Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J
• Judgment Date: 13 December 1990
• Court: National Court
• Citation: [1990] PNGLR 580
• Year: 1990
• Judgement Number: N953

Full Title: Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580

National Court: Hinchliffe J

Judgment Delivered: 13 December 1990

N953

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

COLLINS

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Hinchliffe J

23-24 August 1990

13 December 1990

DAMAGES — Fatal accidents — Measure of — Dependency claim — Infant dependant — Age of dependency — Sixteen years not necessarily appropriate.

DAMAGES — Fatal accidents — Measure of — Dependency claim — Practice and procedure — All dependants to be specifically named in writ — Wrongs (Miscellaneous Provisions) Act (Ch No 297), s 32.

DAMAGES — Fatal accidents — Measure of — Dependency claim — Deceased husband and father — Whether age of retirement to be fixed at 55 years — Public Service retiring age not mandatory.

DAMAGES — Fatal accidents — Measure of — Dependency claim — Estate not entitled to claim for economic loss during lost years.

The deceased, an Australian aged 53 years, was killed in a motor vehicle accident. A claim for damages was made by his wife and two children (one of whom was not named in the proceedings) against the Motor Vehicles Insurance Trust under the Wrongs (Miscellaneous Provisions) Act (Ch No 297). Section 32 of the Act requires a plaintiff to deliver, with the statement of claim, "full particulars of the person for whom and on whose behalf the action is brought ..."

Held

(1) Sixteen years as the maximum age of a child in dependency claims is an arbitrary figure, and does not reflect the reality and economic materiality of the dependency of children upon their parents.

None v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 561, followed.

(2) A dependant who is not specifically mentioned in the writ of summons as required by s 32 of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) cannot claim for dependency loss.

(3) In considering a dependency claim, whilst the Public Service retiring age of 55 years is the proper age to which regard should be had, it is not mandatory. In fixing the age of retirement regard is to be had to the particular circumstances.

Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611 at 615, considered.

(4) The estate of a person who dies as a result of another's negligence is not entitled to recover damages for economic loss during the lost years.

McLean v Carmichael [1969-70] PNGLR 333 and Vian Guatal v PNG [1981] PNGLR 230, followed.

(5) Where the deceased was a qualified painter and decorator and professional footballer who was in Papua New Guinea as National Coaching Director of the Papua New Guinea Rugby League and was fit and healthy, an appropriate retiring age was 65 years.

Cases Cited

Aglum v Motor Vehicles Insurance (PNG) Trust (National Court, Judgment No N768, Bredmeyer J, 30 September 1988, unreported).

Gammell v Wilson [1982] AC 27; [1981] 1 All ER 578.

Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611.

Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.

McLean v Carmichael [1969-70] PNGLR 333.

None v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 561.

Oliver v Ashman [1962] 2 QB 210; [1961] 3 All ER 323.

State v Allen Woila [1978] PNGLR 99.

Tapi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 568.

Vian Guatal v PNG [1981] PNGLR 230.

Action

This was an action brought under the Wrongs (Miscellaneous Provisions) Act (Ch No 297) to recover damages in respect of the death of the plaintiff's husband as a result of a motor vehicle accident.

Counsel

W Neill, for the plaintiff.

R Thompson, for the defendant.

Cur adv vult

13 December 1990

HINCHLIFFE J: Francis Keith Collins was killed on 18 March 1987 in a motor vehicle accident on the Magi Highway. He was a passenger in a vehicle being driven by one Michael Wai. The defendant has admitted liability so what is left for this Court to decide is the quantum of the plaintiff's claim and whether or not the deceased's estate is entitled to bring a claim for damages for its loss consequent upon the premature death.

Both parties are a considerable difference apart in their estimations of what should be the correct figure. The plaintiff submits that a figure in the vicinity of K158,000 is in order whereas the defendant is far more conservative with a figure somewhere between about K10,000 and K24,000. Hence the reason why this action has found its way into this Court.

There are three matters to which I will refer at the outset. First of all is the question of the maximum age of a child in a claim such as this. In the past, courts have been fairly consistent in saying that 16 years is the maximum age, although more recently some judges have not necessarily followed that view. Brunton J in None v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 561, held that 16 years was an arbitrary figure and did not reflect the economic materiality of the dependency of children upon their parents.

A similar approach was taken by Woods J in Tapi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 568.

I agree with those judges in their approach. There are instances where children, well after their 16th birthday, may be dependent on their parents. Some continue being educated into their early twenties and may be fully reliant on their parents for financial assistance. Others could be unemployed and may stay at home under parental guidance and support for many years. The days of leaving school and finding immediate employment have gone for ever. The opportunities for further education are increasing. Many people have shifted from their villages and moved to the cities. They no longer have gardens. All in all it means that now young people, to a large extent, are dependent on their parents well after the age of 16 years. Maybe the time has come to consider whether or not 16 years is realistic in such a claim as this one. I am inclined to the view that it is not. In the present case I propose to consider the child Roseanne's loss before and after she had turned 16.

Secondly, there is the question as to the claim of the child Maureen.

I note that during the hearing of the claim her name was mentioned on numerous occasions. in the schedule of dependency calculations forwarded to me by Mr Neill on 30 August 1990, her name was included together with claim figures. Ms Thompson has submitted that the child Maureen should not be considered in any calculations because she was not specifically mentioned in the writ. I must agree with her because the amended statement of claim dated 22 February 1990 reads, inter alia, as follows:

"Particulars of the Plaintiff pursuant to Section 32 Wrongs (Miscellaneous Provisions) Act Chapter 297.

The claim is brought by the dependents of the deceased at the time of his death namely the Plaintiff widow and daughter Roseanne Monica Collins aged 49 years and 15 years respectively."

Section 32 of the said Act provides:

"In an action under this Part, the plaintiff on the record must deliver, together with the statement of claim, to the defendant or his lawyer full particulars of the person for whom and on whose behalf the action is brought, and of the nature of the claim in respect of which damages are sought to be recovered."

Clearly the child Maureen has not been included and if it was intended that she be included then I am satisfied that s 32 has not been complied with. I agree with Ms Thompson's submission and I will not refer to Maureen when assessing the claim.

Thirdly, it has been submitted by the defendant that when considering this matter I should only be concerned with the time leading up to the deceased's 55th birthday. It was submitted that as far as Papua New Guinea is concerned, that is the Public Service retiring age and that is the age that I should be dealing with as the cut-off time. I was referred to a National Court decision of mine, Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611, in which I said (at 615):

"... In Papua New Guinea the Public Service retiring age is 55 years and I am of the view that that is the appropriate age to work on when assessing past and future loss of income."

Other judges have also taken a similar approach: see Tapi v Motor Vehicles Insurance (PNG) Trust; Aglum v Motor Vehicles Insurance (PNG) Trust (National Court, Judgment No N768, Bredmeyer J, 30 September 1988, unreported). They are, of course, only two cases amongst many that have concluded that 55 is the age on which to work.

Generally speaking, 55 is the proper age when assessing claims but to my mind it is by no means mandatory. There must be certain cases where 55 is only the starting point and the court might go up from there. It may even go down. Therefore I generally agree with Ms Thompson in her submission but I am also of the view that there are instances where the court will consider other ages as the age of retirement. In the present case, I see it as one of those instances.

The deceased was born on 20 August 1933 and he died on 18 March 1987....