Roy Manduru v MVIL

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 28 October 2016
• Citation: (2016) N6509
• Judgment Number: N6509
• Year: 2016

Full : WS No 2008 of 2005; Roy Manduru, for and on behalf of Barnabas Manduru (Deceased) v Motor Vehicles Insurance Limited (2016) N6509

National Court: Cannings J

Judgment Delivered: 28 October 2016

N6509

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 2008 OF 2005

ROY MANDURU, FOR AND ON BEHALF OF

BARNABAS MANDURU (DECEASED)

Plaintiff

V

MOTOR VEHICLES INSURANCE LIMITED

Defendant

Waigani: Cannings J

2015: 10, 17 November

2016: 28 October

DAMAGES – negligence – death of 17-year-old boy in motor vehicle accident – claim by father of deceased against insurance company – assessment of damages, after liability established at trial.

The plaintiff succeeded at an earlier trial in establishing liability in negligence against the defendant regarding the death of his 17-year-old son who was killed when a motor vehicle insured by the defendant was driven negligently and struck the boy as he was walking on a footpath. At this trial on assessment of damages the plaintiff claimed: (1) K8, 000.00 as an estate claim, (2) K273, 000.00 as a dependency claim, (3) K600.00 solatium and (4) special damages of K41, 231.00, a total claim of K322, 831.00. The defendant argued that the plaintiff should be awarded K3, 000.00 + 0 + K600.00 + K675.00, a total of K4, 275.00.

Held:

(1) K8, 000.00 was awarded for the estate claim.

(2) The dependency claim was valid, in principle, its purpose being to compensate the plaintiff for the loss of support his son would reasonably have been expected to provide to him in the period beginning from the deemed date that the son would have been expected to start supporting the plaintiff and ending on the deemed date of death of the plaintiff. The sum was calculated at the rate of K60.00 per week for a period of 10.75 years = K33,540.00

(3) A solatium of K600.00 was awarded.

(4) Special damages were awarded, taking into account the deficiencies in the evidence, in the sum of K10, 000.00.

(5) The total amount of damages awarded was K52, 140.00.

(6) In addition interest was awarded, calculated from the date of the judgment on liability to the date of the judgment on damages, at the rate of 8% per annum = K16, 684.80.

(7) The defendant was ordered to pay the plaintiff’s costs of the trial on assessment of damages.

Cases cited:

The following cases are cited in the judgment:

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

Inabari 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 (2006) N3106

Koko v MVIT [1988] PNGLR 167

Kolaip Palapi v Sergeant Poko (2001) N2274

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

Robert Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950

Roy Manduru v MVIL, WS No 2008 of 2005, 01.11.12, unreported

TRIAL

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

Counsel:

T Ilaisa, for the Plaintiff

P N Rumints, for the Defendant

28 October, 2016

1. CANNINGS J: This was a trial on assessment of damages. The plaintiff, Roy Manduru, succeeded at an earlier trial in establishing liability in negligence against the defendant, Motor Vehicles Insurance Ltd, regarding the death of his 17-year-old son, Barnabus Manduru (Roy Manduru v MVIL, WS No 2008 of 2005, 01.11.12, per Gabi J, unreported).

2. Barnabas was a grade 10 student at Badihagwa Secondary School. He was killed in Port Moresby on the afternoon of 23 September 2002 when a motor vehicle driven by an employee of Boroko Motors, collided with him as was walking on a footpath on Kennedy Road, Gordon. It was established at the trial on liability that the driver of the vehicle drove negligently, that the vehicle was registered and insured with MVIL, that the deceased’s death was caused directly by the negligent driving of the vehicle and that MVIL, being the insurer of the vehicle, was liable in damages.

CLAIM

3. The plaintiff claims four categories of damages:

(1) K8, 000.00 as an estate claim,

(2) K273, 000.00 as a dependency claim,

(3) K600.00 solatium, and

(4) special damages of K41,231.00,

a total claim of K322,831.00.

4. The defendant argues that the plaintiff should be awarded K3, 000.00 + 0 + K600.00 + K675.00, a total of K4, 275.00.

1 ESTATE CLAIM

5. Estate claims are made 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. In Robert Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950 I increased it to K8, 000.00. I award K8, 000.00.

2 DEPENDENCY CLAIM

7. Mr Ilaisa, for the plaintiff, submitted that the plaintiff should be compensated for the loss of his son’s assistance in contributing to the maintenance and welfare of the family. He submitted that the evidence of the plaintiff showed that the late Barnabas was a very intelligent child and an above-average student. The plaintiff testified that it was Barnabas’ ambition to be a doctor. He said that Barnabas’ best mate at school, shared that ambition and that that person is now, in fact, a doctor. The plaintiff is confident that Barnabas would have also become a doctor and would have been in a strong position to provide financial support for the family. Mr Ilaisa submitted that the amount awarded should be at the rate of K150.00 per week for 35 years: K273, 000.00.

8. Ms Rumints, for the defendant, submitted that the dependency claim was based on supposition and speculation and that there was no worthwhile evidence to support the plaintiff’s assertions as to his son’s intelligence or the prospect of his becoming a doctor. The plaintiff is like many parents who have inflated views as to their children’s intelligence. The plaintiff’s evidence is vague and uncorroborated, Ms Rumints submitted.

9. I agree with Ms Rumints that it is difficult for the court to find, on the evidence available, that the deceased would definitely have become a doctor. On the other hand, the Court is entitled to take into account the strength of the plaintiff’s testimony about his son’s ambitions. Ms Rumints submitted that because of the deficiencies in the evidence the Court was obliged to award nothing for the dependency claim. I reject that part of her submission.

10. I consider that, in principle, 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 Makire Napiri v The State (2006) N2976, Paul Komba v Nauli Duwaba, Headmaster, Tabubil High School (2006) N2979 and Robert Wandokun v Manase Leeman & Madang Provincial Government (2015) N5950, 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.

11. The plaintiff has established a prospective dependency on his deceased son. As for the method of calculation of an appropriate award. I agree with Mr Ilaisa’s submission that there are two figures to identify and fix:

• the monetary amount per week, which represents the extent to which the plaintiff would have been dependent on his son; and

• the length of the period of dependency.

12. However, I do not accept the two figures advanced by Mr Ilaisa: K150.00 per week, for a period of 30 years. Both figures are exaggerated and unprecedented

13. As to an appropriate weekly amount to use as the basis for calculation of this category of damages, I refer to three previous cases. In Napiri and Komba I used the sum of K20.00 per week. In Wandokun I used K30.00 per week. In this case, in light of the evidence of the plaintiff, which I regard as credible, as to the prospects of Barnabas becoming a doctor (and therefore in a good position to provide financial support for his father), and taking into account that that prospect was by no means a certain outcome, I...