Jackson Koko and Elisha Koko, Infants, by Their Next Friend, Mava Koko v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 12 August 1988
• Citation: [1988] PNGLR 167
• Court: National Court
• Year: 1988
• Judgement Number: N675

National Court: Bredmeyer J

Judgment Delivered: 12 August 1988

1 Damages—fatal accident—death of wife—claim by children for loss of their mother—claim for loss of extra services provided by a mother over and above those provided by substitute housekeeper—claim for extra risk of orphanhood due to mother's death

2 DAMAGES—Fatal accidents legislation—Measure of damages—Infant plaintiffs—Death of mother—Allowable heads of damages—Loss of pecuniary benefits—Loss of mother's extra services—Increased risk of orphanhood—Mother 23—Children one and four years—Particular awards—Wrongs (Miscellaneous Provisions) Act (Ch295), Part IV.

3 Davies v Powell Duffryn Associated Collieries Ltd (No 2) [1942] AC 601, Fisher v Smithson (1978) 17 SASR 223, Glasgow Corporation v Kelly [1951] TLR 345, Hay v Hughes [1975] QB 790; 2 WLR 34; [1975] 1 All ER 257, Kerr v MVIT [1979] PNGLR 251, Mehmet v Perry [1977] 2 All ER 529, Regan v Williamson [1976] 1 WLR 305; [1976] 2 All ER 241, Reincke v Gray [1964] 1 WLR 832; [1964] 2 All ER 687, Thompson v Mandla [1976] 2 NSWLR 307 referred to

A wife and mother (aged 23) was killed in a motor vehicle accident caused by the negligence of her husband who was the driver. Two infant children brought a dependency claim for damages against the Motor Vehicles Insurance Trust under Part IV of the Wrongs (Miscellaneous Provisions) Act (Ch295).

Held:

(1) Whilst in a dependency claim for the loss of a mother, infant children cannot recover damages for loss of their mother's love and affection nor for the grief they have suffered:

(a) damages may be awarded for the loss of any pecuniary benefits which they might reasonably have expected to enjoy had she not been killed;

Davies v Powell Duffryn Associated Collieries Ltd (No 2) [1942] AC 601, followed.

(b) damages may be awarded for the loss of a mother's extra services, such as instruction on essential matters to do with upbringing and help with homework, being services over and above those expected to be provided by a housekeeper; and

Regan v Williamson [1976] 1 WLR 305, Mehmet v Perry [1977] 2 All ER 529, and Fisher v Smithson (1978) 17 SASR 223, applied.

(c) damages may be awarded for increased risk of orphanhood.

Reincke v Gray [1964] 2 All ER 687; Thompson v Mandla [1976] 2 NSWLR 307 and Fisher v Smithson (1978) 17 SASR 223, considered and applied.

(2) In the circumstances it was appropriate to award:

(a) for loss of extra services: $350 per week per child till cessation of the age of dependency (16 years) but discounted for contingencies, relevantly including the presence of a de facto wife assuming a parenting role; and

(b) for increased risk of orphanhood: K1,000 for child aged four at date of mother's death; K5,100 for child aged one year at date of mother's death.

Statement of claim

These were proceedings in which the two infant children of a mother killed in a motor vehicle accident sought to recover damages on account of the death of the mother under the Wrongs (Miscellaneous Provisions) Act (Ch297), and for personal injuries suffered by themselves in the accident.

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Bredmeyer J: This is a claim on behalf of two children, Jackson (born 29 September 1979) and Elisha (born 27 October 1982) for damages for the death of their mother in a motor vehicle accident and for injuries to themselves. The accident occurred on the Magi Highway on 6 November 1983. The mother, Ester Koko, was the passenger in a car driven by her husband Ilo Koko. The accident was caused by the negligence of the husband but, by virtue of s54 of the Motor Vehicles (Third Party Insurance) Act (Ch295) the infant plaintiffs are allowed, and required, to sue the defendant Trust.

The claim arising out of the mother's death falls into two parts: the infants' dependency claim under Part IV of the Wrongs (Miscellaneous Provisions) Act (Ch297) and the estate claim under Part V of that Act. To deal with the latter first. The wife's estate is entitled to K1,500 for loss of expectation of life the conventional sum allowed by this Court, as per Kerr v MVIT [1979] PNGLR 251. The sum of K1,500 has already been paid under the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act (Ch296) and, by s25(1)(b) of that Act, any damages awarded have to be reduced by the basic protection paid. So the estate's claim of K1,500 has been satisfied by the basic compensation award of the same sum.

In a dependency claim for the loss of a mother no damages are payable for the loss of their mother's love and affection nor for the grief they suffered. Damages are awarded for the amount of pecuniary benefit which those children might reasonably have expected to enjoy had she not been killed: see 34 Halsbury's Laws of England (4th ed), pars 94, 76, and Davies v Powell Duffryn Associated Collieries Ltd (No 2) [1942] AC 601. The measure of damages for the death of a mother is the cost of replacing her services by a housekeeper and the damages will be recovered even though those services are met by the voluntary assistance of a relative or friend: H Luntz Assessment of Damages for Personal Injury and Death (2nd ed, 1983), par 9.3.10, p 417.

In a typical case where the wife is killed by the negligence of a third party X, the husband sues X and recovers as damages the cost of a substitute housekeeper. Obviously the wife when alive provided services such as cooking, cleaning and ironing for the husband and for the children. As I have said, the husband can recover the cost of substitute services when his wife is killed and there is common law authority that this loss cannot be apportioned between the loss of the mother's services to the children and the wife's services to the husband, the reason being that the wife's services to the children are said to be for the husband. The courts speak of the primary obligation of the husband to provide for his children. Where the wife is alive and does not work the husband discharges that obligation by, as it were, supplying the wife's services for the children. When she dies, he continues to discharge that obligation to the children, by providing the services of a substitute housekeeper. In that event the children have not suffered any pecuniary loss by the death of their mother. H McGregor, McGregor on Damages (15th ed, 1988), pars 1586, 1589, pp 1007, 1009.

In this case the deceased mother did not work and Mr Shepherd, for the plaintiff, concedes these authorities and makes no claim for the cost of a substitute housekeeper to look after the plaintiff children. He concedes that only the father can claim for the loss of the mother's services to the...