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Kua v State [1990] PGNC 106; [1990] PNGLR 565; N825 (19 March 1990)

N825

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KUMAN KUA

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen
Woods J

14 February 1990
19 March 1990

DAMAGES - Fatal accidents - Particular awards - Female bank employee - Claim by parents and infant child - Loss of salary earnings relevant - Need to provide home for child - K15 per week appropriate for child - K10 per week appropriate for each parent.

The deceased, a female bank clerk, was killed in a motor vehicle accident. A dependency claim was brought by the father of the deceased on behalf of himself, his wife and an infant child of the deceased all of whom were living with the deceased and benefited from her salary.

Held:

(1) K15 per week was an appropriate amount to allow for maintenance of the infant child until age 16 years without discount for contingencies.

(2) Taking into account the loss of portion of salary earned by the deceased and the need to provide a home for the infant child, K10 per week was an appropriate amount to allow for the claim of each parent with a 10 per cent reduction for contingencies.

Cases Cited

The following case is the only case cited in the judgment:

Keiri Temo v PNG (National Court, Brunton AJ, Judgment No N746, May 1989, unreported).

Action

This was the hearing of a claim for damages arising out of the death of the deceased in a motor vehicle accident.

Counsel:

P Kopunye, for the plaintiff.
M L Tilto, for the defendant.
Cur adv vult

19 March 1990

WOODS J.: The plaintiff is the father of one Theresa Kuman who was killed through the negligent driving of Sam Penias of a motor vehicle registered No ZGJ 219 on 23 May 1986. The plaintiff sues for and on behalf of the dependants and relatives of Theresa Kuman, thus he is suing on behalf of himself and Kondo Teine the parents of Theresa and on behalf of Emily Kuman, the daughter of the deceased who was born on 4 March 1986. This matter has come before me as an assessment on damages.

Certain facts are agreed. The father Kuman Kua was aged between 45 and 48 years as at 1986, the mother Kondo Teine was aged between 35 and 40 as at 1986, and the daughter Emily Kuman was born just some few months prior to her mother’s decease. At the time of her death, Theresa was employed with the Bank of South Pacific and following her death workers’ compensation was assessed and paid. As an employee of the Bank of South Pacific she was on an annual salary of K3,658 which was K76.21 per week. Her parents Kuman and Kondo were each partly dependent on the deceased and of course the young daughter would have been completely dependent on the deceased.

The value of this dependency is not just a village gardening subsistence dependency but it is the benefits from being dependent on a person who had a regular salary. Both the parents and the child would have benefited on the basis of a substantial portion of the salary earned by the deceased. Although it is very hard to say exactly how much of the K76 per week would have gone to the benefit of each of the dependants.

I note that in the case of Keiri Temo v PNG (National Court, Brunton AJ, Judgment No N746, May 1989, unreported) Brunton AJ considered the shares of the dependants of a salary earner when the deceased contributed with her husband towards the maintenance of the dependants. In that case his Honour referred specifically to a figure which it was submitted the Department of Finance used for such claims and he simply found these figures were quite improper reflections of the real economic conditions when one considered the cost of high school education. His Honour there allowed a figure of K10.71 per week for each child in the situation where the father was still living to support the children. I would therefore agree with counsel’s submission that K15 per week is an appropriate amount to allow for the infant in this case until she turns 16 years and I note here that she was aged only a few months at the time of her mother’s death.

For the parents it is not simply a matter of comparing what they would need to live in the village or to say that they can go back to living on a subsistence economy. They must be entitled to some consideration for the loss they have incurred and for the fact that they now have to provide the home for the child. I find that K10 each per week are quite reasonable amounts for what they are now missing out on and will miss out on.

For the father, he is aged between 45 and 48 years, I therefore allow for 23 years on the Van de KAA Tables of life expectancy. And on the same tables, as the mother is estimated at 35 to 40 years, I will allow 28 years for her.

The infant’s loss of K15 per week for 16 years capitalised at K665 comes to K9,975. I will not make any deduction for contingencies. The father’s loss of K10 per week for 23 years capitalised at K871 comes to K8,710. The mother’s loss of K10 per week for 28 years capitalised at K994 comes to K9,940. With respect to the father and mother I will allow a 10 per cent reduction for contingencies.

To summarise:

For Emily Kuman K9,975

Father: Kuman Kua K7,839

Mother: Kondo Teine K8,946

Judgment for K26,760

However, the plaintiffs have already received some compensation by virtue of the workers’ compensation award. Whilst an injured worker has alternatives to pursue claims under either the Workers’ Compensation Act (Ch No 179) or directly against the party liable to pay, the Act specifically provides that once an injured worker recovers against the Workers’ Compensation Act and then recovers under third party liability, he is required under the law to repay the equivalent amount recovered under the Workers’ Compensation Act and, of course, can keep the excess balance. Whilst the law makes no specific reference to compensations paid following death, I would interpret the law to mean that the same principles must apply as there can be no suggestion of double compensation.

As the infant received a substantially higher amount under the workers’ compensation award, the amount calculated above for her should be repaid completely to the insurance company. The father and mother only received K2,000 compensation each from the insurance company, so a total of K4,000 should be repaid to the Insurance Company and the balance awarded, in my judgment, should be paid to them.

Thus I order that out of the judgment of K26,760, a sum of K13,975 should be paid direct to Queensland Insurance (PNG) Ltd, and out of the balance the sum of K5,839 be paid to the father Kuman Kua and K6,946 be paid to the mother Kondo Kuman Teine.

Judgment accordingly

_________________

Lawyer for the plaintiff: P Kopunye.
Lawyer for the defendant: State Solicitor.