N6509
PAPUA NEW GUINEA
	[IN THE NATIONAL COURT OF JUSTICE]

WS NO 2008 OF 2005

ROY MANDURU, FOR AND ON BEHALF OF
BARNABAS MANDURU (DECEASED)
Plaintiff 

V

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Waigani: Cannings J
                                                2015: 10, 17 November 
      2016:  28 October 

DAMAGES – negligence – death of 17-year-old boy in motor vehicle accident – claim by father of deceased against insurance company – assessment of damages, after liability established at trial.

The plaintiff succeeded at an earlier trial in establishing liability in negligence against the defendant regarding the death of his 17-year-old son who was killed when a motor vehicle insured by the defendant was driven negligently and struck the boy as he was walking on a footpath. At this trial on assessment of damages the plaintiff claimed: (1) K8, 000.00 as an estate claim, (2) K273, 000.00 as a dependency claim, (3) K600.00 solatium and (4) special damages of K41, 231.00, a total claim of K322, 831.00. The defendant argued that the plaintiff should be awarded K3, 000.00 + 0 + K600.00 + K675.00, a total of K4, 275.00. 
	
Held:

(1)	K8, 000.00 was awarded for the estate claim.

(2)	The dependency claim was valid, in principle, its purpose being to compensate the plaintiff for the loss of support his son would reasonably have been expected to provide to him in the period beginning from the deemed date that the son would have been expected to start supporting the plaintiff and ending on the deemed date of death of the plaintiff. The sum was calculated at the rate of K60.00 per week for a period of 10.75 years = K33,540.00

(3)	A solatium of K600.00 was awarded.

(4)	Special damages were awarded, taking into account the deficiencies in the evidence, in the sum of K10, 000.00.

(5)	The total amount of damages awarded was K52, 140.00.

(6)	In addition interest was awarded, calculated from the date of the judgment on liability to the date of the judgment on damages, at the rate of 8% per annum = K16, 684.80. 

(7)	The defendant was ordered to pay the plaintiff’s costs of the trial on assessment of damages. 

Cases cited:

The following cases are cited in the judgment:

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Inabari v Sapat and The State [1991] PNGLR 427
Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167
Jonathan Mangope Paraia v The State (1995) N1343
Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106
Koko v MVIT [1988] PNGLR 167
Kolaip Palapi v Sergeant Poko (2001) N2274
Makire Napiri v The State (2006) N2976
Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979
Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78 
Robert Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950
Roy Manduru v MVIL, WS No 2008 of 2005, 01.11.12, unreported

TRIAL

This was a trial on assessment of damages for death of a child in a motor vehicle accident.

Counsel:

T Ilaisa, for the Plaintiff
P N Rumints, for the Defendant

28 October, 2016

1.     CANNINGS J:  This was a trial on assessment of damages. The plaintiff, Roy Manduru, succeeded at an earlier trial in establishing liability in negligence against the defendant, Motor Vehicles Insurance Ltd, regarding the death of his 17-year-old son, Barnabus Manduru (Roy Manduru v MVIL, WS No 2008 of 2005, 01.11.12, per Gabi J, unreported).

2.     Barnabas was a grade 10 student at Badihagwa Secondary School. He was killed in Port Moresby on the afternoon of 23 September 2002 when a motor vehicle driven by an employee of Boroko Motors, collided with him as was walking on a footpath on Kennedy Road, Gordon. It was established at the trial on liability that the driver of the vehicle drove negligently, that the vehicle was registered and insured with MVIL, that the deceased’s death was caused directly by the negligent driving of the vehicle and that MVIL, being the insurer of the vehicle, was liable in damages. 

CLAIM

3.    The plaintiff claims four categories of damages: 

(1) K8, 000.00 as an estate claim,  
	
(2) K273, 000.00 as a dependency claim, 

(3) K600.00 solatium, and 

(4) special damages of K41,231.00, 
a total claim of K322,831.00. 

4.    The defendant argues that the plaintiff should be awarded K3, 000.00 + 0 + K600.00 + K675.00, a total of K4, 275.00. 

1 	ESTATE CLAIM 

5.    Estate claims are made under Section 34(1) of the Wrongs (Miscellaneous Provisions) Act, which ensures that if a person dies his or her estate can be sued or can sue, as if the person had not died. Section 34(1) states:

Subject to this section, on the death of a person … all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate. [Emphasis added.]

6.     For many years the conventional sum to award for this head of damage has been K3, 000.00 (Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78 at p 88). In Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106 I awarded a more realistic figure of K6, 000.00. In Robert Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950 I increased it to K8, 000.00. I award K8, 000.00.

2 	DEPENDENCY CLAIM 

7.    Mr Ilaisa, for the plaintiff, submitted that the plaintiff should be compensated for the loss of his son’s assistance in contributing to the maintenance and welfare of the family. He submitted that the evidence of the plaintiff showed that the late Barnabas was a very intelligent child and an above-average student. The plaintiff testified that it was Barnabas’ ambition to be a doctor. He said that Barnabas’ best mate at school, shared that ambition and that that person is now, in fact, a doctor. The plaintiff is confident that Barnabas would have also become a doctor and would have been in a strong position to provide financial support for the family. Mr Ilaisa submitted that the amount awarded should be at the rate of K150.00 per week for 35 years: K273, 000.00.

8.    Ms Rumints, for the defendant, submitted that the dependency claim was based on supposition and speculation and that there was no worthwhile evidence to support the plaintiff’s assertions as to his son’s intelligence or the prospect of his becoming a doctor. The plaintiff is like many parents who have inflated views as to their children’s intelligence. The plaintiff’s evidence is vague and uncorroborated, Ms Rumints submitted.

9.   I agree with Ms Rumints that it is difficult for the court to find, on the evidence available, that the deceased would definitely have become a doctor. On the other hand, the Court is entitled to take into account the strength of the plaintiff’s testimony about his son’s ambitions. Ms Rumints submitted that because of the deficiencies in the evidence the Court was obliged to award nothing for the dependency claim. I reject that part of her submission.

10.    I consider that, in principle, it is proper to award damages to compensate a parent for the loss of financial support that would reasonably be expected to have been provided by their child, had the child not died. I explained in Makire Napiri v The State (2006) N2976, Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979 and Robert Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950, why this is a proper claim; and why I respectfully consider that the approach taken in cases such as Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167 and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645 – that parents should not be regarded as dependent on their children and should not be awarded damages for a dependency claim – to be unjust and inappropriate to the circumstances of Papua New Guinea.

11.    The plaintiff has established a prospective dependency on his deceased son. As for the method of calculation of an appropriate award. I agree with Mr Ilaisa’s submission that there are two figures to identify and fix:

•	the monetary amount per week, which represents the extent to which the plaintiff would have been dependent on his son; and 

•	the length of the period of dependency.

12.    However, I do not accept the two figures advanced by Mr Ilaisa: K150.00 per week, for a period of 30 years. Both figures are exaggerated and unprecedented

13.    As to an appropriate weekly amount to use as the basis for calculation of this category of damages, I refer to three previous cases. In Napiri and Komba I used the sum of K20.00 per week. In Wandokun I used K30.00 per week. In this case, in light of the evidence of the plaintiff, which I regard as credible, as to the prospects of Barnabas becoming a doctor (and therefore in a good position to provide financial support for his father), and taking into account that that prospect was by no means a certain outcome, I will use the sum of K60.00 per week.

14.    As for the period of dependency, I find, on the facts, that the plaintiff would have become partially dependent on his son, upon his son attaining the age of 25 years. That would have been the case until the plaintiff dies. 

15.    I fix the commencement of the period of dependency as the deceased’s 25th birthday, to take into account that if in fact the deceased had become a doctor, the period of tertiary education, and the lapse of time until the deceased was in a position to provide financial support, would have been considerable. The plaintiff’s deceased son Barnabas’ date of birth (which is in evidence) was 17 February 1985. The date of his 25th birthday would have been 17 February 2010. 

16.    As for the plaintiff, I have seen him in Court, giving evidence in the witness box. I invoke Section 63 (age) of the Evidence Act, which states:

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

17.    I estimate and determine that on 17 November 2015 the plaintiff was 60 years old. I accord to him a life expectancy of 65 years. 

18.   The period of dependency is therefore the period from 17 February 2010 (when Barnabas would have attained the age of 25 years) to 17 November 2020 (when the plaintiff will attain the age of 65 years): a period of 10.75 years.
.
The amount awarded is:

K60.00 per week x 52 weeks x 10.75 years = K33, 540.00.
	
3 	SOLATIUM

19.  This claim is made under Section 29 of the Wrongs (Miscellaneous Provisions) Act, which allows the court to award a sum, not exceeding, K600.00, “by way of solatium for the suffering caused to a parent by the death of the child”. The plaintiff seeks K600.00 and the defendant concedes this part of the claim. I award K600.00.

4 	SPECIAL DAMAGES

20.    The plaintiff claims K41, 231.00, comprising three types of special damages:

(a)	funeral expenses: K37,556.00,
(b)	personal expenses in prosecuting the claim: K675.00, 
(c)	bus fares over a period of more than 10 years, travelling between his residence at Gordon to the office of the Public Solicitor at Boroko: K3,000.00.

21.    Ms Rumints conceded (b) but submitted that nothing should be awarded for (a) or (c). I accept the concession as to (b) and will award, at least, that sum. I uphold the submission as to (c). It is a vague claim, which has not been pleaded in the amended statement of claim filed on 23 August 2011. I award nothing.

22.   That leaves (a), the funeral expenses claim. Ms Rumints skilfully exposed deficiencies and inconsistencies in the evidence in support of this claim. Invoices were not presented to verify the amounts the plaintiff says he spent on transportation costs connected with movement of the deceased’s body in Port Moresby, costs incurred at the funeral home, airfares and freight charges to Tufi, Northern Province, purchase of food and refreshments for funeral feasts and the like. 

23.    However, while I agree that the claim for K37, 556.00 is not supported by documentary evidence, I reject the submission that nothing should be awarded for funeral expenses. I will estimate a reasonable amount, for four reasons:

(i)	The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available, the court expects to have it. However, where it is not, the court must do the best it can (Jonathan Mangope Paraia v The State (1995) N1343). 

(ii)	The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims (Kolaip Palapi v Sergeant Poko (2001) N2274). 

(iii)	The plaintiff has given oral evidence to support this detailed claim. He was a credible witness. 

(iv)	Section 28(2) of the Wrongs (Miscellaneous Provisions) Act specifically provides for funeral expenses. In Inabari v Sapat and The State [1991] PNGLR 427 Salika J explained how a reasonable figure should be assessed, having regard to the normal costs and customary obligations that are generated by a death in PNG.

24.   Applying those considerations to this case and having taken into account the submissions of both counsel, including the concession as to the amount of K675.00, I determine that a reasonable figure for special damages is K10, 000.00, apportioned as (a) K9, 325.00 for funeral expenses and (b) K675.00 for personal expenses.

SUMMARY

25.   The following amounts of damages are awarded:

(1)	estate claim: K8,000.00, 
	
(2)	dependency claim: K33,540.00,

(3)	solatium:  K600.00, 

(4)	special damages: K10,000.00.

Total = K52, 140.00.

INTEREST

26.   Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015. Interest is calculated in respect of the period from the date of the judgment on liability (1 November 2012) to the date of this judgment, a period of 4 years, by applying the formula D x I x N = A, where: D is the amount of damages assessed, I is the rate of interest per annum, N is the appropriate period in numbers of years and A is the amount of interest. Thus: K52, 140.00 x 0.08 x 4 = K16, 684.80

COSTS

27.   Costs will follow the event, payable on a party-party basis. 
REMARKS 

28.    It is 14 years since the death of the plaintiff’s son, in 2002. It is 11 years since commencement of these proceedings, in 2005. The judgment on liability was in 2012. The MVIL appealed to the Supreme Court and the appeal was dismissed. The trial on assessment of damages was in 2015. It is now late 2016. This has been a protracted litigation. It is not clear why it has taken so long to have the matter resolved. There is no evidence before me to suggest that the plaintiff or the defendant or even the courts have been responsible for this delay. Whoever and whatever is the cause of the delay, it is something that needs to be remarked on. It is an unsatisfactory state of affairs. We – the lawyers and all the members of the justice system, including me – need to do better, in these sorts of cases.  

29.    I urge the defendant, the MVIL, to consider this unsatisfactory state of affairs if it gives consideration to appealing against this judgment. I urge the defendant to put this very sad case and this judgment in a human context. I urge the defendant to remember that it is dealing with a man, Mr Manduru, who has suffered, and there is no doubt from his evidence that he is still suffering from, a great loss. His son, Barnabas, was killed, in tragic circumstances, at the tender age of 17, because of the wrongful, negligent act of another person. 

30.   The awards of damages and interest that I have arrived at are, in my view, modest and reasonable sums, which go only a small way towards compensating a father for the unnecessary, tragic death of his son.
 
31.    Mr Manduru deserves some degree of closure. He does not deserve, 14 years after his son’s death, to be put through another appeal, another court case, another delay. The MVIL is in a position to give Mr Manduru that small degree of closure that he deserves. It can do that by paying the judgment debt immediately and telling Mr Manduru that there will be no appeal. 

ORDER
(1)	The defendant shall pay to the plaintiff damages of K52, 140.00 plus interest of K16, 684.80, being a total judgment sum of K68, 824.80.

(2)	The defendant shall pay the plaintiff’s costs of and incidental to the trial on assessment of damages on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly, 
______________________________________________

Public Solicitor       :     Lawyers for the plaintiff			
Mirupasi Lawyers   :      Lawyers for the defendant