N1027

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WAI GENDE ELEWAI

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

16-17 December 1991
3 February 1992

CUSTOMARY LAW - Rights of adopted child.

DAMAGES - Calculation of damages for widow - Dependency claim for adopted child - Calculation of damages for death of villager without regular income.

NEGLIGENCE - Unlicensed driver held liable for negligence for accident resulting in death of plaintiffs husband.

Facts

The plaintiff brought a claim on behalf of herself and her child as a consequence of the death of her husband, caused by an accident when he was a passenger in a motor vehicle. The plaintiff claimed that the driver of the vehicle was negligent and sued the Motor Vehicles Insurance (PNG) Trust as the insurer. The Trust denied liability.

Evidence was presented by witnesses for the plaintiff that, while the vehicle was going up a steep rise, it stalled and rolled backwards, overturning over a cliff into a river. While some passengers were able to jump free of the vehicle, others including the plaintiffs husband were carried with it into the river.

The driver of the vehicle gave evidence that he possessed only a learner's permit and was, therefore, unlicensed to drive the vehicle.

Issues

1. Whether the accident was attributable to negligence of the driver of the vehicle.

2. Whether in assessing damages the Court should take into account the subsistence nature of the deceased's work, the length of his marriage to the plaintiff, and the ages of the deceased and his widow. In addition, the question of an entitlement for the couple's adopted child was raised.

Held

1. The driver fell below the applicable standard of care, thereby causing the accident and the death of the plaintiffs husband.

2. In assessing damages in the circumstances, the Court must assess the deceased's contributions to the family in a village subsistence economy where there are no exact figures.

3. Damages for the couple's adopted child must take into account the fact that the child does not live with the plaintiff and that the adoption was a customary one, where the legal obligations of the adopting parents are unclear.

Counsel

D L O'Connor, for the plaintiff.
A Kandakasi, for the defendant.

3 February 1992

WOODS J: The plaintiff is claiming as the widow of one Elewai Temai who was killed in a motor vehicle accident on 20 June 1988. He was a passenger on a motor vehicle, registered AEX 616, driven by Konia Kamore, which rolled backwards off the Kundiawa - Gumine road in the Simbu Province and overturned over a cliff into a river.

The plaintiff is claiming on behalf of herself and her child. She alleges that her husband was killed through the negligence of the driver of the motor vehicle. The claim is brought against the Trust as the insurer of the motor vehicle and the Trust is denying liability.

The plaintiff brought witnesses who gave the following evidence: Sergeant John Warren gave evidence that he was the officer in charge of the traffic section at Kundiawa Police Station. After reporting for duty on 21 June 1988, he was informed of a motor vehicle accident that occurred the previous evening on the Gumine Road. He went to the scene where the vehicle was lying in the river where it had come to rest after the accident. He assisted in the search for the bodies of the people who had been killed and one of the deceased was identified to him as being Elewai Temai. The sergeant prepared the usual road accident report and noted that the accident had happened as the vehicle was being driven up a steep rise. A witness, Morua Bomal, gave evidence of being a passenger on the subject vehicle and says that she and the deceased and others were on the utility when it stalled going up a steep hill, and then ran backwards. Whilst she was able to jump off in time, a number of people ended up with the vehicle in the river.

The driver, Kopia Kamore, gave evidence about being the driver of the vehicle but only having a learner's permit. He says that when the vehicle stalled he tried to drive the vehicle, but the gear disengaged and the vehicle rolled backwards into the river and there was nothing he could do. There is a suggestion in his evidence that there may have been a mechanical defect to make the gear disengage, but there is no technical evidence to suggest a mechanical defect.

The driver said he only had a learner's permit. As far as the police are concerned he was unlicensed. There is no evidence to suggest that the deceased knew the driver was not properly licensed to drive a vehicle with passengers. Rather, some of the witnesses say that they had seen him driving around for some time. I note here that the driver appeared to be well educated and gave his evidence in English in Court. So his confident and educated manner may have led people to think that he was properly licensed and fit to drive a vehicle.

In the circumstances I am satisfied that the driver had fallen below the standard of care applicable in the circumstances and by his failures he caused the accident and, thereby, caused the death of the deceased. I am not satisfied there is any contributory negligence in the deceased. I find the Trust liable in damages for the death of Elewai Temai.

There is a question as to whether the plaintiff is actually the widow of the deceased. It appears that following the accident some other person presented herself to the Trust as the widow for the purpose of the Basic Protection payment. However, the plaintiff has sworn before this court that she is the widow, and her status has been attested to by another witness, namely, Timothy Kaupa. No other person has been brought before me to say that that is not true, so I must accept the evidence before me that the plaintiff is the widow of the deceased and entitled to make this claim.

ON DAMAGES

The deceased was a villager with no regular salary income but relying on his own efforts in the village situation. He and his wife had pigs, a small trade store and vegetable cash crops. Whilst both husband and wife would have worked together in these rural and subsistence activities, the widow's activities will now be scaled down. Whilst some figures are mentioned as the moneys earned from these activities, they are not clearly defined as being net or gross or over what period they were obtained. I must, therefore, assess the deceased's contributions to the family in a village subsistence economy where there are no exact figures to work from. The widow says they were married about 8 years, they had no children of their own but had an adopted child. I will assess the plaintiff and the deceased as being in their middle 20s. Therefore, there would be a dependency for 30 years. I will allow the figure of K6 per week for the widow.

The plaintiff is also claiming for a child, Brenda, aged about 9 years. However, this child is not a real child of the plaintiff and deceased but an adopted child and, further, she is not living with the plaintiff but is living with an uncle and going to school in Lae. The child's real parents are still living in their village. The circumstances of the adoption are not really made clear to the court. I realise that children are often moved by way of customary adoption from family to family, often because the real parents may not be so able to look after the child or because some other relatives do not have children of their own. What legal obligations are put on people by these customary adoptions? If an adopting parent dies may not then the child be taken by another family more able to support her rather than remain an obligation on the surviving parent? Is this what has happened in Lae? I find this an area of great uncertainty and the evidence and submissions made to me here not really adequate for a full consideration. I will find that the child has lost something through the death of the deceased; however, I will not find the loss is the usual amount considered by the courts in such circumstances but will find a reduced figure of K2.50 for the child until she attains the age of 16 years.

On contingencies, as the widow is still fairly young and has no children of her own and with an adopted child now living elsewhere, I will allow a reduction of 50% on the widow's future loss. I will allow a 5% contingency reduction against the child.

I divide the loss into the loss incurred prior to the trial and then future loss.

Loss to date of judgement being for 3 years and 32 and half weeks at K6 is K1,131 for the plaintiff plus interest at 4% from date of death to date of judgement being K163.97 - total K1,294.97. And for the child Brenda at K2.50 is K471 plus interest at 4% being K68.28 - total K539.28.

Future Loss					
	Years Dependency	Estimated Economic Loss	Multiplier	Total	
Plaintiff	26	6	947	K5,682.00	
Brenda	4	2.50	17	492.50	

Less Contingencies	Total	Past Loss	Total	
50%	2,841.00	1,294.97	K4,135.97	
5%	67.87	539.28	1,007.15	
			K5,143.12	

I order judgment for K5,143.12.

I order the sum of K4,135.97 be paid to the plaintiff Wai Gende.

I order the sum of K1,007.15 be paid to the Registrar to be invested by him on behalf of Brenda Elewai until she attains the age of 18 years, which shall be deemed to occur on 20 June 1997.

______________

Lawyer for the plaintiff: O'Connor & Hasu.
Lawyer for the defendant: Young & Williams.