N11167

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 33 OF 2010

BETWEEN:
MASBUD KUWONG
Plaintiff

AND:
PNG POWER LTD
Defendant

MADANG:  NAROKOBI J
20 SEPTEMBER 2024; 7 MARCH 2025

DAMAGES – Dependency claim – Appropriate categories and quantum of damages considered and awarded.

On 29 January 2009 the Plaintiff’s son, Gunai Masbud was electrocuted, at a school called Bahor Primary School in Madang. A live powerline lay on the ground close to a betelnut tree felled by the Plaintiff’s son. Unfortunately, the betelnut tree leaf touched the live wire and when Gunai Masbud attempted to remove the leaf, he was instantaneously electrocuted. As part of the safety mechanism, the Defendant was to have installed a safety switch at a place called Danben Junction, but did not. Negligence was as a result established against the Defendant. The Plaintiff now seeks damages following successfully establishing liability against the Defendant.

Held:

(1)	Following Wandokun v Leeman (2015) N5950 (cited with approval in Motor Vehicle Insurance Ltd v Manduru (2018) SC1750) general damages was assessed taking into account: (a) loss of life expectancy, regarded as an estate claim; (b) future economic loss, regarded as a dependency claim, to compensate the plaintiff for the loss of support his son would reasonably have been expected to provide to the parents, and (c) pain and hardship.

(2)	In Wandokun v Leeman an estate claim, or loss of life expectancy was awarded at K8,000.00. 10 years have since passed, necessitating an increase by K2,000.00 to K10,000.00.

(3)	Special damages awarded for funeral expenses, with no award for solatium.

(4)	The Defendant failed to implement a standard safety procedure, which would have automatically switched off electric current from flowing through a felled powerline. Such failure posed great danger to unweary pedestrians, as was what happened in this case, resulting in the loss of an innocent life. Felled powerlines occur frequently in the country, and the fact that most power poles traverse common walkways demands regular maintenance checks to avoid exposing the public to risk of being electrocuted. An award for exemplary damages as a punitive and deterrent measure is necessary to compel the Defendant to be compliant.

(5)	A total of K120,280.00, is awarded consisting of the following categories of damages:

•	General damages: K50,280.00;
•	Special damages: K20,000.00; and
•	Exemplary damages: K50,000.00.

(6)	Furthermore, interests at 8% on the judgment sum and costs is awarded against the Defendant.

Cases cited
Albert v Aine (2019) N7772
Inabari and Another v Sapat and The State [1991] PNGLR 427
Ibi Enei v. Rimbunan Hijau Limited (2011) N4402
Jonathan Mangope Paraia v The State (1995) N1343
Mel v Pakalia (2005) SC790.
Motor Vehicle Insurance Ltd v Manduru (2018) SC1750
Rimbunan Hijau (PNG) Ltd v. Ina Enei 2017 SC1605
Wandokun v Leeman (2015) N5950

Counsel
Joseph Lai for the plaintiff
No appearance for the defendant

DECISION

1.	NAROKOBI J: The Plaintiff comes to court to seek damages after he proved that the Defendant was liable for the death of his son, who died after he was electrocuted. The Defendant contested liability but have not shown any interest in the trial on assessment of damages.

Background

2.	This matter for one reason or another has taken a while to conclude. On 29 January 2009 the Plaintiff’s son, Gunai Masbud was electrocuted, at a school called Bahor Primary School in Madang. A live power line lay on the ground close to a betelnut tree felled by the Plaintiff’s son. Unfortunately, the betelnut tree leaf touched the live wire and when Gunai Masbud attempted to remove the leaf, he was instantaneously electrocuted. As part of the safety mechanism, the Defendant was to have installed a safety switch at a place called Danben Junction, but did not. Negligence was as a result established against the Defendant. Liability now being established, the Plaintiff seeks damages.

Issue 

3.	Liability was established after a contested trial. What remains now for me to decide is the appropriate amounts of damages, that the Plaintiff should be entitled to, and under what heads of damages. The Plaintiff submits that damages should be awarded under three categories:

•	General damages.
•	Special damages.
•	Exemplary damages.

4.	I consider each of these categories, in my determination on assessment of damages.

Evidence

5.	The Plaintiff filed six affidavits. No affidavits were filed by the Defendant in response. Contents of each affidavit filed by the Plaintiff are summarised below.

6.	Exhibit P1 is the affidavit of Sakli Bingai, filed on 24 November 2023. He is 56 years old, and is from Wab Village, and a clan leader of Billi Clan. Wab Village is in Saidor Local Level Government, in the Raikos District. Having lived in the village all his life, he knows well their customs. When a person dies, their custom requires them to prepare a feast for the maternal uncles, accommodate and feed those who attend the mourning and compensate the persons assisting in the burial. The feast involves the slaughtering of pigs and other animals and preparation of food items. This custom was observed for Gunai Masbud, and since he died in Madang, there was costs involved in transporting his body to the village.

7.	Exhibit P2 is the affidavit of Yas Alagera, filed on 16 October 2019. He is 66 years old and comes from the Gauyara Clan of Yaimas village, where he is the leader of that clan. Yaimas Village is in the Saidor LLG, Raikos District. Since he has lived in his village all his life, he is well versed with the customs of his village which neighbours Wab village where the Plaintiff is from, and attests to the similarity of their customs. His evidence corroborates Sakli Bingai’s evidence.

8.	Exhibit P3 is the affidavit of Masbud Kuwong, filed on 17 August 2021. He is from Wab Village, Saidor LLG, in the Raikos District of Madang Province.  Gunai Masbud was his only son, and according to his patrilineal custom, he would inherit his land and property in the village. At the time his son died, he was 15 years old and in grade 8 at the Holy Spirit Primary School. The body was kept at the morgue before he was taken to the village. Various expenses were incurred totalling K13,780.00, such as paying for coffin, transport of the body to the village, running the haus krai in Wab and Bilbil villages, and the return trip to Madang after burying his son. Additional monies were spent over the years attending to the case totalling K18,600.00, and for legal fees he paid K6,000.00. Other related expense prosecuting the case added up to K2,170.00. Finally he says he has lost the love and care of his son, especially when he gets old. Most of his expenses had copies of receipts issued from the service provider.

9.	A further affidavit of Masbud Kuwong was filed on 2 September 2022, exhibit P4, where he confirms the costs he incurred in his earlier affidavit (Exhibit P3). He further states that his son was 16 years old (his previous affidavit said he was 15, which I accept) at the time he died, and he was 52, while his wife was 48 years old. He is concerned about who will look after him when he gets old, and he has sleepless nights thinking about his son, and this is having an effect on his daily activities. He believes the Defendant is insured by an insurance firm in Singapore, AON Insurance, through its broker in Papua New Guinea for a maximum insurance payout of K10m.

10.	The third affidavit of Masbud Kuwong was filed on 30 September 2022, exhibit P5. In that affidavit details of the death of his son is provided. His son went to remove the leaf of the betelnut tree that fell on a sagging power line. There was no awareness of the danger of a live powerline. When he went to remove the leaf, 11,000 volts of electricity went through his arm killing him instantly. The loss of his son has caused him endless grief and no amount of money can fill that void. His son is a very bright student and that is attested to by the principal of the school at the time. He was selected to continue on to grade 9 at Tusbab senior school. To fund his studies, K1,810.00 was raised. From the conversation that he had with his son, his son told him that he wanted to be a government lawyer, who would earn a net fortnightly salary of K2,000.00 a fortnight. He would have started employment in 2019. An estimate of K93,600.00 for five years was given, and for the next 30 years, K2,808,000.00 for the support both parents would have received. This estimate does not factor in inflation and any salary increment his son would have received.

11.	Frank Kiup of Galik Estate, of Ward 18, Danben, Madang Province, a former employee of the Defendant, filed an affidavit to support the Plaintiff, filed on 30 September 2022, exhibit P6. He outlines the nature of his responsibilities as the training officer of power linesmen at the Defendant’s training college in Port Moresby (Hohola). He corroborates the Plaintiff’s claim for special damages, general damages, exemplary damages, interests and legal costs. Of particular interests is what he said on exemplary damages:

The Defendant and its technical staff were grossly negligent in the manner in which they failed to provide regular maintenance of the power grid, between the sub-zone at Meiro, sensitive devices all circuit breakers relays, at Balasigo market, the distribution power line protection dropout fuse switches and Danben, drop out fuses switch protecting Bilbill to Bahor primary school power lines. This resulted in the plaintiffs 15 year-old son being electrocuted with the 11,000 power voltage.

PNG power should be punished for this by awarding higher amount of damages under this head of claim.

12.	 Essentially what he says is that the point at which the protection switch is supposed to have been installed, was not installed. Had it been installed, the flow of electricity would have automatically switched off.

Law 
 
13.	Generally, the principles on assessment of damages, which I consider in this matter are stated in the case of Mel v Pakalia (2005) SC790. I quote these principles from that case:

•	The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)
•	Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
•	The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)
•	The same principles apply after default judgment is entered and the trial is on assessment of damages even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)
•	If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)
•	Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)
•	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, National Court, Injia J.)

14.	I apply these principles when deciding the issues I have referred to above, which I believe the facts raise.

Considerations

15.	I have considered the Plaintiff’s pleadings, the evidence and the submissions based on the law.

16.	In the pleadings the Plaintiff claims the following heads of damages:

•	General damages.
•	Special damages.
•	Exemplary damages.
•	Funeral expenses.
•	Solatium.
•	Interests.
•	Costs.

17.	The Defendant has not raised any issue with the pleadings, and have not requested any further and better particulars. In fact they have not participated at all in the proceeding despite notices provided to them.

18.	I have drawn assistance from the case of Wandokun v Leeman (2015) N5950 to determine my approach to assessment of damages. In that case a 10-year-old boy was killed negligently. Various categories of damages were awarded, and others were refused. General damages was assessed taking into account: (a) loss of life expectancy, regarded as an estate claim; (b) future economic loss, regarded as a dependency claim, to compensate the plaintiff for the loss of support his son would reasonably have been expected to provide to the parents (c) the claim for pain and hardship would fail under the common law, however that law was determined to be inapplicable and inappropriate to the circumstances of the country and disregarded. Special damages was awarded for funeral expenses. Nothing was awarded as a solatium, as compensation for the suffering caused to the plaintiff by the death of his son was included in the award for pain and suffering.

19.     I deal now with the first claim of the Plaintiff under general damages. The Plaintiff appears to have lumped general damages together with special damages in his submission. I will therefore separate the two claims, and begin with general damages first, before I consider special damages. 

20.    The first part of general damages is for an estate claim, or loss of life expectancy (s 34(1), Wrongs (Miscellaneous Provisions) Act). In Wandokun the court awarded K8,000.00. This was in 2015. This amount was not disturbed in Motor Vehicle Insurance Ltd v Manduru (2018) SC1750. It is now 10 years since Wandokun, so an increase is warranted. I increase the amount by K2,000.00 and award K10,000.00.  

21.     The second part of general damages is a dependency claim. In Wondokun, a life expectancy of 65 years was given at a rate of K30 per week. K30 was calculated from the date of death to when the father would reach 65 years old. At the time of death, in 2009, the Plaintiff’s son was 15 years old. He would be 21 in 2015. In 2015, the Plaintiff would be 57 years old (he was 52 at the time his son died). This father is still alive in 2025, so he is 67. I will increase the life expectancy to 70 years, meaning a total of 13 years. Calculating K30x52 =K1,560.00 per year. From this figure I multiply by 13 years, giving a total of K20,280.00. 

22.     The third part of general damages is for pain and suffering, which is not allowed under common law, but in Wandokun the common law was deemed inappropriate to Papua New Guinean circumstances. The National Court went on to award K10,000.00.  Wandokun’s position was subsequently confirmed by the Supreme Court in Manduru. Here the Plaintiff claims K20,000.00. The evidence tendered clearly shows a father still coming to terms with the horrific loss of his son, which he dearly loved and had such high hopes for his future. He was his only son, and in their patrilineal society, he would inherit his father’s land in the village and carry on his name. There is no hard and fast rule on the amount to be awarded, and the Defendant is not contesting the claim. I am persuaded that K20,000.00 should be allowed.

23.     Considering the three different components of general damages, the sum awarded is a total of K48,720.00, that is K10,000.00+K20,280.00+K20,000.00= K50,280.00.

24.     Turning now to special damages, this claim is allowed by s 28(2) of the Wrongs (Miscellaneous Provisions) Act specifically providing for funeral expenses. Salika J (as he then was) in Inabari and Another v Sapat and The State [1991] PNGLR 427 explained how this is arrived at. Evidence led by the Plaintiff on this aspect shows a similar customary practice in Madang. The Plaintiff claims K40,620 comprised of the following:

•	K13,780.00 in funeral expense and customary obligations.
•	K18,600.00 in boat fares to attend court sessions.
•	K8,340.00 in out-of-pocket expenses in pursuing the case.

25.     The Plaintiff’s village is only accessible by boat. However, the receipts appear to be standard, suggesting that it was created for purpose of the case and were not corroborated. But accepting that costs were incurred, and applying the principles enunciated in Jonathan Mangope Paraia v The State (1995) N1343, I will discount the claim for contingencies, and award a fixed sum of K20,000.00 for special damages.

26.     The Plaintiff also claims exemplary damages, seeking an amount of K1,000,000.00 as they state that the Defendant and its servants and agents failed to regularly maintain its lines, resulting in the death of the Plaintiff’s son. They submit the Court should penalise the Defendant for its egregious conduct. In Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605, the Supreme Court observed the following on exemplary damages:

This easily covers cases in which a defendant acts illegally and is in breach of clear legislative provisions and other requirements in total disregard and disrespect for the rights and interests of others. This is why as the learned trial Judge noted, “exemplary damages are vindictive and punitive in nature” to punish the party against whom the award is made. It is usually at the discretion of the Court to award such amounts as the Court considers appropriate in exemplary damages having regard to the conduct of a defendant in the ... circumstances of each case. The main purpose of awarding exemplary damages is dual in purposes. The first is to punish and the second is to deter the party against whom the award is made as well as others from engaging in future and further such conduct or behaviour.

27.     In Albert v Aine (2019) N7772, a medical negligence case where a mother lost her fertility through the careless actions of the medical staff, the National Court awarded K100,000.00 in exemplary damages. Exemplary damages is pleaded here and evidence was led to confirm it. The evidence of Frank Kuip a former employee of the Defendant corroborates the claim of the Plaintiff of the Defendant’s failure to carry out standard safety procedure.
 
28.     The standard safety device if it was installed would have automatically switched off the electric current from flowing through a felled powerline. Such failure posed great danger to unweary pedestrians, as was what happened in this case, resulting in the loss of an innocent life. Felled powerlines occur frequently in the country, and the fact that most power poles traverse common walkways demands regular maintenance checks to avoid exposing the public to risk of being electrocuted. An award for exemplary damages as a punitive and deterrent measure is necessary to compel the Defendant to be compliant.

29.     I award 5% of what the Plaintiff claimed and award K50,000.00 in exemplary damages. I do this, because I will award interest from the date the proceedings were filed to the date of judgment, and this will have a punitive effect on the Defendant too. 

30.      All in all, I award K120,280.00, made up of the following:

•	General damages: K50,280.00;
•	Special damages: K20,000.00; and
•	Exemplary damages: K50,000.00.

31.      In the exercise of my discretion, I award interest on the judgment sum of K120,280.00 at 8% pursuant to the Judicial Proceedings (Interests on Debts and Damages) Act 2015 from the date the proceedings were filed to the date of judgment. The proceedings were filed on 25 January 2010, rounded off to the nearest year, would mean a total of 15 years. Calculations would thus be – K120,280.00 x 0.08 =  K9,622.40, multiplied by 15 years, results in a total of K144,336.00 in interests awarded against the Defendant.

32.     Total damages plus interest will therefore be K120,280.00 in damages plus interest of K144,336.00 giving a total judgment sum of K264,618.00.

33.       This case has dragged on for too long, and taxation of costs in Madang does not regularly occur. Considering that only liability was defended, and assessment of damages went without contest, I award 50% of the costs claimed of K100,000.00 and order costs in the fixed sum of K50,000.00.

34.      All things considered, the final orders I make are:

1.	The Defendant shall pay the Plaintiff a total judgment sum of K264,618.00, composed of general damages, special damages, exemplary damages and interest at 8% from the date the proceedings were filed to the date of judgment.
2.	The Defendant shall pay the Plaintiff’s costs in the fixed sum of K50,000.00.
3.	The matter is considered determined, and the file is closed.
4.	Time for the entry of the orders is abridged which shall take place as soon as the formal orders are endorsed.    
Judgment and orders accordingly.

Lawyers for the plaintiff: Pilissa Lawyers