Motor Vehicles Insurance Ltd v Manduru [2018] PGSC 93; SC1750 (18 December 2018)

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BETWEEN
MOTOR VEHICLES INSURANCE LIMITED
Appellant

AND
ROY MANDURU
Respondent

PRACTICE & PROCEDURE - Appeal – Without leave as trial on assessment of damages considered final in nature

DAMAGES – Measure of damages – Conventional estate claim of K3000 considered inappropriate and unrealistic – Need to increase in view of declining value of Kina to K8000

DAMAGES – Dependency claim – Dependency claim by surviving parents – Assessment of anticipated loss of support or dependency – Appropriate to the circumstances of the country

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645
Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580
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 (2006) N3106
Koko v MVIT [1988] PNGLR 167
Kolaip Palapi v Sergeant Poko [2001] N2274
Komba v Duwaba [2006] PGNC 218 N2979
Kosam v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 557; [1993] PNGLR 481 N1187 (by Woods J);
Motor Vehicles Insurance Limited v Evelyn Api [2015] SC1406 (24/2/2015)
Naipari v Komba Napiri v Independent State of Papua New Guinea [2006] PNGNC 216
None v MVIT [1990] PNGLR 561
Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC; SC 694
Paula v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 4; N1032
Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78
Robert Wandokun v Manase Leeman and Madang Provincial Government [2015] N5950
Roy Manduru v MVIL, WS No. 2008 of 2005, 01/11/2012-unreported)
Roy Manduru, For and on behalf of Barnabas Manduru (Deceased) v Motor Vehicles Insurance Limited [2016] N6509
Tapi v MVIT [1990] PNGLR 568
Wallbank and Minifie v The State [1994] PGLR 601; [1994] PNGLR 78 SC472

1. BY THE COURT: The appellant appeals against the whole of the judgment and orders of Cannings J, given on 28 October 2016 in Waigani , National Capital District, whereby his Honour conducted trial on assessment of damages in proceeding W.S No. 2008 of 2005, a matter between Roy Manduru v Motor Vehicles Insurances Ltd.

2. This appeal lies without leave as the Orders of the National Court were final in nature.

3. The respondent, Roy Manduru succeeded at an earlier trial in establishing liability in negligence against the appellant, Motor Vehicles Insurance Ltd, regarding the death of his 17 year old son, Barnabas Manduru on 23 September 2002. Barnabas was a grade 10 student at Badihawga Secondary School in Port Moresby. (Roy Manduru v MVIL, WS No. 2008 of 2005, 01/11/2012, per Gabi J, unreported.)

4. The plaintiff, now respondent yet again succeeded in securing certain orders in a trial on assessment of damages on 28 October 2016 ( Roy Manduru, For and on behalf of Barnabas Manduru (Deceased) v Motor Vehicles Insurance Limited (2016) N6509) and obtained the following orders:-

6. We make mention at the outset that only the Appellant was present and we received arguments. On their part the respondent made no appearance, notwithstanding the fact that the trial set for today was by consent emanating from directions hearings on 13 August 2018.

7. The Appellants grounds 3 & 4 are inter related and will be discussed together. As to appeal ground 3, this ground is easily dismissed as that amount of K675.00 was awarded by the primary Judge based on no contest and concession. Appeal grounds 3 and 4 emanate from the same head: Special Damages. Under that head the respondent/plaintiff claimed three types of damages under this head, (a) funeral expenses: K37,556.00; (b) personal expenses in prosecuting the claim: K650; and (c) K3,000.00 for bus fares spent over a period of more than 10 years, travelling between his residence at Gordons to the office of the Public Solicitor at Boroko. The primary Judge made no awards for bus fares as they were not pleaded in the amended statement of claim filed on 23 August 2011.

8. The respondent/plaintiff claimed K37, 556.00 as funeral expenses under the head Special Damages. The primary Judge in his deliberations instead awarded K10, 000.00 for special damages and apportioned K9, 325.00 for funeral expenses and K675.00 for personal expenses. Clearly on the face of court records, appeal grounds 3 and 4 therefore do not form part of the subsequent awards under this head, save only K10, 000.00 arrived at on the strength of the following cases: (Jonathan Mangope Paraia v The State (1995) N1343; Kolaip Palapi v Sergeant Poko (2001) N2274).

9. The alleged awards said to be made in the two grounds (3 & 4) in our view were taken out of context by the Appellant. Firstly the primary Judge made no specific orders as to the two amounts now appealed against nor did he contemplate a separate head save under the head Special Damages only. The awards of K675.00 remain distinct from the award for costs and are therefore not doubled-award as argued by the Appellant. In any event the two amounts or awards argued to be made by the primary Judge did not form part of the final awards during assessment hearing.

10. As regards appeal ground 4: Funeral expenses, cremation, the cost of erecting headstones and such like expenses, Courts can order reasonable awards based on ss. 25 & 28 Wrongs (Miscellaneous Provisions) Act Ch No. 297. Section 28 (2):

“In an action referred to in Section 25, 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.”

11. The primary Judge awarded a reasonable sum of K9, 325.00 for funeral expenses under the head of special damages based on the case of 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 usually generated by a death in Papua New Guinea. For instance “haus kry” activities before and after the death, the cost of flying the body home, airfares etc. Ones standing and status in his community also dictates the level of contributions from his clan, village and or tribe. It is generally accepted that in all deaths in PNG, vast amounts of monies are collected emanating from customary obligations towards funeral and related expenses. And in almost all cases, the conventional method of keeping or producing invoices, receipts etc. of all funeral related expenses are rare in a PNG context. In the absence of such precise evidence on expenses, Courts have done the best they could over time to address this situation. (Jonathan Mangope Paraia v The State (1995) N1343)

12. We are therefore of the view that the award of K9,325.00 was quite reasonable, if not well below funeral expenses confronting Papua New Guineans this day and age. We are satisfied that the award was made on sound bases, taking into account funerals in PNG context and in conformity within the spirit of the principal Act.

14. Might we add in passing that it is quite disturbing to note that the Appellant has misled this Court into believing that the Supreme Court case of Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC; SC 694 (Amet CJ, Sheehan & Kandakasi JJ) stands for the proportion that “whoever alleges must prove with credible admissible evidence,” in support of his arguments in appeal ground 4. Our reading of the full judgment and the head notes do not attest to this proportion but were made obiter dicta. We are not convinced that the Supreme Court case referred to us was on point and have disregarded it.

15. As to appeal ground 1 the Appellants argue that the sanctity of case precedents was violated when the primary Judge awarded damages of K8,000.00 for estate claim, instead of the conventional amount of K3,000.00.( Wallbank and Minifie v The State [1994] PGSC 21; [1994] PNGLR 78 SC472.).

16. The reasons given by the primary Judge for departing from the conventional amount of K3, 000.00 were analogous to those used 29 years ago in the Wallbank and Minifie v The State case: fall in the value of money since 1978. (K3, 00.00 increase to K8000.00).

17. In the first case of Kembo Tirima v Angau Memorial Hospital Board (2006) N3106, (Cannings J) the primary Judge said and we quote:’

“I bear in mind what Mr Kumura says about departing from Supreme Court precedent. However, the sum of K3, 000.00 is only a guideline. Twelve years have passed since Wallbank was decided. I consider that a more appropriate figure would now be K6, 000.00. This will be awarded to the plaintiff as the surviving spouse, not the children.”

18. In another case decided by Cannings J: (Robert Wandokun v Manase Leeman and Madang Provincial Government (2015) N5950), 9 years later the estate claim was again increased: We quote:

“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. It is time to increase it again. The declining value of the Kina and the interests of justice require that in this case I award K8, 000.00.”

19. As oral submissions progressed, it became apparent that the resolution of this ground turned not on answering the question but rather on the clear understanding on the consequences of not following superior court case precedents. It is now necessary to see what are binding precedents? Under the doctrine of stare decisis, a lower court must honour the findings of law made by a higher court that is within the appeals path of cases the court hears. Although courts are obligated to follow precedents, sometimes a court will depart from the rule of precedents if it decides that a given precedent should no longer be followed if a court decides that a precedent is simply incorrect or that technological or social changes have rendered the precedent inapplicable, the court might rule contrary to it.

20. As can be seen from the two cases referred to above the primary Judge has departed from a 29 year old case precedent he cited as most inappropriate and unrealistic. Besides those reasons the declining value of the Kina and the interests of justice were other reasons used by the primary Judge, departing from the conventional award of K3, 000.00.

21. We are minded that since 1979 to 2018, a space of 39 years, there has not been an increase in estate claim awards. We affirm the view taken by the primary Judge in departing from the 39 year old case precedent and also endorse his reasons for doing so. We now find that there is justification and the need to vary the awards in view of the declining value of the Kina. We affirm the decision of the primary Judge in awarding K8, 000.00 for loss of expectation of life.

23. As to appeal ground 2, it is argued that the claim for loss of support or dependency has not been pleaded in the Statement of Claim filed on 22 September 2005 and secondly the assessment was made based on assumptions and speculative in assessing loss of future pecuniary support or dependency without legal basis.

The authorities are quite clear that claims for special damages are not recoverable unless pleaded. See the case Hayward v Pullinger & Partners Ltd [1950] 1 All ER 581 per Devlin J:

"It is conceded by counsel for the plaintiffs, and I think rightly, that he cannot recover in respect of any special damage unless that special damage is pleaded.... It is, of course, extremely common, when damage is alleged in general terms, for an application to be made to obtain particulars of the special damage, if any, relied on, but there can be no obligation to ask for such particulars, and I think the true position is that, unless they are contained in the statement of claim, evidence leading to damage in respect of which damages are claimed cannot technically be relied on at the trial."

24. Where does that place the Respondent than?: Discussions between the primary Judge and Counsel in the court below on this subject revealed that it was not altogether correct to say that respondent failed to plead under this head. It was conceded during trial that the respondent pleaded “loss of life” instead of” loss of expectation of life”. Having satisfied himself that the plaintiff/respondents claim as pleaded was one of the same under the circumstances proceeded to make assessment. In our view this line of argument is flawed as it is driven by a play of words and lacking substance.

25. The effect of the assessment made based on assumptions and speculative in assessing loss of future pecuniary support or dependency without legal basis? The appellant argued that nothing ought to have been awarded. The respondent argued that K273, 000.00 should be awarded as a dependency claim.
The thrust of the plaintiffs argument on point was that should this court affirm the views of the primary Judge in awarding damages to compensate parents for the loss of financial support that would reasonably be expected to have been provided by their child, had the child not died, a floodgate of such claims would be opened up. For the moment in this jurisdiction two (2) schools of thought have been evolved over time with opposing views. We tabulate them here for ease of reference:

Parents ought to be regarded as dependents of children and should be awarded dependency claims.

(Age of cases 12 -3 years

Parents ought not to be regarded as dependents of children, therefore should not be awarded dependency claims.

(Age of cases 30 - 21 years)

1. Robert Wandokun v Manase Leeman v Madang Provincial Government (2015) N5950 (by Cannings J).

2. Komba v Duwaba [2006] PGNC 218;N2979 (by Cannings J);

3. Napiri v Independent State of Papua New Guinea [2006] PNGNC 216; (by Cannings J);

1. Andale More and Manis Andale v Henry Tokam and The State (1997) N1645 (by Injia J);

2. Wallbank and Minifie v The State [1994] PGLawRp601; [1994] PNGLR 78 SC472 (by Los Brown Sakora JJ);

3. Kosam v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 557;[1993] PNGLR 481 N1187 (by Woods J);

4. Paula v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 4; N1032 (by Woods J);

5. None v MVIT [1990] PNGLR 561 (by BruntonJ);

6. Tapi v MVIT [1990]PNGLR 568 (by Woods J);

7. Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGNC 92; [1990] PNGLR 580; N953 (by Hinchliffe J);

8. Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167 (by Bredmeyer J);

26. A quick survey of the opposing case authorities listed above and ages date back to years 30 – 21 years latest. Whereas the case authorities relied on by the primary Judge were those he deliberated upon. The latest one being in age and year 12 – 3 years the latest. It is obvious that he has relied on his cases which are fairly current, whether he sat on all those cases is of no relevance. All that matters is they still remain fairly current. Unless there are any case authorities precluding him for exercising his discretion which case authorities to rely on, it was perfectly within his right to decide and employ the principles the way he did in those cases. Besides their fears on the opening of flood gates, if the primary Judges views were to be adopted, no convincing arguments were put before us. We see nothing wrong with the primary Judges exercise of discretion.

27. The tenor and spirit of those case authorities declining awards in dependency actions are best summed up in Koko v MVIT [1988] PNGLR 167: That the plaintiff does not get compensation for the loss of a child’s love or affection. In the case of Robert Wandokun v Manase Leeman (2015) N5950 Cannings J said:

“I find that the common law approach is unjust and callous and inappropriate and inapplicable to the current circumstances of Papua New Guinea. It does not comply with the requirements for its application under Section 4(3) of the Underlying Law Act and must be disregarded. It is consistent with the customary laws of Papua New Guinea for a parent whose child has died due to the wrongful actions of another person to be compensated for the emotional loss and grief he has incurred – not just the monetary losses – as a direct result of those wrongful actions.”

“Whether a person killed is a relative or any enemy has special significance in Papua New Guinea. The notion of payback is still practised in many parts of the Highlands. The significance is that where a person other than a relative is killed, the victim’s relatives would pay back by seeking to kill a member of the offender’s family....In a sense, a killing of a relative is self inflicting in that, a killer may lose a warrior, a worker or contributor to bride price or even a helper...” (Emphasis ours).

29. We would adopt and apply the sentiments expressed by Cannings J in the above case as they remain most appropriate to the circumstances of PNG today. It is generally accepted that a death and loss in any family is the loss also for his clan and or tribe. The whole clan or tribe suffers and mourns. That grieving parents ought to be awarded damages for the loss of a child’s love or affection including reasonable future dependency claims.

30. As to the award of K273, 000.00 we acknowledge the difficulties faced by the trial Judge in the absence of actual evidence. The primary Judge agreed with Ms Rumints that it was difficult for the court to find, on the evidence available, that the deceased would definitely have become a doctor. He however rejected that part of the argument and made the orders the way he did on the strength of the plaintiff’s testimony about his son’s ambitions which he found to be very sincere and convincing.

31. We are loathe to disturb the primary Judges findings and his assessment as they hinge around his observations on credibility and demeanour of witnesses that came before him. The trial Judges reasoning for findings for the plaintiff/respondent on his claim for dependency were clearly set out in his judgment. Put differently the primary Judges exercise of discretion ought to be respected unless there is compelling evidence necessitating our intervention. In view of the child who was still in high school, and yet to overcome the hurdles of graduating from high school, graduating from a tertiary education and eventually becoming a medical doctor, we consider that such contingencies pose real challenges. Notwithstanding the existence of three National Court cases in which awards have been set at K20 and K30 respectively per week, we consider that the increase to K60 per week unreasonable. We are of the view that the court below placed too much emphasis on the life expectancy of the plaintiff and the deemed age when his son Barnabas would be in a position to provide financial support. We consider that a fair assessment to be K16, 770.00 or half what was ordered by the Court below.

32. Due to the foregoing reasons we partly uphold this ground of appeal and substitute the award under this head to K16, 770.00.

33. We are compelled to echo the sentiments expressed by the primary Judge of a closure since it has taken almost 16 years since the death of the respondent’s son in 2002. We believe that the sentiments expressed in the following case equally applicable to this case and urge compliance and closure. Motor Vehicles Insurance Limited v Evelyn Api [2015] SC1406 (24/2/2015).

"6. There are other aspects of this case that warrant remark. First we note that the respondent’s claim, without disrespect to her, is a modest one, causing us to wonder why the appellant would go to such lengths to avoid meeting the merits of her claim. Secondly, the grounds of appeal in the notice of appeal are based on alleged errors in the exercise of discretion and do not disclose any obvious jurisdictional error by the National Court. "

7. Thirdly, the appellant is a well-resourced litigant compared to the respondent, who appears to be a village woman of limited means. This gives rise to the appearance that by unnecessarily prolonging the appeal, the appellant could be engaging in oppressive conduct. We make no finding against the appellant in that regard. However, we caution against the spectre of oppressive conduct by parties in as dominant a position as the appellant in this case viz-a-viz a single person of limited means. We consider that there is a special obligation on an institutional litigant to prosecute appeals with due diligence. All these factors reinforce our conclusion that the we should uphold the application for dismissal and dismiss the appeal."

2. Appeal ground two (2) is partly upheld and the original award reduced to K16, 770.00,

5. The appellant will pay the respondent costs of an incidental to the appeal.
________________________________________________________________
Manase & Co. Lawyers: Lawyers for the Appellant
Public Solicitor: Lawyers for the Respondent

Supreme Court of Papua New Guinea

Motor Vehicles Insurance Ltd v Manduru [2018] PGSC 93; SC1750 (18 December 2018)