Mary Gugi v Stol Commuters Pty Ltd [1973] PNGLR 341

• Jurisdiction: Papua New Guinea
• Judge: Minogue CJ, Prentice J, Williams J
• Judgment Date: 05 October 1973
• Citation: [1973] PNGLR 341
• Court: Supreme Court
• Year: 1973
• Judgement Number: FC52

Full Title: Mary Gugi v Stol Commuters Pty Ltd [1973] PNGLR 341

Full Court: Minogue CJ, Prentice J, Williams J

Judgment Delivered: 5 October 1973

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MARY GUGI

V

STOL COMMUTERS PTY LTD

Port Moresby

Minogue CJ Prentice Williams JJ

29 August 1973

5 October 1973

DAMAGES — Assessment — Lord Campbell's action — Action by widow in respect of death of husband — Matters to be taken into account — Prospects of remarriage — Prospects of further children of marriage — Rights and obligations relating to customary family assistance — Double deductions for contingencies — Grounds for reviewing assessment — Law Reform (Miscellaneous Provisions) Ordinance, 1962 s. 13 (d)

The basis of a claim by a widow in a Lord Campbell's claim is the loss of economic or material advantages rather than her need for economic support or the monetary support which she might reasonably expect to have been provided by her husband had he lived.

Fernance v. Walker Bros. (1966), 84 W.N. (Pt. 2) (N.S.W.) 175, at p. 179; Taylor v. O'Connor, [1971] A.C. 115; and Shiels v. Cruikshank, [1953] 1 All E.R. 874 referred to.

The possibility or right of remarriage is not a "benefit or gratuity in cash or in kind received as the result of the death" of a deceased within the meaning of those words as used in s. 13 (d) of the Law Reform (Miscellaneous Provisions) Ordinance 1962.

Jones v. Schiffmann (1971), 124 C.L.R. 303, at p. 306, and Carroll v. Purcell (1961), 107 C.L.R. 73, at p. 79 referred to.

(Per Minogue C.J.). In assessing damages in a Lord Campbell's action — it is the degree of a wife's dependence had her husband lived and the monetary value of that dependence which she has lost that the Court has to consider — not the manner of life she chooses or is perhaps forced to adopt on being deprived of his support.

The question to be asked is — if the deceased had not been killed, but had eked out the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have supplied out of his income to the maintenance of his wife and family.

Test enunciated in Nance v. British Columbia Electric Railway Co. Ltd. [1951] A.C. 601, at p. 614 adopted.

H. and W. married on 6th December, 1969. H. died on 20th May, 1970, aged 23 years. W. was then 19 years. A child was born in September 1970. H. was a motor mechanic employed by the Administration, had completed an apprenticeship in that trade and was earning $40.00 per fortnight. Within two years of his death H. would have been a foreman earning approximately $90.00 per fortnight. W. had received an education to form 3 standard and prior to her marriage was a telephonist. At the time of death both H. and W. were residing in Alotau in a house provided by the Administration, it was found by the trial judge that they had moved from their village environment and had adjusted apparently successfully to the European style of living. At the time of hearing W. and the child had returned to live a village subsistence life with her family. The trial judge assessed damages at $10,000.00 of which $7,250.00 was apportioned to W. (plaintiff wife) and $2,750.00 to the child. On appeal against the assessment of damages: —

Held

(1) In so far as the trial judge took into account the plaintiff's prospects of remarriage, prospects of further children had the father not died, and the customary family assistance which may have been provided by the deceased within the family group, such matters were contingencies which might properly be taken into account in determining what amounts may have been available to the wife had her husband not died.

(2) In so far as the trial judge may have taken into account the ability and right of the wife to rely on customary family assistance and the choice she had made to return to live with her family, such matters were not contingencies which ought not to be taken into account in assessing damages.

(3) In so far as the trial judge had in assessing damages made double deductions from his assessment of damages in relation to some of the contingencies which might properly be taken into consideration, the assessment of $10,000.00 amounted to a "wholly erroneous estimate" of the damage suffered and a sum of $14,000.00 ought to be substituted.

Davies v. Powell Duffryn, [1942] A.C. 601, at p. 617 referred to.

Appeal

The plaintiff (appellant) sued the defendant (respondent) for damages pursuant to Pt. IV of the Law Reform (Miscellaneous Provisions) Ordinance 1962 on behalf of herself and an infant son, in respect of the death of her husband. Liability was admitted by the defendant and the trial proceeded on the issue of the quantum of damages only. Damages were awarded in the sum of $10,000.00 of which $7,250.00 was apportioned to the plaintiff and $2,750.00 to the child. The plaintiff appealed against this assessment of damages. Further facts appear in the reasons for judgment hereunder.

Counsel

W. A. Lalor, for the appellant.

R. Wood, for the respondent.

Cur. adv. vult.

5 October 1973

MINOGUE CJ: In an action under the Law Reform (Miscellaneous Provisions) Ordinance 1962 the learned trial judge in May 1973 made an award of $10,000 in favour of the appellant and her child in respect of the death of her husband in May 1970. The appellant appeals against that award on a number of grounds and asks the Full Court to increase the amount to $16,000.

I have had the opportunity of reading the draft reasons for judgment prepared by Prentice J. and Williams J. I agree with them that this appeal should be allowed and with Williams J. that a judgment for $12,000 should be substituted for that for $10,000.

To deal shortly with the grounds of appeal I am of opinion that the learned trial judge was not wrong in law in taking into account the freedom of the appellant to remarry in assessing damages for her dependency, and I agree generally with what my brothers have said in this regard. Likewise I am of opinion that his Honour was entitled to take into account the possibility of claims upon the deceased man for financial support or assistance, by further children to be born and by members of his extended family.

On one view of the learned trial judge's reasons it does appear that he may have allowed for at least some contingencies in arriving at the dependency of the appellant and her son at $35.00 per fortnight and may have taken into account those contingencies in arriving at his final assessment. But I am not satisfied that that is what his Honour did nor that this ground of appeal has been made out.

However, it is clear that the learned trial judge in arriving at his award did take into account what he described as the appellant's freedom to live where she wishes and this freedom was coupled in his consideration with her ability to rely on access to means of support and on customary obligations entitling her to support in her own village. I would readily assume that she has that ability and that those obligations exist but in my opinion they are not matters proper to be taken into account or to be given weight in a Lord Campbell's Act claim, and in so doing I think his Honour acted on a wrong principle of law. Her freedom of choice and the obligations owing to her are in my view analogous to the capacity to earn dealt with by the High Court in Carroll v. Purcell (1961) 107 C.L.R. 73.2. All are something inherent in the wife and bear no necessary relation to her dependence on her husband. It is the degree of her dependence had he lived and the monetary value of that dependence which she has lost that the curt has to consider — not the manner of life she chooses or is perhaps forced to adopt on being deprived of his support.

In the light of my conclusion I consider that this appellate court can examine the matter afresh. This case is particularly difficult as the appellant and her husband had hardly time to settle down into what might be called a pattern of married life before the husband was killed. The marriage had lasted just over five months and the court is called upon to try to estimate what would have happened over the ensuring thirty-five to forty years. This is par excellence a case to use the words of Menzies J. in Jones v. Schiffmann (1971) 124 C.L.R. 303, at p. 308.3 where: "The assessment of damages, whether by a judge or a jury, does sometimes, of necessity, involve what is guess-work rather than estimation."

I cannot altogether agree with the learned trial judge in his strictures on looking at the case as similar to that of a suburban housewife in an Australian environment. For myself I have observed many indications of what I would consider to be imitations of Australian suburban type of living albeit with the added factor of living in a communal society. None the less I find it a formidable task indeed to predict the type of urban or for that matter village living which will emerge in this rapidly changing society in the next thirty to forty...