Kali v Kaltang [2005] VUSC 17; Civil Case 191 of 2004 (31 March 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 191 of 2004

BETWEEN:

PLAS & NELLIE KALI
Claimants

AND:

JOEL KALTANG
Defendant

Coram: Justice Treston

Mrs. Nari for Claimant
No Appearance of Defendant

Date of Hearing: 9 March 2005
Date of Decision: 31 March 2005

RESERVED DECISION ON
QUANTUM OF CLAIM

CLAIM

In a Supreme Court claim filed in October 2004, the Claimants claimed against the Defendant in relation to the death of their 10 year old son, a school boy, who was killed by a bus driven by the Defendant as he crossed the Tebakor Road in Port Vila. The incident occurred on 12 October 2001 and on 18 February 2002, the Defendant pleaded guilty to a charge of unintentional harm causing death and was sentenced to 12 months imprisonment.

Over the years, the Defendant has offered to compensate the Claimants by custom settlement but that has never occurred and it has been necessary for the Claimants to issue these proceedings. The Defendant has not taken steps in the action despite having been served with the papers.

The claim is for VT6, 000, 000. In written submissions counsel for the Claimants accepts that that claim may be excessive and leaves the matter to the discretion of the Court.

Judgment for liability was entered against the Defendant by default on January 2005.

LAW

The question of compensation for death of the young children in road accidents has been considered in this jurisdiction in the cases of William & Bill vObed (1980 VLR at page 11) when child of nine was killed in a motor accident and VT185, 000 was awarded and Chief Justice Cooke considered that that would be the maximum amount he would award for cases under that heading for at least the next 10 years from then.

In Obwe & Taga v Thomas [1987] VUSC 9; [1980-1994] Van LR 293 Chief Justice Cooke awarded VT36,125 for the death of a 3 year old child in a motor accident. In that case the learned judge found that the child was 50% responsible for the incident.

There is no question in this case that any damages should be reduced for the contributory negligence of the deceased and it is clear from the criminal prosecution that the Defendant had been drinking and was operating a bus and carrying members of the public. His lordship Justice Coventry decided that drivers of buses had a special responsibility and that in this particular case there were elements of inattention.

Counsel has also referred the Court to older English decisions which talk about assessments of damages not being made on an actuarial basis but on the commonsense principle of a reasonable figure for the loss of prospective happiness.

No very recent decisions were placed in front of the Court and clearly the passage of time and inflation mean that an appropriate award must recognize that times have changed since the reported decisions were delivered.

It is my view that the appropriate award in general damages should be VT500, 000. The Claimants are entitled to the proven loss for burial expenses and custom ceremonies in the sum of VT181, 000.

JUDGMENT

Accordingly I find that the quantum of the claim is VT681, 000 and I enter judgment for the Claimants against the Defendant in that amount together with costs on the standard basis as agreed or as determined by the Court in due course.

I set an enforcement conference for 10 a.m. on 9 May 2005 which the Defendant must attend.

Dated AT PORT VILA, this 31^st day of March 2005

BY THE COURT

P. I. TRESTON
Judge