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Jack v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 443 (30 August 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 443 - Bepi Jack v MVIT 

[1991] PNGLR 443

N1005

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JACK

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

24 July 1991

30 August 1991

DAMAGES - Fatal accidents - Particular awards - Death of husband and father - Plaintiffs/widows children and parents - Deceased community school teacher aged twenty-two years - Two wives - Two children from first wife - Aged parents in sixties - Contingencies for re-marriage or early death allowed at 10 per cent and 50 per cent.

The plaintiff, a widow aged twenty-two years, claimed damages on behalf of herself, her two infant children, a second wife and her parents-in-law, arising out of the death of her husband in a motor vehicle accident. He deceased (aged twenty-two years) was employed as a community school teacher.

Held

Damages for loss of dependency should be assessed as follows:

For the first wife: K24,750 reduced by 10 per cent for contingencies.

For the second wife: K13,750 reduced by 50 per cent for contingencies.

For each parent: K2,108 reduced by 20 per cent for contingencies.

Statement of Claim

This was an action for damages brought by a widow on behalf of herself, her two infant children, a second wife and her parents-in-law, arising out of the death of the husband in a motor vehicle accident.

Counsel

D L O’Connor, for the plaintiff.

A Kandakasi, for the defendant.

Cur adv vult

30 August 1991

WOODS J: The plaintiff is the widow of one Jack Kutne who was killed following a motor vehicle accident on 21 October 1989 near Banz. The deceased was driving a motor cycle registered No AK 449 which collided head on with a motor vehicle registered No AEZ 464 driven by Gop Kopun. The plaintiff is claiming damages on behalf of herself and her children, another wife and the parents and alleges that the deceased was killed through the negligence of Gop Kopun the driver of the motor vehicle. The claim is brought against the Motor Vehicles Insurance (PNG) Trust as the insurer of the motor vehicle driven by Gop Kopun and the Trust is denying liability.

[His Honour then considered the evidence in liability concluding that the:] driver and therefore the Motor Vehicles Insurance (PNG) Trust is liable for the claim.

ON DAMAGES

The deceased was a community school teacher aged about twenty-two years at the time of his death. He was married with two wives, the first Bepi Jack aged about twenty-two years at the date of the death and who had borne him two children. Rebecca Jack born on 31 October 1986 and Thomas Okul born 6 November 1987.

His second wife was Ellis Tol who was aged nineteen years at the date of his death. There were no children from the second marriage.

The deceased earned K240.25 gross as a school teacher. From that K16.29 was deducted for tax leaving a nett income of K223.96 per fortnight. I will use that figure as the figure from which I will calculate the dependency claims as the amounts applied towards savings and superannuation are still part of the nett income and were for the better lifestyle of the deceased and his dependents and his dependents did and would have gained the benefits from that. Payments to savings and loan societies are usually to provide for annual contingencies for the family.

There was also the suggestion of income from other endeavours namely a tradestore and family coffee block however being a wage earner and therefore a taxpayer if he earned other income he would have had to lodge tax returns giving details of such income and no tax returns or other appropriate documentary evidence was produced to support this other income and further as he was a full-time school teacher away from his home area I do not see how he would have himself operated two such separate occupations. Perhaps the tradestore and coffee trees were more enterprises with which he assisted for the benefit of his parents and the first wife and which they worked. I therefore find that the only reliable and authorised figure I can work from is the sum of K223.96 nett each fortnight.

I would assess the benefits to the wives and family from the pay of the deceased and this must include the benefits of the savings, at about K160 per fortnight or K80 per week. I would apportion that to K25 per week to each wife and K10 per week for each of the two children. I accept that the deceased also helped support his parents Kutne Boi and Danamp Met and I will allow K5 each per week for them.

The deceased was aged about twenty-two years at the time of his death so he would have had about thirty-three years of his working life left. So I must assess the loss for thirty-three years from 1989 to 2022.

On the dependency of the two children who were aged three years and two years at the time of the death I would consider that, being children of a school teacher, it is highly probable that they would have continued with their education as far as possible and therefore would have been dependant to later than sixteen years of age to at least eighteen years of age so I allow for the dependency till they attain eighteen years of age.

I will allow the dependency for the first wife for the full period till 2022 less a contingency of 10 per cent for her re-marriage or early death.

With respect to Ellis Tol she is the second wife with no children so I find that it is highly likely she will re-marry so I will reduce her dependency claim by 50 per cent.

The parents are aged about sixty years so I will allow them dependency for twelve years with a 20 per cent reduction for contingencies.

As the plaintiff was entitled to the funds from the date of the issue of the writ I will allow interest at 8 per cent from May 1990 to today.

Damages are assessed as follows:

I order judgment for K58,604.52. From that amount K27,180 is to be paid to the plaintiff Bepi Jack, K14,411.64 is to be paid to Ellis Tol, K332.08 is to be paid to Kutne Boi, K2,332.08 is to be paid to Danamp Met, and the sum of K14,348.72 is to be paid to the Registrar to be invested as to K6,991.82 on behalf of Rebecca Jack until she attains the age of eighteen years on 31 October 2008 and as to K7,356.40 on behalf of Thomas Jack until he attains the age of eighteen years on 6 November 2009.

The Registrar may apply up to K500 each year out of each child’s money for their education and maintenance and such moneys to be paid to the school concerned and to the mother.

Judgment accordingly

Lawyers for the plaintiff: O’Connor & Hasu.

Lawyers for the defendant: Young & Williams.