Paul Komba v Nauli Duwaba, The Headmaster, Tabubil High School and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2006) N2979

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 21 February 2006
• Court: National Court
• Citation: (2006) N2979
• Docket Number: WS NO 504 OF 2001
• Year: 2006
• Judgement Number: N2979

Full Title: WS NO 504 OF 2001; Paul Komba v Nauli Duwaba, The Headmaster, Tabubil High School and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea (2006) N2979

National Court: Cannings J

Judgment Delivered: 21 February 2006

N2979

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 504 OF 2001

PAUL KOMBA

Plaintiff

V

NAULI DUWABA,

THE HEADMASTER, TABUBIL HIGH SCHOOL

First Defendant

JOHN WAKON,

COMMISSIONER OF POLICE

Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

Mt Hagen: Cannings J

2004: 16 November,

2006: 21 February

DAMAGES – negligence – death of school student – dependency claim by parent of deceased – 16-year-old boy – whether a parent can be regarded as dependent on a child over the age of 16 years – whether dependency claim can be sustained – general damages for loss of support – plaintiff awarded total damages of K47,660.00 – plus interest.

The plaintiff brought a negligence action against a school headmaster, the Commissioner of Police and the State following the death of his son, a school student. The defendants did not file a defence and the court entered default judgment against them. A trial was held on assessment of damages.

Held:

(1) The default judgment resolved most questions of liability in respect of the matters pleaded in the statement of claim.

(2) Therefore the first defendant, the school headmaster, was negligent. However, he had not been notified of the trial or even the default judgment so he was absolved of liability. The second defendant, the Commissioner of Police, was found not to be negligent as a cursory examination of the issues disclosed that there was no cause of action against him. The third defendant, the State, was vicariously liable to the plaintiff for the consequences of the first defendant’s negligence.

(3) In assessing a dependency claim by a parent who has lost the support of his or her child, the court is entitled to consider that the PNG family unit typically involves a much more complex, intricate set of interdependent relationships than in western societies, from where some of the principles governing dependency claims have emerged.

(4) The best approach to take is to consider each case on its merits, free of the strictures of a western or common law prism, and ascertain whether, in fact, a parent who is a plaintiff was or was likely to be dependent on a child.

(5) The plaintiff was awarded damages comprising: dependency loss of K24,960.00; special damages for funeral expenses of K19,700.00; and an estate claim of K3,000.00. The total award of damages was K47,660.00. The State was also liable for interest of K7,648.20, making a total judgment lump sum of K55,308.20.

(6) Costs were awarded to the plaintiff.

Cases cited

The following cases are cited in the judgment:

Abel Tomba v The State (1997) SC518

Albert Baine v The State (1995) N1335

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182

Inabari and Another v Sapat and The State [1991] PNGLR 427

Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167

Jonathan Mangope Paraia v The State (1995) N1343

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779

Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Makire Napiri v The State (2006) N2976

Muna Uokare v The State [1988-89] PNGLR 655

MVIT v Pupune [1993] PNGLR 370

MVIT v Reading [1988] PNGLR 236

MVIT v Tabanto [1995] PNGLR 214

None v MVIT [1990] PNGLR 561

Obed Lalip and Others v Fred Sikiot and The State (1996) N1457

Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694

Peter Wanis v Fred Sikiot and The State (1995) N1350

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Puk Kum v The State, WS No 44 of 1996, 12.09.03, unreported

Reading v MVIT [1988] PNGLR 266

Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78

Simin Dingi v MVIT [1994] PNGLR 385

Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247

Tapi V MVIT [1990] PNGLR 568

Waima v MVIT [1992] PNGLR 254

William Mel v Coleman Pakalia and Others (2005) SC790

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

ASSESSMENT OF DAMAGES

This was a trial on assessment of damages for the death of a boy caused by the negligence of a school headmaster, following the entry of default judgment.

Counsel

P M Dowa, for the plaintiff

H D Polume-Kiele for the defendants

JUDGMENT

21st February, 2006

1. CANNINGS J: This is a case about assessment of damages. The plaintiff’s son, a schoolboy, died and the plaintiff brought a negligence case against a school headmaster, the Commissioner of Police and the State. He claimed that the school headmaster and police officers were negligent and their negligence caused his son’s death. The defendants did not file a defence and the court entered default judgment against them. The case then came on for trial for assessment of damages.

2. On 13 October 2000 the plaintiff’s son, Gibson Komba, died in mysterious circumstances at Tabubil, Western Province. The plaintiff, Paul Komba, is from Suringki, Laiagam District, Enga Province. He was employed in Tabubil as mess supervisor for Fubilan Catering Services. He was living in Tabubil with his wife and family. Gibson was a student at Tabubil Provincial High School. At the time of his death he was aged 13.

Statement of claim

3. On 24 April 2001 Paulus M Dowa Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff.

4. The writ was served on the first defendant on 10 May 2001 and on the second and third defendants on 21 May 2001. The statement of claim endorsed on the writ alleged that on the morning of Friday 13 October 2000 Gibson left home to go to school at 7.30 am. However, no lessons were held that day. A holiday was declared for students and staff. The students left school. Some senior students enticed Gibson to go with them to the Ok Tedi River. An hour later he was dead. His body was found floating on the river. He died due to severe blows to his head, a fractured neck and, possibly, drowning.

5. It was claimed that the first defendant, the headmaster Nauli Duwaba, was negligent as:

· he owed a duty of care to properly supervise classes;

· he failed in his duty by cancelling classes without authorisation and without notifying the deceased and his parents and by failing to keep the school under control.

6. It was claimed that the police, through the second defendant the Commissioner of Police, were negligent as:

· despite repeated requests by the plaintiff and his lawyers the police failed to conduct any investigation into the death of the deceased; and

· the people responsible have never been brought to justice.

7. It was also claimed that the first and second defendants’ acts and omissions were unconstitutional and unlawful. (However, no constitutional provisions were cited in support of this claim.)

8. The statement of claim was framed as a dependency claim. The plaintiff claimed that he and others were dependent on the efforts of the deceased. He was a bright student, doing grade 7. He had good educational and work prospects. He contributed to the welfare of his family prior to his death as he was an artist. He used to paint and print and he made a lot of money for his family.

9. The plaintiff sought the following remedies:

· general damages;

· damages for breach of constitutional rights

· exemplary damages;

· special damages;

· an estate claim of K3,000.00.

Events since service of writ

10. None of the defendants gave notice of intention to defend or filed a defence. On 28 September 2001 Sakora J ordered that default judgment be entered against them and the matter be set down for assessment of damages.

11. In November 2004 the trial was held at Mt Hagen.

PLAINTIFF’S EVIDENCE

Outline

12. Two affidavits were admitted into evidence and the deponents were subject to cross-examination. The first affidavit was by the plaintiff, who gave oral evidence and was subject to cross-examination. The second affidavit was by a doctor who conducted a post-mortem on the deceased. The doctor was not required for cross-examination. His affidavit was admitted by consent.

The affidavits

13. Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS

TENDERED BY PLAINTIFF

Exhibit	Description	Content
A	Paul Komba, plaintiff, 08.01.04	This affidavit gives an account of the circumstances in which the deceased died, where the post-mortem examination was...