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Kosam v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 74; [1993] PNGLR 481 (17 November 1993)

PNG Law Reports 1993

[1993] PNGLR 481 - Alu Kosam v MVIT 

[1993] PNGLR 481

N1187

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ALU KOSAM

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

18 October 1993

17 November 1993

NEGLIGENCE - Motor vehicle accident - Vehicle driven by husband hit and killed woman - Liability apportioned at 50 per cent.

DAMAGES - Quantum - Deceased a female school teacher - Dependency of parents and children - Adequacy of statement of claim.

Facts

The plaintiff brought a dependency claim under the Motor Vehicles (Third Party Insurance) Act Ch 295 on behalf of the parents and children of Susan Kosam, who died from injuries received in a vehicle accident. She was struck by a vehicle driven by her husband. The defendant contended the statement of claim did not show full particulars of the claim for dependency and loss.

Held

The pleadings are sufficient to allow the plaintiff to claim some loss of dependency on behalf of the parents and children. Damages awarded for past and future loss are apportioned at 50 per cent liability.

Cases Cited

Nolnga v Motor Vehicles Insurance Trust [1991] PNGLR 436.

Counsel

P Kopunye, for the plaintiff.

A Kandakasi, for the defendant.

17 November 1993

WOODS J: This is a claim on behalf of the parents and children of Susan Kosam, who died from injuries when she was struck by a vehicle driven by her husband near Banz on 5 April 1991. There has been an agreement for liability to be apportioned at 50 per cent. This is a dependency claim by the parents for the support to be expected from a salaried daughter during the remainder of their lives and the support, both material and as a mother, to be expected by the three children of the deceased until they attain the age of 18 years.

At the time of her death, the deceased and her husband were both teachers at the Fatima Community School near Banz. They had three young children, aged five years, two years, and one year.

It is submitted by the defendant that the statement of claim did not show full particulars of the claim for dependency and loss of the mother on behalf of the children. As Order 33, in effect is a code of pleading, if the particulars are not pleaded, then the court cannot find for the claim.

However, the statement of claim clearly states that the claim is on behalf of the parents and children for the loss of the mother. The details of the parents and children is set out in clause 3 of the statement. Clause 3 sets out the names and ages of the children. What else is needed? Nothing, as they are clearly not in employment. The salary of the deceased is in the pleadings. Of course, it is up to the Court how much should be considered from the deceased mother, considering the father of the children is equally employed.

I am satisfied that the pleadings are sufficient to allow the plaintiff to claim some loss of dependency on behalf of the parents and children. Whilst it is submitted on behalf of the defendant that the evidence of the birth and dependency of the three children is unclear, I am satisfied on the evidence before the court, which includes documents from the Department of Education accepting the dependency of the three children.

There can be no doubting that the deceased, through her employment, would have contributed significantly to the financial support and standard of living of the family. Through her loss, the children may not get the same level of support or standard of living as they may have expected. Already, it appears that they may be moving between the father and his new wife in Lae and the deceased's parents in the Western Highlands; so whilst the legal obligation of support may still be with the father, there is some loss from the death of the deceased.

Also, the deceased being in salaried employment, her parents would have expected some support from her during their lifetime, perhaps sporadic whilst they were still fit but increasing as they got older and less able to work in their gardens for themselves.

I refer to the case Nolnga v Motor Vehicles Insurance Trust [1991] PNGLR 436, where figures were estimated for the loss suffered by the children following the death of the mother, who did actively contribute to the income and standard of living of the family and children. I note that the income of the deceased was K111 per fortnight and, thus, K55 per week. I feel that it is not inappropriate to assess that the children may each have benefited to the value of K10 each per week from the mother. For past loss from the date of death to the date of judgment, being 2 years and 32 weeks, that assesses at K1,360 for each of the 3 children. The future loss for each child would be; for Jayson K10 for 10 and a half years at 3 per cent is K4,700, for Nancy K10 for 13 and a half years at 3 per cent is K5,800, and for Stephanie K10 for 14 and a half years at 3 per cent is K6,200.

The parents' claim is harder to quantify. The loss at present is based on the occasional amounts given at infrequent intervals. The evidence talks of amounts of K10 or K20 and gifts of food at infrequent intervals. I am prepared to average such out at K4 each per week for the lifetime of parents. The parents appear to have been about 45 years at the date of the deceased's death. According to life expectancy tables, I will allow for the dependency until 65 years, thus for 20 years each. The past loss, therefore, would be K4 each for 2 years 32 weeks, totalling K544 each. Future loss would be K4 for 20 years at 3 per cent is K3152.

I would allow 4 per cent interest on the past loss.

To summarise:

There will be 50 per cent of the estate claim, which would be K750, go to the father.

There has been some traditional compensation which I would estimate being three pigs, worth about K1,000, plus cash to total K2,000, which amount would be deducted from the parents' total.

I order judgment for K13,031.72 and the usual orders for investment of the children's awards.

Lawyer for the plaintiff: Kopunye Lawyers.

Lawyer for the defendant: Young & Williams.