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Tapi v Motor Vehicles Insurance (PNG) Trust [1990] PGLawRp 320; [1990] PNGLR 568 (21 May 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 568 - Helen Tapi v MVIT�

[1990] PNGLR 568

N877

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TAPI

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

21 March 1990

21 May 1990

DAMAGES - Fatal accidents - Measure of - Dependency claim - Infant dependants - Age of dependency - Town dwellers - Likelihood of town education - Eighteen years appropriate.

INFANTS AND CHILDREN - Age of dependency - Dependency claim - Eighteen years appropriate.

On an assessment of damages for loss of dependency by a widow on behalf of herself and two dependent children,

Held

That in circumstances where the deceased and his family lived in a town and were likely to take advantage of a full education, the age of dependency should be fixed at 18 years.

Cases Cited

Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611.

Statement of Claim

This was the hearing of a dependency claim by a widow on behalf of herself and two infant children and was limited to an assessment of damages.

Counsel

J Pakau, for the plaintiff.

K Yalo, for the defendant.

Cur adv vult

21 May 1990

WOODS J: The plaintiff is the widow of one Vali Tapi who was killed through the negligent driving of Anina Ulawa of a Fuso Truck, registered No ACZ 601 on 4 July 1987. At the time the deceased was driving his Isuzu PMV Bus. The plaintiff sues for and on behalf of herself and her two children Wendy and Depheny. The matter has come before me as an assessment of damages.

The deceased at the time of his death was a self-employed owner/driver of a 15 seater Isuzu PMV. However, up to two months before the accident he had been an employed mechanic. From the end of 1986 to about May 1987, he had been employed as a mechanic by Hagen Wreckers on a gross salary of K150 per fortnight. However, before that in 1985-1986 he had been employed by Nebilyer Trading as a head mechanic on K200 per fortnight.

A witness who was his boss at Nebilyer Trading gave evidence that the deceased was a very competent and experienced mechanic and he had realised from his trade papers that the deceased was one of the first Papua New Guinea trained apprentices.

The deceased was aged around 46 at the time of his death; this age is only an estimate; his eldest child by his first marriage was aged 24 at his death. The evidence is clear that he had strong Christian beliefs and was very much a good family provider, he did not waste his money on cigarettes or alcohol for himself but all of his income went to support his family.

Initially one should look at the figures of K150-K200 to assess the family�s loss from the death of the wage earner, however counsel for the plaintiff has asked me to consider the income figures from his PMV business. However, it is not as simple as that. The claim against the Trust is only for the loss suffered through the death of the deceased, not for the loss of the PMV business.

The PMV business must still be there and if there are problems with the loss of the PMV from the accident, that is a separate property damage or loss claim against the owner of the truck involved. The claim against the Trust can only consider the labour content of the plaintiff himself running his own business. Unfortunately there are no figures showing the breakdown of the return from the PMV business which itemises all income and costs and how the return is split between labour and return of capital. I am asked to consider that, as a qualified mechanic running his own PMV business, the deceased would have increased his earnings or value to at least K300. Without the records to show this and an appropriate period of time to confirm his success the Court cannot assume this.

I find I am left with his proven value as a qualified mechanic capable of earning up to K200 per fortnight.

The deceased was aged about 46 years so for how long can one assume he would have continued working? The public service retiring age is 55 years and I must therefore agree with the judge in Jones v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 611 that that is the appropriate age to work on when assessing past and future loss of income. So I must assess the loss for nine years from 1987 to 1996.

I would assess the benefits of the wife and family from the take-home pay of the deceased at about K110 per fortnight. Realising that from his pay of K150 or more per fortnight tax of about K10-K15 would have been paid.

K110 per fortnight breaks down to about K55 per week. I apportion that to K35 per week to the wife and K10 each to the children.

Of course there are always contingencies to consider, that the deceased may have died before 55 years of age or become unemployed etc. There is no evidence to suggest he was otherwise than in good health and the evidence is quite clear that he was a qualified tradesman who took his job seriously so there was little chance he would just casually give up. I therefore only allow 5 per cent reduction for contingencies.

On the dependency for the two children who were aged 11 and one at the time of the death, whilst I am conscious that the normal dependency age for Papua New Guinea is 16 years and I note that the Child Welfare Act (Ch No 276) states that a child is to be maintained until the age of 16 years, the realities are that children once they go to high school are at school well over 16 years of age. In this case the deceased and his family were living in town and his family still live in town and are therefore highly likely to take advantage of a full education. I find that in the circumstances it is most probable that the two children will be dependent for much longer than 16 years. Of course this only applies to Wendy as the younger one can only be dependent for the estimated working life of the deceased.

Damages are assessed as follows:

Year Dependency

I allow 5 per cent for contingencies. As the plaintiffs were entitled to the funds from the date of the issue of the writ I will allow interest at 8 per cent from 31 October 1988 to today, 21 May 1990.

I order judgment for K23,326.42. From this amount, the sum of K7,925 is to be paid to the Registrar to be invested as to K3,524.60 on behalf of Wendy until she attains the age of 18 years and as to K4,400.40 on behalf of Depheny until she attains the age of 18 years.

The Registrar may apply up to K500 each year out of each girl�s moneys for their education and maintenance. Such moneys to be paid to the school concerned and to the mother.

Lawyer for the plaintiff: J Pakau.

Lawyers for the defendant: Young & Williams.