Richard Dennis Wallbank and Jeannette Minifie v The State

• Jurisdiction: Papua New Guinea
• Judge: Los J, Brown J, Sakora J
• Judgment Date: 28 October 1994
• Court: Supreme Court
• Citation: [1994] PNGLR 78
• Year: 1994
• Judgement Number: SC472

Supreme Court: Los J, Brown J, Sakora J

Judgment Delivered: 28 October 1994; 4 November 1994

SC472

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA NO. 73 OF 1992

RICHARD DENNIS WALLBANK & JEANETTE MINIFIE

-Appellants-

-V-

THE STATE

-Respondent-

Waigani : Los, Brown & Sakora JJ.

1993 : May 25

1994 : March 31

: August 31,

: October 28

: Nov 4

Damages — Measure of damages — Dependency claim by widow and child — Extent of personal use by the deceased of the available income — pretrial and post trial estimation at variance — No real reason for disparity — Consistency to be sought.

Damages — Measure of damages — Dependency claim — assessment of anticipated lost income from date of death to date of trial — Considerations — Actual basis for estimated annual income to be shown.

Damages — Measure of damages — widows dependency claim — Prospects of remarriage — Common law principle to be applied.

Damages — Estates claim — Head of damage — Claim for "lost years" of income of deceased — Whether damages available in P.N.G.

Appeal — application to reopen appeal by appellant following successful appeal after reasons delivered — principles on which court will consider application to reopen.

The appellants are the executors of the estate of the late Graeme Minifie who was unfortunately killed in a helicopter accident in PNG on the 6 October 1986. At that time he was survived by his wife and daughter aged 4 months, both wholly dependent on him. The deceased was a consulting geologist with his own business whereby he contracted his services for reward to various mining companies in PNG and Australia. He also had entrepreneurial interests in developing a joint venture in the Caribbean seeking gold, and he made an approach to an Australian company with a view to prospecting part of New Zealand to the same effect. On trial, Hinchliffe J gave judgment for the plaintiffs for K326,238 inclusive of the dependants claim and the Estate's claim limited to loss of expectation of life.

The appellants came to the Supreme Court on appeal seeking leave where necessary and alleging that the trial Judge had erred in fact and law in ignoring the widows evidence in relation to her likelihood of remarriage; applying varying percentages before and after hearing to the deceased's anticipated actual use of the family income for his own purposes so as to erroneously apply a 50% deduction to that income available to the dependents to date of trial; in that he had cut down projected annual income assessments made by the deceased's accountant figures without justification; as a consequent of the reduction of the widows dependency to 4 years from the date of trial, there had been a wholly erroneous award of damages and further that the Judge had failed to take into account the estates claim for the "lost years" on the principle of Gammell v. Wilson. The facts appear from the judgment.

On appeal requiring leave against the award of damages on the ground of inadequacy;

Held: (a) Appeal upheld and total award of K513,875 substituted for one of K326,238. In assessing estimated income loss in a situation where actual salary and incentive share bonuses are aggregated, the Court should pay particular regard to the valuation of any share issues or entitlements brought to account whether on a historial earnings capacity, or on market value but that where the factual basis for annual income projections is not apparent, a proper approach is to use the last tax year disclosed income figure for future projections.

(b) Where an entrepreneurial element is present, the Court is required to determine the degree of probability of future hypothetical events, but that on the facts there was no evidence of any accrued benefit to date of death and as such, speculation; which reduces the degree of probability to an extent to warrant the Courts disregard.

(c) A Court should not substitute its own feelings about a widows prospects of remarriage and greatly reduce the dependant years in the face of an expressed intention by a widow (aged 41 at date of hearing) with a young daughter aged 6 not to remarry. An appropriate reduction on common law principles in this day and age should be slight and in this case 10% in lieu of 75% would be appropriate.

(d) In assessing damages under the head of "loss of expectation of life" the general increase in damage awards since the last increase of the "conventional sum" in 1979 was 120% and consequently it is appropriate that the conventional sum be now increased to K3,000

per curiam.

(e) While finding against the Estate's claim in the appeal for the "lost years", (for the plaintiffs had not particularised it in their statement of claim), the Court expressed its opinion, obiter, on the question of whether such a claim was available; if it amounted to "double damages" and the ramifications of such a claim. The Court approved the rationale of Miles J in Vian Guatal v. PNG [1981] PNGLR 230.

After the appeal was upheld on the 31 March 1994 but before judgment was entered, the appellants sought to reopen the appeal.

On application for leave to reopen appeal.

Held: (1) The Supreme Court on appeal has a discretionary power to correct its own mistake. Such a mistake should be seen to be little short of extraordinary and affect an unsuccessful party.

(2) The public interest in the finality of civil litigation must preclude all but the clearest "ship" error as a ground to reopen. No sufficient grounds have been shown in this case.

Cases cited:

Mary Gugi v. Stol Computers Pty Ltd [1973] PNGLR 341

Schiffmann v. Jones (1971) 124 C.L.R. 303

Moini v. Government of P.N.G [1977] PNGLR 39

Paine v. PNG [1979] PNGLR. 99

Kerr v. M.V.I.T. [1979] PNGLR. 251

Skelton v. Collins [1965-66] 115 C.L.R. 115

Pickett v. British Rail Engineering Ltd [1979] 1 All.E.r. 774

Shaw v. Shaw (1951) 2 QB. 429

Roach v. Yates [1937] 3 All.E.R. 442

Oliver v. Ashman [1961] 3 All.E.R. 323

Gammel v. Wilson [1981] 1 All.E.R. 578

Vian Guatal v. P.N.G. [1981] PNGLR. 230

Wise v. Kaye (1962) Q.B. 638

The Administration of P.N.G. v. Carroll [1974] PNGLR. 265

Collins v. M.V.I.T. [1990] PNGLR. 580

Cheung v. Tanda (Civil Appeal 1 of 1983; Solomon Islands Court of Appeal).

Fitch v. Hyde-Cates (1982) 39 A.L.R. 581

McLean v. Carmichael [1969-70)]PNGLR. 333

Hassard v. Bougainville Copper Ltd [1981] PNGLR. 182

Autodesk Inc v. Dyason (2) (1993) 67 ALJR 27

S.C. Review 4/90. Re Wili Kili Goiya [1991)]PNGLR. 170

Warren v. Coombes (1979) 142 142 CLR 531.

Appeal

Mr T. Glen, appeared for the plaintiff

Mr F. Daman, appeared for the State

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 Chapter 297 (the Wrongs Act) 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 the 22 of 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 the 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 the 3 June 1986.

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

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

7. At time of death, his wife and child of the...