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Moini v The State [1977] PNGLR 39 (23 February 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 39 - Elizabeth Lauwasi Uguwa Moini v The State 

[1977] PNGLR 39

N81

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ELIZABETH LAUWASI UGUWA MOINI

V

THE GOVERNMENT OF PAPUA NEW GUINEA

Goroka & Waigani

Williams J

6-8 September 1976

23-24 September 1976

23 February 1977

NEGLIGENCE - Fatal accidents legislation - Essentials of cause of action - Motor vehicle accident - Whether driver negligent - Death of child pedestrian - Payback killing of driver and passenger by by-standers - Legal causation of payback - Novus actus interveniens - Whether death of plaintiff’s husband (passenger) reasonably foreseeable.

NEGLIGENCE - Fatal accidents legislation - Damages - Basis of award - Plaintiff widow aged 28 - Two children aged 5 and 2 - Deceased teacher with Education Department aged 32 - Award of K35,000 of which K3,300 and K4,000 apportioned to children.

DAMAGES - Fatal accidents legislation - Particular awards - Plaintiff widow aged 28 - Two children aged 5 and 6 - Deceased teacher with Education Department aged 32 - Award of K35,000 of which K3,300 and K4,000 apportioned to children.

In an action brought under the provisions of the Law Reform (Miscellaneous Provisions) Act 1962 for damages on behalf of a plaintiff widow and the children of the marriage, it appeared that the plaintiff’s husband was travelling as a passenger in a motor vehicle owned by the Government of Papua New Guinea, when the vehicle became involved in an accident near Goroka in which a child pedestrian was killed, and immediately after the accident, the plaintiff’s husband and the driver of the motor vehicle were murdered in a payback killing by irate villagers;

Held

(1)      The only reasonable inference to be drawn from the evidence was that the accident occurred as a result of some fault on the part of the driver of the motor vehicle;

(2)      The accident could be attributable only to excessive speed in the circumstances or negligent failure of the driver to observe pedestrians on the road;

(3)      On the balance of probabilities the accident resulted from the failure of the driver to observe a proper standard of care in the control and operation of the vehicle;

(4)      Immediately following the accident retaliatory action was taken by a group of angry and distressed villagers against the occupants of the motor vehicle, and as a result of this action the plaintiff’s husband died.

(5)      The test to be applied in ascertaining whether the killing of the plaintiff’s husband was a reasonably foreseeable consequence of the breach of the duty of care owed by the driver of the motor vehicle to his passenger was whether or not a reasonable man should have foreseen that failure on his part to maintain proper control and management of the motor vehicle resulting in death or injury to another user of the road would be likely to bring about violent retaliatory action against himself and other occupants of the vehicle at the hands of the kinsmen of the person killed or injured.

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] UKPC 1; [1961] A.C. 388 followed and applied.

(6)      Deliberate and unlawful acts by third parties following a negligent act do not absolve the negligent party if it can be shown that the acts of the third parties are such as would be known by the ordinary reasonable man as to be a likely consequence of a negligent act.

Chapman v. Hearse [1961] HCA 46; (1961) 106 C.L.R. 112 followed and applied. Haynes v. Harwood, [1935] 1 K.B. 146, Stansbie v. Troman [1948] 2 K.B. 48, Dorset Yacht Co. Ltd. v. Home Office [1970] UKHL 2; [1970] 2 W.L.R. 1140, Weld-Blundell v. Stephens [1920] A.C. 956 referred to.

(7)      In the circumstances the question to be asked was whether a person in the position of the driver would know whether negligent driving causing death or injury to a villager in the Eastern Highlands of Papua New Guinea would be likely to set in motion violent physical retaliatory action against the occupants of the vehicle driven by him.

(8)      Upon the evidence and mindful of the considerable notoriety of violent retaliation at the scene of a motor vehicle accident to anyone familiar with the customs of the country and particularly in the Highlands, there could be no doubt in the circumstances that violence of the kind that actually occurred was a foreseeable consequence of negligent driving.

(9)      Accordingly the plaintiff was entitled to damages.

(10)    Damages should be assessed on the basis of the loss of economic or material advantages rather than the plaintiff’s need for support.

Mary Gugi v. Stol Commuters Pty. Ltd. [1973] P.N.G.L.R. 341 followed.

(11)    The plaintiff’s husband being a teacher with the Education Department, aged 32, and the plaintiff being aged 28 at his death with children aged five and two, of a six year marriage, and the plaintiff and the children having returned to her village, damages should be assessed at K35,000 of which the sums of K3,300 and K4,000 should be apportioned to each of the children respectively.

Trial

This was an action for damages brought under the provisions of the Law Reform (Miscellaneous Provisions) Act 1962, by a plaintiff widow on behalf of herself and two infant children of her marriage with the deceased, who died following a motor vehicle accident and in a payback killing.

Counsel

M. F. J. Campbell and M. C. Ridsale, for the plaintiff.

J. A. Ross and D. W. Baker, for the defendant.

Editorial Note

An appeal to the Supreme Court of Justice was dismissed on 29th May, 1978.

Cur. adv. vult.

23 February 1977

WILLIAMS J: The plaintiff is the widow of one Peter Claver Moini deceased and sues under the provisions of the Law Reform (Miscellaneous Provisions) Act 1962 for damages for herself and the children of her marriage with the deceased, arising from a motor vehicle accident. The accident occurred on the 24th December, 1972 on the Highlands Highway a short distance from the town of Goroka.

The plaintiff alleges that her deceased husband was a passenger in a Government owned motor vehicle driven at the relevant time by one Luke Rovin in the course of and within the scope of his employment by the defendant. The statement of claim further alleges that the vehicle was negligently driven by Rovin causing it to leave the Highway and overturn. It is further alleged, in paragraph 7 of the statement of claim, that “as a result of the said accident wherein a child pedestrian, Linda Sapulo, was struck and killed by the said motor vehicle a disturbance or riot broke out and in the course of the disturbance or riot the said Peter Claver Moini was killed.”

In its statement of defence the defendant denied that Rovin was the driver of the vehicle and that Moini was a passenger in it. It was also denied that, at the relevant time, the vehicle was being driven in the course of and within the scope of Rovin’s employment by the defendant. It was admitted that the vehicle was travelling on the Highlands Highway from Goroka in the direction of Lae when it ran off the road and turned over, but it was denied that the overturning of the vehicle was caused by the negligence of Rovin.

I have already stated the contents of paragraph 7 of the statement of claim. Paragraph 7 of the statement of defence was in the following terms:

“It is admitted that Linda Sapulo was struck and killed by the said motor vehicle. It is admitted that a disturbance or riot broke out and that Peter Claver Moini was killed during its course. The defendant contends that it was not reasonably foreseeable that the said accident would result in a riot or disturbance and in the death of the said Peter Claver Moini.”

However, at the commencement of the trial counsel for the defendant sought leave to delete paragraph 7 of the statement of defence and to substitute a new paragraph in the following terms:

“Save that the defendant admits that a child pedestrian Linda Sapulo was struck and killed by the said motor vehicle and that the said Peter Claver Moini died on the 24th December 1972 the defendant denies each and every allegation contained in paragraph 7 of the Statement of Claim.”

At the trial I allowed this amendment.

Further, at the commencement of the trial, counsel for the defendant made the following admission of fact:

“That Luke Rovin was at all material times acting in the course of and within the scope of his employment with the defendant.”

In consequence the issues arising for determination, as I comprehend them, are as follows:

(1)      Was the driver of the vehicle negligent?

(2)      Was the vehicle at the relevant time being driven by Rovin?

(3)      As a result of the accident and the killing of the child Linda Sapulo did a riot or disturbance break out in the course of which Moini was killed?

(4)      Was the killing of Moini a reasonably foreseeable consequence of negligent driving?

I now propose to consider the evidence relating to the question of negligence as it is upon this issue that the whole of the plaintiff’s case is founded.

[His Honour then considered the evidence.]

In my view the only reasonable inference to be drawn from the evidence is that the accident occurred as the result of some fault on the part of the driver. As has been said, it was being driven at a speed estimated by Mr. Brown to have been 55 m.p.h. The vehicle was approaching a group of pedestrians, a situation which called for the exercise of a high degree of care on the part of the driver. Anyone familiar with driving on Highlands roads would know that it frequently occurs that groups of pedestrians are encountered, the movements of whom, on the approach of a vehicle, are often unpredictable. In consequence, caution is required on the part of a driver. It appears from Exhibit 1 (an aerial photograph of the area in the vicinity of the place where the accident occurred) that the vehicle, travelling from Goroka, would have to negotiate a curve a short distance back from the place where it was found overturned. There are three reasonable inferences only which seem to me to be open upon the evidence. The first is that the driver lost control of the vehicle rounding the curve by reason of excessive speed. The second is that if he negotiated the curve without difficulty the child Linda, and perhaps others, moved into his path and he was unable, through the speed of the vehicle, to meet this situation. The third is that he failed to observe the presence of pedestrians on the road.

In consequence it is my view that the accident can be attributable only to excessive speed in the circumstances or the negligent failure of the driver to observe pedestrians on the road. I, therefore, hold that on the balance of probabilities the accident resulted from the failure of the driver to observe a proper standard of care in the control and operation of the vehicle.

I pass now to the issue concerning the identity of the driver of the vehicle at the relevant time. First, it should be observed that there is no direct evidence on this question. Neither Brown, Martin or Sapulo observed the driver of the vehicle. Evidence was given that Rovin had a licence to drive Government vehicles and that Moini did not, although he owned a private vehicle. There was also evidence that Rovin had on a weekly allotment to him, without a driver, the vehicle involved in the accident and that Moini did not have a Government vehicle on issue to him. There was also evidence that Rovin was frequently seen driving the vehicle involved in the accident in and around Goroka and that Moini had not been seen driving a Government vehicle in that area.

Inspector Alfred Daniel, who at the time of the accident was stationed in Goroka, was a friend of both Rovin and Moini. He said that he had seen Rovin early in the morning of the 24th December, 1972 when it was arranged that they visit a mutual friend at Kamaliki some six miles along the Highlands Highway in the direction of Lae. It was arranged that Rovin call for him at about 2 p.m. that day. Rovin and Moini arrived at the Police Station that afternoon in Rovin’s Government vehicle. Daniel said that he spoke briefly to them outside the Police Station and that he told them that he would not go with them but would follow on in his own vehicle later. He also gave evidence that when the vehicle called at the Police Station Rovin was in the driving seat and that after his short conversation with them the vehicle drove away with Rovin as the driver. Daniel said that they called at the Police Station at about 2 p.m. He said in cross-examination that he assumed it was about 2 p.m. when they arrived as this was the arranged time in their conversation earlier that morning.

The plaintiff said in evidence that Rovin called at the residence of her husband and herself on the afternoon of the 24th December, 1972. He arrived in his Government vehicle. He left in the vehicle with her husband at 2.30 with Rovin driving. She said that she recalled the time because her watch had stopped and her husband had adjusted it just before leaving.

It will be recalled that Daniel’s evidence was that Moini and Rovin called at the Police Station at about 2 p.m., whereas upon the evidence of the plaintiff Rovin did not pick up her husband until 2.30 p.m. However, it seems to me that this discrepancy in times may well be explained by the fact that Daniel fixed the time at 2 p.m. only because that was the time which had previously been appointed for the others to call for him. The actual time of their arrival at the Police Station may well have been later than the appointed time. I advert to this discrepancy in times because it was argued by counsel for the defendant that the evidence of the identity of the driver of the vehicle at a time antecedent to the accident was not evidence of the identity of the driver at the time of the accident, particularly in the light of Daniel’s evidence which placed Rovin as the driver of the vehicle at least three-quarters of an hour before the accident.

It is said in Cross on Evidence (Australian ed.) at p. 36 under the heading “Examples of Circumstantial Evidence, Evidence of Identity and Res Inter Alios Acta”:

“... the argument for the reception of this kind of evidence is that the occurrence of an act, state of mind or state of affairs in the past justifies an inference that the act was done, or state of mind or affairs existed at the moment of time into which the court is inquiring.”

A statement to similar effect is made in Phipson on Evidence (10th ed.) para. 292.

Both learned authors cite a number of authorities for this proposition. The one most apposite to the present case is Beresford v. The Justices of St. Albans[xlviii]¹. In that case the defendant was convicted of driving a vehicle at a speed in excess of the permitted speed. Two constables were stationed at the seventh milestone from St. Albans and two other constables at the third milestone, a distance of four miles. The car was estimated to have traversed the space at the rate of 20 m.p.h. The car was stopped at the third milestone and the defendant was driving it. It was contended that this was not evidence that the defendant had driven the car over the whole distance as alleged. It was held, however, that this was some evidence of the identity of the driver of the vehicle over the whole distance and that there being no other evidence the Justices were justified in convicting the defendant.

The evidence of the plaintiff placed the departure of Rovin and her husband shortly after 2.30 p.m. I see no reason to doubt this as Daniel’s evidence that they left the Police Station at about 2 p.m. was fixed not by any observation of the actual time but by reference to an arrangement made earlier that day. Upon the evidence of Brown the accident occurred at about 2.45 p.m. Thus there was only a very short time involved between the time of leaving the Police Station and the occurrence of the accident. The evidence that Rovin was driving when the vehicle left the Police Station, coupled with the evidence that the vehicle was one which was allocated to him by the Government and one which he was often seen driving, makes it appear to me more probable than not that the vehicle at the time of the accident was still being driven by Rovin. There was no evidence which suggests that the journey was broken after departure from the Police Station and before the arrival of the vehicle at the accident scene.

I turn now to the third issue raised, namely, whether as a result of the accident and the killing of the child Linda a riot or disturbance broke out in the course of which Moini was killed.

Upon the evidence of Mr. Brown he saw no occupants of the vehicle at the point where the vehicle overturned. Brown said that he escorted Linda’s mother to the village and put her in the care of relatives. He then hurried back to the Mission to get his car in order to report the matter to the police as quickly as possible. A lot of people were running through the Mission and he gained a general impression of vehemence and it was his belief that there would be “payback” action taken against the occupants of the vehicle. He travelled to the Police Station via the back road and, not far from the Mission, he saw two men, one in a crouching position and the other standing over him. He saw a group of about fifteen men spread out in semi-circular fashion around the area in which he saw the two men. He continued on to the Police Station and returned about fifteen to twenty minutes later when he showed the police where he had seen the two men. On arrival at this spot he saw the body of a man. The man was not known to him but he identified the man by reference to a photograph, Exhibit 3. This photograph was identified by Inspector Daniel as being a photograph of the body of Moini.

According to the evidence of Martin, he, immediately following the accident, ran back up along the back road to the rear of the Mission station. He then turned off the road behind the Mission station. He said that he did this because he thought that the occupants of the car would have run that way. Other men accompanied him. He got to a point near a toilet when he saw some men fighting a man. The man being attacked was unknown to him but he said he recognized him as a Buka man. A group of about five men were striking the Buka man with their hands. He also fought the Buka man. Asked why, he answered that when he heard people calling out that the car had struck a little girl he thought that he “must go and fight this man the driver of the car.”

Sapulo in his evidence said that after the accident he ran towards the airstrip along a small track leading off the Highway. He said he did so because he thought the occupants of the car would be running that way. At this time plenty of people were shouting that the car had killed the little girl. He said he ran to the edge of the airstrip and was waiting to see if anyone emerged from the bush. A man came from the bush. He held this man and they fell over. He hit this man and a number of other men did so also. He said he did not know the man but that he recognized him as a Buka man and identified the man concerned as being the man shown in Exhibit 3.

Inspector Daniel said that on being informed of the accident he went to the scene with other police. About five yards from the road he saw the body which he identified as being the body of Rovin. About one hundred feet away he saw another body which he identified as being that of Moini. Each body had head wounds and each appeared to be dead.

There is other evidence concerning the events which occurred immediately following the accident. I do not think it necessary, however, to advert to it because the evidence to which I have just referred clearly indicates to my mind that immediately following the accident retaliatory action was taken by a group of angry and distressed villagers (which included the father of Linda) against the occupants of the vehicle, and that as a result of this action Moini and Rovin died.

It is now necessary to consider the fourth issue raised, that is, was the killing of Moini a reasonably foreseeable consequence of the breach of the duty of care owed by Rovin as the driver of the vehicle to Moini. This consideration flows from the judgment of the Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound)[xlix]². In that case the general principle laid down was that the essential factor in determining liability for the consequence of a tortious act of negligence is whether the damage is of such a kind as the reasonable man should have foreseen. Liability does not depend solely on the damage being the “direct” or “natural” consequence of the precedent act; but if a man should not be held liable for damages unpredictable by a reasonable man because it was “direct” or “natural”, equally he should not escape liability however “indirect” the damage if he foresaw or could reasonably have foreseen the intervening events which led to its being done. Foreseeability is thus the effective test.

Applying these principles to the present case the question which arises is whether or not a reasonable man should have foreseen that failure on his part to maintain proper control and management of the vehicle resulting in death or injury to another user of the road, would be likely to bring about violent retaliatory action against himself and other occupants of the vehicle at the hands of the kinsmen of the person killed or injured.

The evidence in this case shows that there intervened between the negligent driving of Rovin and the death of Moini deliberate and wrongful acts by third parties.

There is a considerable body of authority relating to the effect of liability on an original tortfeasor of subsequent intervening acts. The topic was considered by the Full Court of the High Court of Australia in Chapman v. Hearse & Another[l]³. In that case the Court recognized that wrongful intervening conduct may be reasonably foreseeable. It was also held that to establish the prior existence of a duty of care with respect to a plaintiff who is subsequently injured as a result of a sequence of events following a defendant’s carelessness, it is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained were reasonably foreseeable; it is sufficient if it appears that injury to a class of persons of which he was one might reasonably have been foreseen as a consequence. In Chapman v. Hearse & Another[li]⁴ the Court was concerned with intervening acts of negligence. In the present case I am concerned not with intervening acts of negligence but with deliberate acts of commission by third parties.

In Haynes v. Harwood[lii]⁵ the plaintiff, a Police Constable, was on duty inside a Police Station in a street in which at the material time there were a large number of people including children. Seeing the defendant’s run-away horses with a van attached coming down the street he rushed out and eventually stopped them sustaining injuries in respect of which he claimed damages for negligence. In the course of his judgment Greer L.J. said, at p. 156:

“If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence ... If it is the very thing which ought to be anticipated by a man leaving his horses, or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act.”

This passage has been quoted with approval in a number of other cases.

In Stansbie v. Troman[liii]⁶ a contractor was carrying out decorations to a house. He left the house and in breach of his duty to the owner left it unlocked. During his absence a thief entered the house and stole property from the householder. It was held that the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that did happen. The reason why the decorator owed a duty to the householder to leave the premises in a secure state was because otherwise thieves or dishonest persons might gain access to them and it was a direct result of the negligence of the decorator that the thief entered the premises and stole the goods.

Reference should also be made to Dorset Yacht Co. Ltd. v. Home Office[liv]⁷. In that case some Borstal boys were working on an island under the control and supervision of three officers employed by the Home Office. They left the island at night and cast adrift and damaged the plaintiff’s yacht which was moored off shore. It was held that the Borstal officers owed the plaintiff a duty to take such care as was reasonable in all the circumstances to prevent the boys under their control from causing damage to the plaintiff’s property if that was a happening of which there was a manifest risk if they neglected that duty. It was said by Lord Reid at p. 1149:

“These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the ‘very kind of thing’ which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these Borstal officers ought to have seen to be likely.”

Reference should here be made to the case of Weld-Blundell v. Stephens[lv]⁸. That case was concerned with the negligent publication of libellous matter. Lord Sumner in his judgment at p. 986 said:

“In general (apart from special contracts and relations and the maxim respondeat superior), even though A. is in fault, he is not responsible for injury to C. which B., a stranger to him, deliberately chooses to do. Though A. may have given the occasion for B.’s mischievous activity, B. then becomes a new and independent cause ... Perhaps one may be forgiven for saying that B. snaps the chain of causation; that he is no mere conduit pipe through which consequences flow from A. to C., no mere moving part in a transmission gear set in motion by A.; that, in a word, he insulates A. from C.”

It should, however, be observed that the judgment of Lord Sumner in Weld-Blundell v. Stephens[lvi]⁹ was the subject of criticism by the Judicial Committee of the Privy Council in The Wagon Mound (No. 1)[lvii]¹⁰. In Salmond on Torts, 16th ed., p. 566 it is said:

“Salmond was therefore reluctant to accept Lord Sumner’s dictum as a correct statement of the law, and in view of the severe criticisms passed upon that dictum by the Judicial Committee in The Wagon Mound (No. 1) his reluctance would seem to have been fully justified. There are undoubtedly many decisions which are expressed to rest upon the principle that damage which is the natural and probable consequence of the defendant’s wrongdoing is imputable to him notwithstanding an intervening act.”

I have already referred to the case of Stansbie v. Troman[lviii]¹¹. In that case the Court of Appeal was referred to the dictum of Lord Sumner in Weld-Blundell v. Stephens[lix]¹². The Court did not apply the dictum, Tucker L.J. (with whom the other members of the Court agreed) saying:

“I do not think that Lord Sumner would have intended that very general statement to apply to the facts of a case such as the present where, ... the act of negligence itself consisted in the failure to take reasonable care to guard against the very thing that in fact happened.”

Professor Fleming The Law of Torts, 4th ed., at p. 198, deals with the situation where the intervening act was not simply negligent but deliberately harmful or highly reckless. He says that the isolation test at one time invariably led to the exoneration of the original wrongdoer. He then cites the dictum of Lord Sumner in Weld-Blundell v. Stephens[lx]¹³. He also cites several cases in which the facts indicate that the original wrongdoer would not have foreseen the eventual damage. He then goes on to say that in an increasing range of situations the law is now prepared, if still somewhat hesitantly, to exact liability for negligently providing an opportunity for wrongdoers to cause deliberate harm. For this proposition he cites amongst other cases Stansbie v. Troman[lxi]¹⁴. He adds that reluctance to extend responsibility to the deliberate wrongdoing of others is obviously most pronounced where the likelihood of such an occurrence was not the risk contemplated by the rule violated by the defendant. By way of example he cites a case where the defendant has run down a pedestrian whose wallet is later stolen whilst he is lying unconscious on the road. Another case is where a railway company negligently allows a carriage to get overcrowded thereby facilitating pick-pocketing. He goes on:

“In neither situation, can it be said that the rule of conduct violated by the defendant was aimed at the prevention of theft, and courts have generally declined to postulate a supplementary duty to guard against such an eventuality as a normal accompaniment of other hazards, at least in the absence of special knowledge by the defendant that is was rather likely to occur.” (My underlining).

Upon a consideration of the authorities it is my view that deliberate unlawful acts by third parties following a negligent act do not absolve the negligent party if it can be shown that the acts of the third parties are such as would be known by the ordinary reasonable man to be a likely consequence of a negligent act. The question which, to my mind, is posed in the circumstances of this case is whether a person in the position of Rovin would know whether negligent driving causing death or injury to a villager in the Eastern Highlands would be likely to set in motion violent physical retaliatory action against the occupants of the vehicle driven by him.

I turn now to consider certain factual evidence adduced at the trial.

Mr. Brown in his evidence gave as the reason for his hurrying off to report the accident to the police that it was “common knowledge” that when someone is killed there will be a “payback” attitude. Cross-examined on this evidence he stated that “payback” action was common in both motor vehicle accidents and in tribal killings. Another witness for the plaintiff was John Somoso. He stated that he knew the deceased Rovin well and came from the same part of Papua New Guinea as Rovin. He said that he was a licensed driver and drove a vehicle in the Goroka area. He said that he was aware that he had to be careful in driving around that area and that advice had been spread around coastal people living in the Goroka area that if they became involved in a motor vehicle accident it was imperative not to stop at the scene of the accident but to proceed immediately to the nearest Police Station and report the matter. He thought that the reason underlying this was that if he did stop “probably people would kill me on the spot”. Inspector Daniel in his evidence said that his advice to drivers in the Goroka area was not to stop following a motor vehicle accident but to report immediately to the nearest Police Station. From his experience drivers and passengers of motor vehicles involved in an accident would be chased by local people. He recalled two incidents in the Eastern Highlands area where the driver and passengers of vehicles involved in motor vehicle accidents had been chased and stoned.

Superintendent Sausau also gave evidence for the plaintiff. In 1972 he was a Sub-Inspector of Police in the traffic office in Goroka and took part in the police investigations following the death of Moini and Rovin. He said that he recalled two similar incidents whilst stationed in the Eastern Highlands District. One occurred at Hengganofi. That was an incident in which a child pedestrian was knocked down by a motor vehicle. The driver and his passenger emerged from the vehicle to assist the child but they were chased by bystanders. The driver managed to escape and report the matter to the Police Station. The passenger, however, was chased and killed. The child victim of the accident was not seriously injured. The second incident related by him occurred between Kainantu and Hengganofi. Again a pedestrian was knocked over by a motor vehicle. The driver went straight to the Kainantu police to report the accident. Relatives of the pedestrian then chopped down trees which blocked the Highlands Highway and announced their intention to block any vehicle that was coming along the Highway. Superintendent Sausau also said that verbal advice was given to drivers to the effect that they should not stop following a motor vehicle accident but should proceed immediately to the nearest Police Station to report the incident. He thought that this advice was generally known amongst the public. He also stated that in the two incidents related by him subsequent police investigations indicated that neither driver was at fault.

Inspector Selva gave evidence to the effect that he had been stationed in the Highlands since 1968 with the exception of two years spent elsewhere. During this time he was aware of many motor vehicle accidents which had come to his knowledge from official reports passing through his hands. He said that from his knowledge and experience retaliation following a motor vehicle accident in the Highlands was likely to produce either an immediate reaction or a secondary reaction. An immediate reaction was likely in circumstances where there happened to be a number of people of the same line as the person injured present at the time of the accident. The immediate reaction was likely to take the form of throwing of stones and punching, which could go as far as causing death. The secondary reaction he referred to consisted of infliction of property damage. Physical reaction against the occupants of a motor vehicle was not necessarily confined to cases where the victim was killed or seriously injured. He said that from his experience in the Highlands he knew of no occasion where physical retaliation was not taken against a driver who remained at the scene and did not escape.

Mr. Wilson, a District Officer in the Provincial Headquarters at Goroka, also gave evidence for the plaintiff. He has spent a number of years in the Highlands, particularly in the Eastern Highlands Province. From May, 1970 to April, 1973 he was the Political Education Officer in the Eastern Highlands. As part of his duties as Political Education Officer he attended conferences held at regular intervals between senior administration officers and police officers, one of the topics for discussion at these conferences being motor vehicle accidents in the area. He related several instances. The first was in 1971 where a truck crashed into a bridge and a passenger on the back was thrown off and killed. The passenger was from the area where the accident occurred. The village people quickly gathered and started stoning the occupants of the vehicle. The driver ran away and escaped but one of his passengers was killed as a result of stones thrown at him and another was injured to the extent that he was hospitalized for some weeks. Another incident occurred in the Kompri Valley where a Government officer struck a child who ran on to the road. He stopped to give assistance and a number of people started punching him. He was, however, able to convince the people that the priority was to get the injured person attention as soon as possible. A third incident occurred again in the Kompri Valley where a driver collided with and killed a pedestrian. The driver did not stop but proceeded to the nearest Police Station to report the accident. However, another Government vehicle was coming along the Highway and this was stopped by relatives of the deceased who pulled the occupants out of the vehicle, beat them up and injured them. He also said that the general advice given to motorists in the area was that they should not stop following a motor vehicle accident but should proceed immediately to the nearest Police Station. He said that he knew the people of Faniufa Village well. He said that they were still strongly influenced by traditional custom and that the traditional attitude amongst these villagers when a child was killed would be to “payback” the death. He said that the general attitude of Highlanders was that it was “practically imperative to ‘payback’ otherwise shame would be felt.” In cross-examination he said that whilst he had related two particular incidents there were quite a number of other incidents relating to “payback” following motor vehicle accidents.

The evidence to which I have adverted indicates clearly, in my view, that what in fact happened in this case was the very thing likely to happen following the collision of the vehicle with the child Linda, particularly in circumstances where the vehicle had overturned thus preventing the occupants of it from leaving the scene. I would think that the evidence concerning violent retaliation at the scene of a motor vehicle accident would not be surprising to anyone familiar with the customs of this country, particularly in the Highlands. It is a matter of considerable notoriety. I entertain no doubt that in the circumstances of this case violence of the kind that actually occurred was a foreseeable consequence of negligent driving.

I turn now to the assessment of damages. At the time of his death Moini was in his thirty-second year. The plaintiff was then about twenty-eight years of age. Both were apparently in good health. The two children of the marriage, Joyce and Clarence, were aged about five and two respectively. At the date of Moini’s death his marriage had subsisted for about six years. According to the table prepared by Dr. Scraggs on expectation of life in Papua New Guinea (which was admitted in evidence without objection) the deceased had an expectation of life of about thirty-four years and the plaintiff about thirty-seven years.

The deceased joined the Education Department under temporary conditions in 1971 having previously worked as a teacher with a Catholic Mission in Bougainville. In August, 1970, whilst still with the Mission, he was awarded a U.N.E.S.C.O. scholarship under which he pursued studies in England from October, 1971 to August, 1973. Whilst in England he was appointed as an Exempt Officer which meant that he became a member of the Public Service. However, this meant that not all Public Service conditions applied to him; for example he did not become a contributor to the Superannuation Fund. On 13th July, 1972 he was appointed as Associate District Superintendent of Education in the Eastern Highlands District and took up this appointment in October, 1972 following his return from England. At the time of his death he was being paid thirty per cent higher duties allowance of the office of Education Officer Grade 9. The salary paid to him (including the higher duties allowance) was K3,992.00.

Evidence for the plaintiff was given by Mr. Walker, an officer of the Education Department. He gave evidence (without objection) by reference to a file. This file showed that Moini had been examined by an Executive Assessment Workshop, a scheme to assess potential for executive placement, and had been assessed as Category 1 — the highest assessment. Mr. Walker said that people rated as Category 1 usually did well and that possibly he would have reached a Level II position. He also said that Moini’s period as Associate Superintendent would normally have lasted for one year whereupon, assuming his work had been satisfactory, he would have received an appointment as an Education Officer Level 9. The present salary of an Education Officer Level 9 is in the range of K5,640-K6,090 (gross). In the circumstances of the deceased, after allowing for deduction for tax, rental and Superannuation (assuming he had become a contributor to the Superannuation Scheme), he would have a net disposable income of about K92.00 per week.

I was urged by counsel for the plaintiff to accept that Moini would have progressed to the position of Education Officer Grade II. Mr. Walker did not know Moini personally and had no personal knowledge of his work. Any assumption that he would have attained a position of Education Officer II must necessarily be based upon the rating of the Executive Assessment Workshop whose opinion was apparently formed before Moini actually engaged himself in the work of Associate Superintendent. There is no evidence which shows whether or not Moini’s actual performance matched the potential which the Executive Assessment Workshop considered he might have. To conclude that Moini would have reached the position of Education Officer Level II involves the assumption that the assessors’ opinion would prove to be correct. In the absence of any evidence as to his actual performance I am not disposed to make this assumption — to do so, to my mind, involves pure guess-work. It is common knowledge that performance often does not match potential. Upon the evidence I am not disposed to hold that he would have advanced beyond Level 9.

Since the death of her husband the plaintiff and her children have returned to her village in the Buin Sub-Province. They are apparently living on food grown in the village supplemented by store goods paid for by the plaintiff’s brothers.

It is well established that the basis of a claim of this nature is the loss of economic or material advantages rather than the plaintiff’s need for economic support. (See e.g. Mary Gugi v. Stol Commuters Pty. Ltd.[lxii]¹⁵).

It was said by the plaintiff in her evidence that her husband used to give her K15.00 per week. This was for the purpose of buying the family food in the market and in stores. This was not always enough, in which event it would be supplemented by further payments from her husband. In addition her husband gave her money from time to time to purchase clothing for herself and her family. Further, her husband provided her with money to purchase various household items.

There was tendered in the plaintiff’s case a list, said by the plaintiff to have been prepared by her advisers on her instructions, itemizing expenditure on food, clothing, household items such as towels, sheets, crockery, cutlery and toilet requisites and other miscellaneous items. The grand total amounts to K2,905.29 or K55.00 per week. Cross-examined concerning this list she was somewhat vague concerning its contents, and I was left with the impression that it, not unnaturally, was an attempt to put the best possible complexion on the matter from the plaintiff’s point of view and should be treated with caution. The list also contains some items which I think are clearly open to challenge. An instance is an item of K231.00 for airfares for herself and the children each alternate year to visit her home area at Buin. This, of course, is in the nature of reimbursement for fares if expended. Since her husband’s death the plaintiff and the children have been living in Buin so that no occasion to expend money on fares to Buin arises. Another instance is to be found in an item relating to K180.00 per annum for electricity charges. There is no evidence that the plaintiff is now called upon to make this expenditure.

An additional claim is made on behalf of the plaintiff. This is in respect of house rent. The deceased, in his lifetime, enjoyed the benefit of low cost housing, the rent being K15.95 per fortnight. It is said, as I understand the argument, that the plaintiff has lost the amenity of a low cost house. However, it is to be noted from Exhibit 8 (a letter from the Commissioner for Housing) that the Government is contemplating the introduction of economic rents in which event the deceased would have been called upon to pay a rental in the order of K60.00 per fortnight. It thus appears that the deceased, had he lived, might well have lost the amenity of low cost housing. Indeed in this situation and having regard to the income of the deceased it must have had an appreciable effect on the money available for the housing expenses of himself and his family. In any event there is no evidence to show that the plaintiff is now called upon to pay house rent in excess of that previously paid by her husband or is living in housing less congenial to her than that previously enjoyed.

Upon the evidence, therefore, I am not disposed to uphold the claim now made that the plaintiff has lost an amenity in the form of low cost housing.

Doing the best I can on the evidence before me I assess the plaintiff’s loss of economic support in the sum of K45.00 per week or K2,340.00 per annum.

As has been mentioned earlier, the deceased was not at the date of his death a contributor to the Superannuation Scheme relating to Public Servants. It might be assumed that, had he lived, he would have become a contributor. Assuming that he had he would have been required to make contributions to the Scheme. According to the evidence a person who retires at age sixty with thirty-five years as a contributor to the Scheme would receive a certain pension. In the case of the deceased who, by reason of his age, would not have been able to fulfil the requirement of thirty-five years as a contributor he would on retirement at age sixty be entitled to receive a pension in an amount arrived at by dividing his actual number of years as a contributor by seventy and multiplying by the average of his salary over the three years preceding his retirement. If he retired through ill-health before attaining the retirement age he would receive half of the average salary and if he died his widow, during widowhood, would receive five-eighths of his entitlement plus K130.00 per annum for each child under the age of sixteen. Assuming he died after reaching the retiring age his widow would, during widowhood, receive five-eighths of the pension to which her husband was entitled.

I advert to these matters to show that assuming the deceased had become a contributor to the Scheme he would, if he reached the retiring age, continue to be in receipt of income and that upon premature retirement through ill-health he would have an entitlement. In either event his widow would, during widowhood, have an income.

I have assessed the plaintiff’s loss of economic support in the sum of K2,340.00 per annum. She had a life expectancy of about thirty-seven years and the deceased about thirty-four years. I must now, in accordance with established principles, make allowances for the many uncertainties that arise in cases of this kind. The deceased may have died prematurely in which event (assuming he maintained his employment with the Government and became eligible for Superannuation benefits) there would be a substantial diminution in the income available for the widow and the children. He may have become incapacitated for work with a similar result. The plaintiff herself and the children may die prematurely. The deceased’s income may have increased over the years; on the other hand he may have found himself in less remunerative employment or in no employment at all. The plaintiff herself may remarry. I must say that I do not regard this as being at all unlikely. She is a very personable lady now in her early thirties. She said in evidence that she had already received offers of marriage which she rejected saying that the men concerned all drank too much for her liking. I did not gain any impression that she had rejected any thought of remarriage; rather the quality of the suitors to date did not measure up to her standards or those of her deceased husband. These and other imponderable considerations must be taken into account when one is required to look ahead over a long period of time in determining the lump sum payable now instead of periodical payments over the years. Upon a consideration of all the circumstances of the case I award the plaintiff K35,000.00 and there will be judgment for the plaintiff in that amount.

It is now necessary to apportion this sum as between the widow and the infant children. At the date of death of their father Joyce was aged about five and Clarence about two. I propose to treat the period of dependency as ending at the age of sixteen. The assessment of the value of the dependency must of necessity be somewhat arbitrary. It should, I think, be assumed that the widow will use part of the amount allocated to her for the children’s maintenance. I assess it in the case of each child at K8.00 per week. In the case of Joyce the dependency should extend for about eleven years and in the case of Clarence for fourteen years. Using the tables appearing in 40 A.L.J., p. 243, the approximate amounts appear to be K3,300.00 in the case of Joyce and K4,000.00 in the case of Clarence. I order that from the total award of K35,000.00 the sums of K3,300.00 and K4,000.00 be invested on behalf of Joyce and Clarence respectively to be paid upon reaching the age of twenty-one years or upon further order of this Court.

I reserve liberty to apply.

Orders accordingly.

Solicitor for the plaintiff: W. J. Andrew, Acting Public Solicitor.

Solicitor for the defendant: B. W. Kidu, State Solicitor.

[xlviii](1905) 22 T.L.R. 1.

[xlix][1961] A.C. 388.

[l](1961) 106 C.L.R. 112.

[li](1961) 106 C.L.R. 112.

[lii][1935] 1 K.B. 146.

[liii][1948] 2 K.B. 48.

[liv][1970] 2 W.L.R. 1140.

[lv][1920] A.C. 956.

[lvi][1920] A.C. 956.

[lvii][1961] A.C. 388.

[lviii][1948] 2 K.B. 48.

[lix][1920] A.C. 956.

[lx][1920] A.C. 956.

[lxi][1948] 2 K.B. 48.

[lxii][1973] P.N.G.L.R. 341.