same footing as evidence of ill-health and short expectation of life of a plaintiff is admissible—that it is relevant to the span of time for which she is left without the financial contribution of the husband.”

I am of the opinion that though in appropriate cases, courts must make efforts to quantify in terms of financial benefit, perhaps more strictly in terms of abatement of potential financial loss, a possibility of remarriage; such a possibility or right is not a “benefit or gratuity in cash or in kind received as a result of the death” of the deceased. I therefore conclude that his Honour made no error in taking such a likelihood into account, as he clearly did.

It was urged under grounds of appeal (d) and (e) that his Honour however misdirected himself in taking into account the possible claims of other children competing against the wife’s right to maintenance and the possibility of the claims of the extended family reducing the slice of the cake, or cut from the baramundi (if I may adopt such a phrase in relation to the husband’s wages) available for her consumption—there being no evidence directed towards either point. I think it suffices to say that these are matters which the court in attempting to apply “foreign” law to Papua New Guinea society was entitled to and required to consider in the light of its experience of matters notorious in the community—a consideration of course to be undertaken in the setting of the evidence actually given. I am of the opinion that his Honour made no error in this regard.

The principal objection which Mr. Lalor urges against the verdict consists of a submission that there has been a doubling up of deductions for contingencies. The fact that his Honour first assessed the fortnightly loss at $35 instead of a larger sum and then, at any rate in the result, multiplied the annual sum of such fortnightly loss by a number less than the years of life expectancy, amounts it is said to an unwarranted double discounting for the same contingencies.

It is clear that his Honour regarded the figure of $45 a fortnight as too high a figure to represent what the plaintiff would have received on an average from the deceased’s wages over a period of years, for her own and the child’s maintenance. Though the evidence establishes firstly that at the time of his death he was giving half and more, of his wages, to her from a wage of $40 per fortnight; and it appeared unchallenged that he would by the time of the trial have been a foreman earning at the rate of approximately $80 per fortnight and would have thereafter in two years have reached a wage on the present levels of approximately $90 per fortnight. His Honour’s expressed reason for choosing $35 per fortnight as a starting point of fortnightly average loss, was that the figure of $45 (to which he clearly would in all probability have shortly risen) paid “no regard to any of the contingencies”. His Honour chose the figure of $14,000 to represent the present value of forty years’ earnings at $35 per fortnight calculated on 6 per cent tables. He then purported to “consider the imponderables” . . . mentioning some, and proceeded—”Then I take into account the matters I have discussed earlier in these reasons and the other matters raised by counsel to which I have not expressly referred.” His Honour reduced the 14,000 figure to 10,000. A reference to the tables published in Vol. 40 A.L.J. at p. 243 makes it clear that the effect of his Honour’s reduction from $14,000 to $10,000 was the equivalent of allowing close to twenty years working-life expectancy instead of forty years at the figure of $35 approximately per fortnight. If one considers in these tables the figure of approximately $18,000 as representing approximately $45 per fortnight for forty years, the reduction to $10,000 would substitute a figure equivalent to ten years working-life expectancy for forty years.

I am satisfied that in his Honour’s computations there has been an element of overlapping of the factors calling for reductions—that some of the contingencies and imponderables have been twice used as subtractors. I am also satisfied that at least one factor, that of the availability of a subsistence-farming environment, has been wrongly brought into the scale. For myself I should have thought, having regard to the proven facts and the probability of wage increases in the nature of things, that $45 per fortnight was the more appropriate starting figure of expected average loss to the plaintiff. And that the process of either selecting a lower multiplier than the forty years life expectancy shown, should then have been gone through as a means of discounting for all contingencies once and for all; or alternatively that the present value sum of $45 per fortnight for forty years should have been discounted once and for all in regard to all such contingencies.

For the reasons that I have advanced I am of the view that his Honour wrongly directed himself and I am satisfied that the result a verdict of $10,000, amounts to a “wholly erroneous estimate” of the damage suffered (Davies v. Powell Duffryn [ccclxxxviii]¹⁵).

Bearing in mind the possibility of remarriage which his Honour appeared to regard as considerable, and all the other contingencies, I would find the figure of $14,000 as representing a suitable verdict in all the circumstances.

The other members of the court propose to substitute a verdict of $12,000 as representing the correct amount of damages. I would concur in the apportionment of those damages as between the appellant and her son proposed by them.

WILLIAMS J: The appellant sued the respondent for damages arising from the death of her husband. Her proceedings were brought under the provisions of Pt. IV of the Law Reform (Miscellaneous Provisions) Ordinance 1962 on behalf of herself and an infant son of her marriage. Liability was admitted by the defendant and the trial proceeded on the issue of the quantum of damages only.

The learned trial judge awarded damages in the sum of $10,000.00. Of this sum $7,250.00 was apportioned to the plaintiff (appellant) and $2,750.00 to her son.

She appeals to this Court asserting that the learned trial judge erred in several respects when assessing damages and that damages should have been assessed in the total sum of $16,000.00.

The first ground of appeal is that the trial judge erred in law in holding that the application of principles determined by precedent in assessing pecuniary loss would produce a wrong result. It may be convenient to couple this ground of appeal with another, namely that the trial judge was wrong in law in taking into account the freedom of the appellant to live where she wishes in assessing damages for her pecuniary loss. These two grounds of appeal appear, at least to some extent, to overlap.

It emerged from the evidence that the appellant and the deceased married on 6th December, 1969. At the time of her husband’s death on 20th May, 1970, the appellant was aged nineteen years and the deceased twenty-three years. He was a motor mechanic employed by the Administration of Papua New Guinea and had completed an apprenticeship in that trade. The appellant received education to form 3 standard at Kerevat High School and prior to her marriage was a telephonist.

At the time of his death the deceased and the appellant were residing in Alotau in a house provided by the Administration. It was found by the learned trial judge that they had both moved from their village environment and had adjusted, apparently successfully, to urban life and ways.

The two grounds of appeal which I have quoted appear to arise from some observations made by the trial judge in his reasons for judgment and I would continue the passage already cited by Prentice J.:

“A person such as the deceased was no doubt under a very real obligation to assist in the support of relatives who sought his help, the extent of the obligation varying perhaps with the remoteness of the relationship. What prospect was there that the plaintiff who for the short period of the marriage was the sole object of her husband’s bounty might have become merely one of a number of people, other than her own children, dependent on him?

Similar considerations arise in respect of lifelong customary obligations owing to the plaintiff.

The plaintiff and her child have returned to live with her family in her village 30 miles from Buin in the south of Bougainville. She has not re-engaged in remunerative employment. She lives as her family does on traditional garden produce, fish and a supplement of purchased foods such as meat and rice. In many ways, she and her son are as secure as she was when living in Alotau and to live in this way would cost only a fraction of the cost of her support in Alotau. Her present intention is to stay in her village; but she preferred the comparative sophistication of the town to the simple living of the village.

I cannot think that these considerations have no bearing on the present problem. Just as the freedom of a widow to remarry is to be taken into account so also should be her freedom to live where she wishes. This may have no real significance where the widow has always lived in a sophisticated urban area and could be expected to continue to do so; but where the choice is between a traditional village life and a much more costly urban life it becomes a relevant factor. In the present case I put it no higher than to say that there may be periods during which the plaintiff will choose to live as she is now. As I have previously said, it would be wrong so to reduce her award that she would be compelled to do so permanently.

Similarly, I think it is proper to take into account that the pecuniary benefits which the plaintiff received from her husband were more likely to be reduced by competing claims not only of further children of the marriage but of members of the extended family than would the benefits ordinarily obtained by her expatriate counterpart.”

As I understand these observations the trial judge firstly was adverting to the situation of the appellant compared with that of a young widow residing in an Australian city and to the difference in the living conditions and social obligations applicable to the persons concerned. These differences were such that to assess the appellant’s damages simply upon the conventional principles laid down in the English and Australian case law on the subject without taking into account matters of local significance which had no counterpart in English or Australian society might produce an erroneous result.

It appears that, in making these observations, the trial judge had in mind several matters. Firstly he adverted to obligations which may have been imposed on the deceased had he lived, in the form of monetary or other assistance to members of his family other than his wife and child. No doubt his Honour was referring to the custom prevailing in many parts of this country whereby a person is under obligation to provide assistance to members of his family, the family in this context extending to far more remote relationships than would be the case in Australia or England. The deceased was a man who held, at least by local standards, a good position, with a fairly substantial rate of remuneration. It also appears that his prospects of advancement, bringing with it higher remuneration, were good. In these circumstances the trial judge apparently considered that there may well be calls on the financial resources of the deceased by members of his family in the extended sense to which I have referred with a resulting diminution in the amount of money available to the appellant and the child of the marriage.

The second matter adverted to in the observations quoted earlier was that, upon the death of her husband, the appellant and her child returned to her village on Bougainville Island and have continued to reside there with her family. There they live on traditional food produced from the land and sea, supplemented by some purchased foods. She has accordingly, at least up to the time of the trial, left the European style of living which she shared with her husband and returned to village life. As his Honour observed this would result in a substantial decrease in the cost of maintenance of herself and her child.

Counsel for the appellant contended that the matters to which I have referred were irrelevant when considering the award to which the appellant is entitled. It is said that they cannot be brought within the established legal principles relating to the assessment of damages in cases of this nature and that in any event as to the matter of the obligation of the deceased to his family, there was no evidence to support the finding.

By s. 12 (1) of the Law Reform (Miscellaneous Provisions) Ordinance it is provided that the court may award such damages as it thinks proportioned to the injury resulting from the death to the parties respectively for whom and for whose benefit the action is brought. The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value and in assessing the damages all circumstances which may be legitimately pleaded in diminution of the damages must be considered (per Lord Wright, Davies & Anor. and Powell Duffryn Associated Collieries Ltd.[ccclxxxix]¹⁶).

The learned trial judge made some deduction, which was not quantified, on the basis that the money made available by the deceased to the appellant may have been reduced by reason of calls made upon him by members of his family. It is objected that there was no evidence to base a finding of this nature. However, it involves a matter very well known in this country, so well known indeed as to be notorious. A judge of this Court in the course of his work sees many instances of the custom of the local people whereby as a matter of obligation assistance is provided within the family group. In all the circumtances I think it is a matter with respect to which judicial notice might properly be taken. I also think that it is a contingency which may be properly taken into account in determining what amounts may have been available to the appellant in the future had her husband not died.

I turn now to the other question arising under the grounds of appeal presently under consideration. As I appreciate his Honour’s reasons he made a deduction from the damages assessed on the footing that by returning to a village subsistence way of life she had to some appreciable extent, while she chose to follow that way of life, reduced her need for monetary subsistence. However, it seems to me that the basis of a claim by a widow in an action of this nature is the loss of economic or material advantages rather than her need for economic support. That this is so is, I think, illustrated by the words of Walsh J.A. (as he then was) in Fernance v. Walker Bros.[cccxc]¹⁷ already quoted by Prentice J.

In this connection reference might also be made to Taylor v. O’Connor (supra)[cccxci]¹⁸ and Shiels v. Cruikshank [cccxcii]¹⁹.

It appears to me that the fact that the appellant has, at least for the time being, chosen to return to village life and thereby substantially decreased her dependence upon a monetary economy, is not a relevant factor to be taken into account in assessing her entitlement. The real basis of her entitlement is, I think, the monetary support which she might reasonably expect to have been provided by her husband had he lived.

Another point raised on behalf of the appellant is that the learned trial judge made some allowance for the possibility that had the deceased lived there may have been further children of the marriage the support of whom would have decreased the amount of support available to the appellant. I did not understand this contention to be that such a possibility, as a matter of principle, was not one that could properly be taken into account. Rather the argument was that there was no evidence that the appellant and her husband intended to have further children. To my mind the absence of such evidence is immaterial. The matter involves a contingency to be taken into account and, in my view, is in no different category than the contingency of unintended premature death or incapacity.

Another ground of appeal raised on the behalf of the appellant is that the learned trial judge took into account when fixing the amount of his award the prospect of the appellant’s remarriage. That such an allowance is properly to be taken into account under the law as it exists in other places is beyond question; but it is said that under the law of this country a court is precluded from taking the matter into account. Reliance is placed upon s. 13 (d) of the Law Reform (Miscellaneous Provisions) Ordinance, 1962.

The researches of counsel did not reveal any source from which s. 13 (d) may have been drawn. The nearest equivalent appears to be s. 7 of the Law Reform Act 1939 of New Zealand, which is set out and discussed in Alley v. Alfred Buckland & Sons Ltd. and Another [cccxciii]²⁰. In that case the court was concerned with the question of whether bequests to a wife and claimant children under the will of the deceased should be excluded from consideration when assessing damages under the then New Zealand statute. I do not think that the case provides any assistance in the resolution of the present problem. Reference was also made in the course of argument to the case McLean v. Carmichael [cccxciv]²¹. It does not appear, however, that the point presently in issue was argued or considered in that case.

The capacity of a widow to remarry has long been a factor to be taken into account when assessing damages in cases of this nature. It was said in the joint judgment of Dixon C.J., Kitto, Talylor and Windeyer JJ. in Carroll v. Purcell [cccxcv]²²:

“The death of one spouse inevitably results in a revived capacity to remarry. This for what it is worth in any particular case has so long been regarded as having some value in the assessment of damages in fatal accident cases that it is profitless to debate how far the established rule is justified.”

The argument in this case is that the words of s. 13 (d) of the Ordinance are sufficiently wide to require the exclusion of consideration of a widow’s prospect of remarriage. It appears that recent English legislation provides that a widow’s prospect of remarriage is to be excluded from consideration and it is said that the Papua New Guinea legislature acted in advance of English legislature in this respect. It should be said that the English legislation has dealt with the matter by express words.

The nature of a capacity to remarry was considered by the High Court of Australia in Jones v. Schiffmann [cccxcvi]²³. In addition to the passages already cited I would add the following:

“Against this must be put the likelihood of a future husband who may or may not be as reliable a source of financial support bearing in mind that the plaintiff expressed an intention of not remarrying at the trial and that she is no longer able to bear children” (per McTiernan J. at p. 308).

“There is, I think, no way of calculating the extent to which the damages recoverable by a widow in a Lord Campbell’s Act claim should be affected by her prospects of marrying again. That such prospects are to be taken into account is beyond question: Carroll v. Purcell. The extent to which the prospects of a particular widow marrying again will reduce the damages recoverable by her is not, however, a matter which can be governed by rules, even by imprecise rules. It is a matter for the judgment of the assessor in the circumstances of the particular case . . . It cannot be said however that on the mercenary level of economic advantage, a second husband is hardly worth having. Some unquestionably are. It is not difficult to imagine a case where a widow could reasonably recover but small damages when the death of a former ‘bread-winner’—to use an opprobrious description—has been quickly followed by a marriage to a man, who, from his wealth can provide much more than bread” (per Menzies J. at p. 308).

It is contended for the appellant that the capacity of a widow to remarry is something of value to her which is acquired by her as a result of the death of her spouse and as such is within the broad generality of the words “any benefit or gratuity in cash or in kind received as a result of the death of the person for whose benefit the action is brought” appearing in s. 13 (d) of the Ordinance.

It is to be noticed that sub-ss. (a), (b) and (c) of s. 13 all dealt with cash payments paid or payable by way of insurance, social services benefits or superannuation. To these a further kind of benefit is added by sub-s. (d). If the draftsman intended that sub-s. (d) include the value of a widow’s freedom to remarry then it seems to me that he could have used words far more apt for this purpose. In my view to construe the words “any benefit or gratuity in cash or in kind received as a result of the death” so as to include the value of the widow’s freedom to remarry involves placing an undue strain on the natural meaning of those words. It appears that the freedom of a widow to remarry has always been regarded as something in the nature of a contingency to be taken into account in diminution of damages in the same way as other contingencies like the possible premature demise of the deceased from causes other than that which gave rise to the widow’s claim. I am unable to characterize contingencies of this nature as “a benefit or gratuity in cash or kind received”. I think s. 13 (d) was intended to cover things of the nature of bequests, legacies and gifts.

In consequence it is my view it was proper for the trial judge to make some allowance for the possibility of remarriage of the appellant in diminution of her award. It might be observed in passing that the contrary was not contended before the learned trial judge. It should also be noted that the trial judge described the appellant as “young, personable and attractive” and considered her prospect of remarriage as being good.

A further argument raised on behalf of the appellant was that the trial judge erred in that, in effect, he made a double deduction from his award in relation to some of the contingencies. [His Honour reviewed the evidence and the trial judge’s findings and continued:] It therefore appears that there has been some duplication in allowances made for contingencies.

To sum the matter up it seems to me that with all respect to the learned trial judge he made a deduction which he was not entitled to make, namely that in relation to her election to return, at least for the time being, to a village way of life. It also appears to me from his reasons as expressed that some duplication in allowance for contingencies was made. In these circumstances I think that his award was too low, that it is open for this Court on appeal to substitute a higher amount.

It seems to me that, on the case presented, that the starting point lies as contended by counsel for the appellant in taking $18,000.00 as representing the present value of a loss of $45.00 per fortnight over a life expectancy of 40 years. From this sum of $18,000.00 allowance must be made for contingencies including the possibility of the premature death of the deceased, the possibility of impairment of his earning capacity through injury or ill health, the possibility of premature death of the appellant, or of the child, the possibility of the appellant’s remarriage, the possibility that the marriage which had subsisted for a few months only might not have proved a stable one, and the possibility that money available to the appellant may have been reduced by calls on the deceased’s resources by relatives or by further children of the marriage. He may have become more generous to his wife or on the other hand may have himself developed more expensive tastes and spent more on himself. Many of these matters are necessarily speculative but are, in my view, proper matters for consideration.

In all the circumstances I would substitute for the award made an award of $12,000.00 as representing a fair and reasonable assessment of the loss of the appellant and her child.

As to the apportionment of this sum no argument was addressed to the Court and I am content that the apportionment of an amount of $2,750.00 to the child stand.

N1>(a) substituting for the judgment for the Plaintiff for $10,000 judgment for $12,000;

N1>(b) apportion to the child of the marriage of the appellant and her husband the sum of $2,750 and to the appellant for her own use the sum of $9,250;

N1>(c) order that of the aforesaid sum of $2,750 the sum of $2,250 be paid to the Registrar to be invested on behalf of the child, Dennis Gugi, who was born on the 25th day of September 1970, and unless otherwise ordered in the meantime the said sum of $2,250 and the interest thereon or the investments representing the sum be paid out to the said Dennis Gugi on his attaining the age of 21 years and that the sum of $500 be paid to the appellant.

[ccclxxiv]Infra p. 349.

[ccclxxv](1961) 107 C.L.R. 73.

[ccclxxvi][1971] HCA 52; (1971) 124 C.L.R. 303, at p. 308.

[ccclxxvii] [1951] A.C. 601, at p. 614.

[ccclxxviii](1966) 84 W.N. (Pt. 2) (N.S.W.) 175, at p. 179.

[ccclxxix] [1942] A.C. 601, at p. 609.

[ccclxxx] [1971] A.C. 115, at pp. 128-9.

[ccclxxxi](1971) 124 C.L.R. 303.

[ccclxxxii][1961] HCA 81; (1961) 107 C.L.R. 73, at p. 79.

[ccclxxxiii][1969-70] P. &. N.G.L.R. 333, at p. 341.

[ccclxxxiv][1969-70] P. & N.G.L.R. 333.

[ccclxxxv][1970] N.Z.L.R. 69.