Robert Wandokun v Manase Leeman

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 21 April 2015
• Citation: (2015) N5950
• Judgment Number: N5950
• Year: 2015

Full : WS NO 693 OF 2004; Robert Wandokun v Manase Leeman and Madang Provincial Government (2015) N5950

National Court: Cannings J

Judgment Delivered: 21 April 2015

N5950

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 693 OF 2004

ROBERT WANDOKUN

Plaintiff

V

MANASE LEEMAN

First Defendant

MADANG PROVINCIAL GOVERNMENT

Second Defendant

Madang: Cannings J

2014: 4 December,

2015: 16 February, 21 April

DAMAGES – negligence – death of 10-year-old boy in car accident – claim by father against negligent driver and driver’s employer – assessment of damages after liability established at trial.

The plaintiff succeeded at an earlier trial in establishing liability in negligence against the defendants regarding the death of his 10-year-old son who was killed when a motor vehicle driven negligently by the first defendant (the second defendant’s employee) struck the boy as he was standing on a footpath. At this trial on assessment of damages the plaintiff claimed: (1) general damages of K70,000.00, comprising (a) loss of life expectancy, K40,000.00; (b) future economic loss, K20,000.00 (c) pain and hardship K10,000.00; (2) special damages K7,400.00; and (3) solatium, K10,000.00.

Held:

(1) General damages were assessed as follows: (a) the claim for loss of life expectancy was regargded as an estate claim and K8,000.00 was awarded; the claim for future economic loss was regarded as a dependency claim, to compensate the plaintiff for the loss of support his son would reasonably have been expected to provide to him and K31,200.00 was awarded; (c) the claim for pain and hardship would fail under the common law, however that law was determined to be inapplicable and inappropriate to the circumstances of the country and disregarded and K10,000.00 was awarded. The total amount of general damages was K49,200.00.

(2) Special damages (funeral expenses) were assessed, after taking into account the substantial personal contribution of the first defendant and the lack of clear evidence of expenditure, as K5,000.00.

(3) Nothing was awarded as a solatium, as compensation for the suffering caused to the plaintiff by the death of his son was included in the award for pain and suffering.

(4) The total award of damages of K54,200.00 was apportioned as follows: first defendant, K18,000.00; second defendant, K36,200.00.

(5) In addition interest was awarded, calculated from the date of entry of the judgment on liability to the date of the judgment on damages, at the rate of 8% per annum, of K2,160.00 against the first defendant and K4,344.00 against the second defendant.

(6) The total awards of damages and interest were K20,160.00 against the first defendant and K40,544.00 against the second defendant.

(7) The second defendant was ordered to pay the plaintiff’s costs of the trial on assessment of damages due to its failure over a long period to cooperate with the Court and the parties in expeditiously resolving the case.

Cases cited

The following cases are cited in the judgment:

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645

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

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

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106

Koko v MVIT [1988] PNGLR 167

Makire Napiri v The State (2006) N2976

Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979

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

TRIAL

This is a trial on assessment of damages for death of a child in a motor vehicle accident.

Counsel

D F Wa’au, for the Plaintiff

G Pipike, for the First Defendant

21st April, 2015

1. CANNINGS J: This has been a trial on assessment of damages. The plaintiff, Robert Wandokun, succeeded at an earlier trial in establishing liability in negligence against the defendants regarding the death of his 10-year-old son, Michael Wandokun. Michael was killed on the morning of 14 November 2002 when a motor vehicle driven negligently by the first defendant, Manase Leeman, collided with him as was walking on a footpath on Modilon Road, Madang, on his way to school. Mr Leeman was at the time driving a vehicle belonging to his employer, Madang Provincial Government. At the trial on liability, which concluded with an oral judgment given on 27 September 2013, Mr Leeman was found directly liable and the Provincial Government was found vicariously liable.

CLAIM

2. The plaintiff claims three categories of damages:

(1) general damages of K70,000.00, comprising (a) loss of life expectancy, K40,000.00; (b) future economic loss, K20,000.00 (c) pain and hardship K10,000.00;

(2) special damages K7,400.00; and

(3) solatium, K10,000.00.

The total claim is K87,400.00 plus interest and costs.

RESPONSE

3. As was the case with the trial on liability, only the first defendant was represented at this trial on assessment of damages. Mr Pipike appeared for the first defendant and submitted that the following awards should be made:

(1) general damages of K7,160.00, comprising (a) loss of life expectancy, K3,000.00; (b) future economic loss, K4,160.00 (c) pain and hardship 0;

(2) special damages K5,000.00; and

(3) solatium, K300.00.

4. Mr Pipike thus submitted that the total award should be no more than K12,460.00. He added, however, that in fact the first defendant should not be ordered to pay any of that amount as he contributed K12,900.00 in cash and kind to the plaintiff and his family for funeral expenses in 2002. Mr Pipike also submitted that the second defendant should be ordered to indemnify (pay back) that amount to the first defendant.

1 GENERAL DAMAGES

(a) Loss of life expectancy

5. The plaintiff claims K40,000.00 in respect of his deceased son’s loss of life expectancy. I regard this as an estate claim under Section 34(1) of the Wrongs (Miscellaneous Provisions) Act, which ensures that if a person dies his or her estate can be sued or can sue, as if the person had not died. Section 34(1) states:

Subject to this section, on the death of a person … all causes of action subsisting against or vested in him survive against or for the benefit of, as the case may be, his estate. [Emphasis added.]

6. For many years the conventional sum to award for this head of damage has been K3,000.00 (Richard Dennis Wallbank and Jeanette Minifie v The State [1994] PNGLR 78 at p 88). In Kembo Tirima v ANGAU Memorial Hospital Board and The State (2006) N3106 I awarded a more realistic figure of K6,000.00. It is time to increase it again. The declining value of the Kina and the interests of justice require that in this case I award K8,000.00.

(b) Future economic loss

7. I regard this as a dependency claim. Mr Wa’au submitted that the plaintiff and his family should be compensated for the loss of his son’s assistance in contributing to the maintenance and welfare of the family. He submitted that a sum of K20,000.00 should be awarded, however he provided no basis for calculation of this amount.

8. Mr Pipike did not object in principle to an award for this category of damages but submitted that only a modest amount should be awarded due to defects in the pleadings.

9. I agree with both counsel that it is proper to award damages to compensate a parent for the loss of financial support that would reasonably be expected to have been provided by their child, had the child not died. I explained in cases such as Makire Napiri v The State (2006) N2976 and Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979, why this is a proper claim; and why I respectfully consider that the approach taken in cases such as Jackson Koko and Elisha Koko v MVIT [1988] PNGLR 167 and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645 – that parents should not be regarded as dependent on their children and should not be awarded damages for a dependency claim – to be unjust and inappropriate to the circumstances of Papua New Guinea.

10. The plaintiff has established a prospective dependency on his deceased son. I find, on the facts, that the plaintiff would have become partially dependent on his son upon his son attaining the age of 21 years and that this would have been the case until the plaintiff died. These are difficult calculations to make and must by necessity be based on a number of assumptions, including the dates of birth of the plaintiff and his deceased son.

11. As for the plaintiff’s deceased son Michael, he was 10 years old on the date of his death, 14 November 2002, so I deem his date of birth to be 14 November 1992 and the date of his 21st birthday to be 14 November 2013. As for the plaintiff, I have viewed him in Court and on the basis of that view and the evidence presented at the earlier trial and this trial, I will invoke Section 63 (age) of the Evidence Act, which states:

In any legal proceedings, if the court does not consider that there is evidence...