N973

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

INABARI AND ANOTHER

V

SAPAT

AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Wewak
Salika J

17 April 1991

DAMAGES - Fatal accidents - Measure of - Loss of expectations of life - Infant child - Conventional sum - Award of K1500.

DAMAGES - Fatal accidents - Measure of - Funeral expenses - Reasonable expenses - Includes reasonable customary obligations - Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 28(2).

The Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 28(2), provides:

"... damages may be awarded in respect of medical expenses incurred as a result of the injury causing the death, together with reasonable expenses of the funeral or cremation of the deceased person (including the cost of erecting a headstone or tombstone over the grave of the deceased person) if those expenses have been incurred by one or more of the parties for whose benefit the action is brought."

In an action under Pt 5 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297), by the father of an infant aged twenty-one months at death, a claim was made for funeral expenses including expenses to cover customary obligations.

Held

(1) Expenses envisaged by s 28 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) are reasonable funeral expenses or expenses reasonably expected to be incurred during a funeral and include reasonable expenses incurred in satisfying customary arrangements, obligations and ceremonies.

(2) Reasonable funeral expenses in the circumstances should be allowed at K2,406, which sum included outlays for, inter alia, clothes for the deceased, food for fourteen days after burial at K50 per day and motor vehicle hire for a period of seven days.

(3) Damages for loss of expectation of life should be assessed at K1,500.

Cases Cited

Hart v Griffiths-Jones [1948] 2 All ER 729.
Rokan Bayava v Minisang Wankiar and Lufa Local Government Council [1978] PNGLR 391.
Stanton v Ewart F Youlden, Ltd [1960] 1 All ER 429.
Vian Guatal v The Independent State of Papua New Guinea [1981] PNGLR 230.

Statement of Claim

These were proceedings in which the father of an infant claimed damages for loss of expectation of life, solatium and funeral expenses following the death of the child in hospital.

Counsel

Y Yagi, for the plaintiff.
J Puringi, for the defendant.

17 April 1991

SALIKA J: This matter was instituted by way of a writ of summons by Philip and Scholastica Inabari the plaintiffs against Graham Sapat, the first defendant and The Independent State of Papua New Guinea the second defendant.

The plaintiff brought this action pursuant to the provisions of s 25 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) on behalf of the estate of the deceased Mario Francis Inabari who was the plaintiffs child.

The first defendant was a qualified nurse at the Boram General Hospital employed by the second defendant. The second defendant owns, manages or operates the Boram General Hospital which provides specialist medical service, advices, care and attention to the public.

The brief facts of the case are that on 13 June 1989 at 1.00 am the plaintiffs one year and nine months old son Mario Francis Inabari fell ill. He was taken to the Boram General Hospital for treatment. There was a massive discharge of blood from the child’s anus. As a result the child was weak and in pain and distress when presented before the first defendant who was on duty.

After persistent pleas by the plaintiffs to have the child admitted to hospital for specialist care and attention the first defendant refused. He instead prescribed and supplied tablets to the plaintiffs to administer every six hours to the child. The plaintiffs left the Boram General Hospital with the child.

At 5.00 am of the same morning the child was brought back to the same hospital before the first defendant with the same aching signs and conditions. The child was placed on a table without any medical care, attendance, advice or treatment being given by the first defendant. The child died at 5.40 am.

The plaintiffs alleged negligence particulars of which were:

(a) the first defendant failed to administer any or any proper basic nursing procedures.

(b) the first defendant failed to observe or to heed or take any reasonable steps to investigate the complaints made on behalf of the deceased to his condition.

(c) the first defendant failed to observe or to act upon or to investigate properly or at all the obvious and serious deterioration in the condition of the deceased whilst under his care and attention.

(d) the first defendant failed to observe or heed or take any reasonable steps to consult, seek or refer the deceased for specialist medical advice care or attention.

(e) the first defendant failed to care, seek or take any reasonable steps to admit the deceased to the hospital in the circumstances; and

(f) the first defendant failed to procure at first instance specialist advice, attention or care on the deceased’s obvious and serious condition.

The plaintiffs argued that as the first defendant was employed by the second defendant, the second defendant is vicariously liable for the negligence of its servant or agent.

The plaintiffs are now claiming, interests and costs.

An autopsy dated 18 August 1989 described the case as one of acute bacillary dysentery with bronco-pneumonia. The plaintiffs in this action are the parents and customary personal representatives of the child.

A default judgment was obtained against the defendants on 11 July 1990 after the defendants failed to file a defence. The matter is now before this Court for assessment of damages only.

The plaintiffs called two witnesses in support of the claim in relation to the expenses incurred as a result of the death and customary obligation during the funeral.

One of the plaintiffs Philip Inabari gave evidence that on the day of the death of his son he rang the Sacred Heart Brothers to make a coffin. The coffin was made and he paid K63 for it. Receipt No 13 dated 13 June 1989 was issued for the payment of the coffin.

He also gave evidence that on the same day, 13 June 1989, he hired two vehicles from the Sacred Heart Brothers, a Toyota Dyna Truck and a Daihatsu truck. He paid a total of K1,680 for the hire of the vehicles. He used the vehicles for transporting the body of his son and twenty-four boys from Boystown Wewak. He had to buy food to feed people at the village who came to mourn and pay respect. The witness bought clothes and flowers for the deceased on that day.

The plaintiff tendered receipts for payment of four bags of cement, iron rods, paint, sand paper, nails, oil and timber. He paid cash for those items on 21 July 1989 on invoice No 59 for K115. These items were for the base of the grave and headstone.

On 27 June 1989, he paid for the hire of the two vehicles on Invoice No 56 for a sum of K1,680. One of the trucks was hired for fourteen days and the other one was hired for seven days. The hired for fourteen days cost him K1,120 whilst the one hired for seven days cost K560.

The plaintiff also tendered a receipt from the Post and Telecommunications Corporation for the amount of K342.05. That amount he said was incurred when he made numerous phone calls to Kimbe, Bialla and Kundiawa. His evidence was that he used the telephone belonging to the Sacred Heart Brothers and he paid that to the Brothers and they in turn paid it the Post and Telecommunications Corporation.

Another invoice for the amount of K180 was tendered. That invoice was for purchase of name tags, rebates, solder sticks, gas and iron sheets. These items were for the headstone.

The plaintiff says he made purchases of food items for which he did not receive receipts. On 13 June 1989, he bought K30 worth of clothes to dress the body of the child. Also on that day he bought K120 worth of food. He gave evidence that, from 14 June 1989 to 21 June 1989, it cost him K50 per day to feed the people who came to mourn the death of child.

On 22 June 1989, he bought K300 worth of food and a side of buffalo for K98 to feed people.

He also, on 22 June 1990, bought fresh set of clothes to dress the body which were worth K100. He further paid K40 for labour costs of men who dug the grave on that day.

Before I go on to assess the damages it is important to note certain events. On 13 June 1989, at 5.40 am the child died. The body was taken to Kotai village, Dagua that day. People viewed the body that day until 12.00 midnight. At midnight on 14 June 1989 the body of the child was taken to Isag but on the way at Wantogik village it started raining so the body stayed there until 9.00 am. From Wantogik village the body was returned to Wewak for a post mortem examination. The body was at the Boram Hospital from 14 June 1989 to 22 June 1989. In the meantime from 14 June 1989 to 22 June 1989 the plaintiff says he was paying K50 per day to feed people who had come to mourn and who were staying at his house. At this time also he was using the two hired trucks. One was used from 13 June 1989 to 19 June 1989 when it was returned whilst the other one was returned on 26 June 1989 a total of fourteen days.

ASSESSMENT

(a) Loss of expectation of life

This claim has its basis on s 25 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297).

Under that head I am prepared to award what has been termed the "conventional" amount. This so-called conventional amount of K1,500 was first awarded in 1978 by Wilson J in the case of Rokan Bayava v Minisang Wankiar and Lufa Local Government Council [1978] PNGLR 391. In 1981, Miles J also awarded K1,500 in the case of Vian Guatal v The Independent State of Papua New Guinea [1981] PNGLR 230. I have not been referred to any earlier decisions. The incident in this instant case arose in 1989 over ten years ago when the K1,500 was first found to be the "conventional sum". I do not think that amount is applicable today nor do I think it was applicable in 1989 at the time of the incident. That amount in my view should be reviewed taking into account the fall in the value of the Kina.

(b) Solatium

The statutory amount fixed is K600. I award K600 under this head pursuant to s 29(2) of the Wrongs (Miscellaneous Provisions) Act (Ch No 297).

(c) Funeral expenses

Under this head s 28(2) of the Wrongs (Miscellaneous Provisions) Act provides that "damages may be awarded in respect of medical expenses incurred as a result of the injury causing the death, together with reasonable expenses of the funeral or cremation of the deceased person (including the cost of erecting a headstone or tombstone over the grave of the deceased person) if those expenses have been incurred by one or more of the parties for whose benefit the action is brought".

If any award is to be made under this head the award has to be reasonable funeral expenses incurred. I have been referred to the Workers’ Compensation Act 1978 for purposes of comparison. Under the Workers’ Compensation Act reasonable expenses for a funeral would not exceed K300. I have also been referred to English cases such as Hart v Griffiths-Jones [1948] 2 All ER 729 and Stanton v Ewarth F Youlden, Ltd [1960] 1 All ER 429. The obvious problem with these cases referred to me is that reasonable funeral expenses incurred in England are not necessarily the same as reasonable funeral expenses incurred in Papua New Guinea.

In Papua New Guinea generally, the event of a death is regarded as a big occasion. This may also depend on the standing of the person in the community; obviously many more people will come from far and near to pay their respects at the funeral. The status of the dead man also may determine the period of the mourning. If the dead person was a big man in the community the mourning period will be longer than an ordinary person. The dead man’s parents and relatives have the burden of looking after or catering for the mourners. There are obligations which are important in the traditional society. Feasts and other rites and ceremonies take place. Several feasts may be made to finally say goodbye to the spirit of the dead man. In other words further activities take place after the burial which places heavy responsibilities on the parents or relatives of the deceased, thus adding to their expenditure.

I have heard the evidence of Clement Haian Woibun whose age I estimated to be sixty years who gave evidence of customs in his area in relation to funeral arrangements, obligations and ceremonies. He also gave evidence of obligations of the relatives of the deceased including the deceased parents to provide for the mourners and that the mourning period is up to about two weeks.

The question is what are reasonable funeral expenses in Papua New Guinea? Should they include expenses incurred after the burial? If they include expenses after the burial what is the reasonable period for which such expenses can be recovered?

These questions are necessary and should be answered because of so many ranging customs and practices in Papua New Guinea. I think some guide should be set as to what expenses might be claimed and what might not be claimed.

Expenses envisaged by s 28(2) of the Wrongs (Miscellaneous Provisions) Act are reasonable funeral expenses; or expenses which are reasonably expected to be incurred during a funeral.

In this case I consider the reasonable funeral expenses to include:

(a) Purchase of the coffin of K63.

(b) Purchase of clothes for K130.

(c) Payment of labour for digging grave K40.

(d) Payment of cement, iron rods, paint, sandpaper, nails oil and timber K115.

(e) Payment of name tags, rebates, solder sticks, gas, iron sheets K180.

(f) Payment of food on 13 June 1989 for K20.

(g) Payment of food and a side of buffalo on 22 June 1989 for K390.

(h) Payment of food for fourteen days after the burial at K50 per day a total of K700. I award this as it is a customary obligation. The body was taken to the village but returned to the morgue and people were already there at the place of mourning. It thus became an obligation for the plaintiff to cater for them. I think this is a reasonable expense taking customs into account it is not inconsistent with any constitutional law or any Act of Parliament. I consider the mourning period of fourteen days to be reasonable in this case.

(i) Telephone bill for K100. I award this amount of the total bill as I do not believe that a high phone bill for K342.05 for a few phone calls around the country was reasonable. The phone bill was paid by the Sacred Heart Brothers and this Court was not shown the original of the phone bill from the PTC. A figure of K100 is a reasonable amount in my view.

(j) Payment for hire of one vehicle for a period of seven days at K560. I do not believe that it was necessary to hire two vehicles. It was necessary to hire one vehicle to take the body to the village. I also do not believe that it was necessary to hire one of the vehicles for fourteen days. I think that was unnecessary. He would have needed a vehicle on the 13th, 14th and 15th then returned the vehicle to be on standby until the date of the post mortem on 21 June 1989. Then he would on the 22nd have used the vehicle to take the body home and kept it for about another two days to attend to other urgent matters.

I also fail to understand that the Brothers of Sacred Heart were transported in the vehicle hired from them.

Under the funeral expenses head I award K2,406.

The summary of the award is:

Loss of expectation of life K 150.00 
Solatium K 600.00 
Funeral Expenses K2406.00 
Total K4506.00 

INTEREST

Whilst interest is a discretionary matter for the Court I am prepared to award interest on those amounts pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Ch No 52). This is to compensate the plaintiffs for receiving their moneys later than they should have done.

Interests for damages for loss of expectation of life runs from the date of service of the writ to date of trial at 8 per cent. I work that out to be K120.

Interest on solatium and funeral expenses runs from 13 June 1989 to 17 April 1991 (date of trial) at 4 percent. That is about 1.1 years and I work that out to be K132.26.

The total amount I award to the plaintiffs is K4,758.26.

Judgment for K4,758.26.

__________________

Lawyer for the plaintiffs: J Yagi.
Lawyer for the defendants: J Puringi.