Richard Dennis Wallbank and Jeannette Minifie v The Independent State of Papua New Guinea [1994] PNGLR 78

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: [1994] PNGLR 78
• Date: 28 October 1994
• Year: 1994

Full Title: Richard Dennis Wallbank and Jeannette Minifie v The Independent State of Papua New Guinea [1994] PNGLR 78

Supreme Court: Los J, Brown J, Sakora J

Judgment Delivered: 28 October 1994; 4 November 1994

1 Damages—measure—dependency claim by widow and child—extent of personal use of available income by deceased—pre–trial and post–trial estimates at variance—no real reason for disparity—consistency to be sought

2 Damages—measure—dependence claim—assessment of anticipated lost income from date of death to date of trial—considerations—actual basis for estimated annual income to be shown

3 Damages—measure—dependency claim—widow—prospects of remarriage—common law principle to be applied

4 Damages—estates claim—head of damage—claim for "lost years" of income of deceased—whether damages available in PNG

5 Appeal—practice and procedure—application to reopen appeal by appellant following successful appeal after reasons delivered—principles on which court will consider application to reopen

6 Constitutional law—reception of common law—assessing dependency claims of widow—prospect of remarrying

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By the Court: The plaintiffs are the executors of the estate of the late Graeme John Minifie who died whilst a passenger in a helicopter which unfortunately crashed into the Popio River, Gulf Province on the 9 October 1986. It struck a cable strung across the river to facilitate the measurement of water flow. Whilst liability was not admitted the respondents defence was, by earlier order, struck out. The claim was one for assessment of damages only before his Honour Hinchliffe J in the National Court. The plaintiffs brought their action on behalf of the Estate of the late Graeme John Minifie (the deceased) pursuant to Part V of the Wrongs (Miscellaneous Provisions) Act (Ch297) and on behalf of the surviving widow and child Rosaline pursuant to Part IV of that Act.

On the 15 May 1992 the Hinchliffe J gave judgment for the plaintiffs in the total sum of Three Hundred and Twenty Six Thousand Two Hundred and Thirty Eight Kina (K326, 238.00) and interest from the 15 May 1992 to the date of payment of that judgment at the rate of 8% per annum. It is from that order that the appellants come to this Court seeking leave to appeal the trial judge's findings of fact where leave is required and other findings on questions of law or mixed questions where leave is not required.

The appellants seek orders quashing the whole of the judgment of the trial judge and an award of damages as this Court considers just and appropriate with interest and costs. The damages sought in argument before us in fact far exceed the trial judge's award. The lawyers for the appellants have prepared a template for assessment of damages for this Court's assistance, a template which we have used later in the course of our reasons. We have found that template helpful.

The Facts

To help in understanding the basis of the appeal, we set out a statement of agreed facts—

1. The deceased was born on 22 October 1951 and at the time of the accident causing his death was a self employed geologist and company director.

2. The plaintiff Jeanette Minifie was born on 14 September 1950 and was at the time of her husband's death wholly dependant upon him.

3. The deceased and Jeanette Minifie were married on 14 August 1979.

4. The only child of the marriage is Rosalind Minifie born on 3 June 1986.

5. The child of the marriage was wholly dependent upon the deceased.

6. Graeme John Minifie died on 9 October 1986 in Papua New Guinea.

7. At time of death, his wife and child of the marriage were living in Australia although the deceased was working in Papua New Guinea at the time of his death.

8. The career path which the deceased was likely to follow was that of a Consulting Geologist.

Grounds of appeal as a result of certain findings of the trial judge.

The damages were assessed having regard to factors which the appellants say adversely impinged on the appellants real entitlements. The appellants say that the trial judge erred in finding that the widow could be expected to re–marry and rejecting the widow's evidence on her intentions in that regard. As a result there was a finding of dependency only to 1996 when she was expected to re–marry when (the appellants contents), there was no evidence to support such a finding. Consequently the post hearing future loss of dependency was greatly discounted. This was an error.

As well the trial judge erred in unreasonably discounting the widow's evidence of the extent of her dependency so that her prejudgment loss was assessed at 50% and not 75% of the deceased's net income, contrary to the evidence.

As a result the appellants say, the trial judge erred in finding damages in an amount of Three Hundred and Twenty Six Two Hundred and Thirty Eight (K326,238.00) and no more.

The appellants also criticised the trial judge's apportionment of the dependent's loss between the widow and the surviving child Rosalind for that he failed to consider the child's increasing financial needs to 18 years of age and in his award of damages to the child after 1996 the trial judge failed to take into account the loss of shared benefits derived from the deceased's income.

The other grounds of the appeal will appear from the arguments advanced by the appellants. We should also say at this time that the appellants argue that the Estate claim should have included damages for loss of earnings during the deceased's "lost years".

As we deal with the particular grounds and the appellants submissions it would be apparent that where needed, leave to appeal has been given for we consider the questions of mixed fact and law are so interwoven with unresolved factual matters that we consider leave should be given in any event.

The appellants rely on the ratio in Mary Gugi v Stol Commuters Pty Ltd [1973] PNGLR 341 where it was said that the dependents were entitled to recover that amount "which was equivalent to the loss of economic and material advantages which the deceased had been expected to have provided to the dependants". The factual basis on which the trial judge arrived at a figure for annual earning and projected future earnings was not altogether clear for the judge relied on various options which had been prepared from a report and formed part of Mr Moore's schedule tendered as an exhibit in the trial. While relying on a global figure in an amount of Two Hundred and Twenty Five Thousand (K225,000.00) as income for a consulting geologist from October 1986 to date of trial, we are of the view that the use of the schedule prepared by Mr Terrence Moore the deceased's accountant, cannot be related to any underlying primary sources to justify the figures sufficient for this Court to be satisfied of the basis of such figures. It would seem for instance that the "consulting geologist option schedule" includes an element for share allotments and option entitlements in favour the deceased from time to time by particular mining companies. We cannot ascertain how those share issue entitlements or options have been valued for inclusion in the assessment of annual income set forth in the schedule.

Mr Moore's evidence touched on a company, East Caribbean Mining Development Ltd. No such entity existed. A form of agreement was tendered, (apparently with the consent of the State) which was neither executed by the parties nor stamped and which recited no mining tenements for instance held by any parties named in the document, in any part of the Caribbean. Although Mr Minifie had not been to the Caribbean, Mr Moore said that he intended to go. Mrs Minifie apparently obtained no benefit under this document although her name had been substituted for that of her husband.

Mr Moore spoke of incentive shares issued by mining companies to consulting geologists. He said Mr Minifie received a "large interest" from Niugini Mining. They were described as 20,000 shares @ $1.80 per share and 100,000 shares to be issued at par. No documentation was produced touching on these incentives. In fact the letter of intent of Niugini Mining dated 10 January 1986 made no mention of any such incentives but particularised a daily rate for geological services in Papua New Guinea of A$350. The agreement was to run until December 31, 1986. Later, when asked about the shares, Mr Moore said Mrs Minifie paid A$1.60 each for the 20,000. He said she sold them at A$2.60 each. There was no evidence whatsoever to show if the purchase price of A$1.60 was at a discount to the market or not. Yet Mr Moore had, in his schedule 1, brought Niugini Mining to account on a pre October...