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Pagau v Motor Vehicles Insurance (PNG) Trust [1992] PGLawRp 599; [1992] PNGLR 26 (3 February 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 26 - Golue Pagau v MVIT�

[1992] PNGLR 26

N1028

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GOLUE PAGAU

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

20 November 1991

3 February 1992

DAMAGES - Death - Dependency claim - Widow and children - Change in methods of calculating dependency claims - Interest on awards.

NEGLIGENCE - Liability - Motor vehicle accident - Overcrowded vehicle - Contributory negligence.

Facts

The plaintiff claimed damages on behalf of herself and her children for the death of her husband who was killed in a motor vehicle accident when he was a passenger therein. She pleaded negligence on the part of the driver of the vehicle and sued the Motor Vehicles Insurance (PNG) Trust, as insurer. The Trust denied liability.

Evidence was given by witnesses for the plaintiff that while the vehicle was going up a steep rise it stalled and rolled backwards, overturning over a cliff. Evidence was also presented that the deceased was a crew member of the bus.

Issues

N1>1.������ Whether the driver of the vehicle negligently caused the accident and the resulting death of the plaintiff's husband.

N1>2.������ The principles of assessing damages in dependency claims.

Held

N1>1.������ The driver fell below the applicable standard of care, thereby causing the accident and the death of the plaintiff's husband. There was no overloading and, therefore, no contributing negligence.

N1>2.������ Because of inflation, awards following death are to be divided into two parts; the first being actual loss to the dependants up to trial date, and the second being future loss from the date of trial onwards calculated with respect to the deceased's expected future earnings.

N1>3.������ Interest should be awarded on the first part from the date of death to the date of judgment. No interest should be awarded in respect of the second part.

Cases Cited

Papua New Guinea case cited

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Other cases cited

Cookson v Knowles [1977] QB 913; [1979] AC 566 (HL)

Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130

Counsel

DL O'Connor for the plaintiff.

A Kandakasi for the defendant.

3 February 1992

WOODS J:� The plaintiff is the widow of Gegua Wena who was killed following a motor vehicle accident on 25 July 1986 when he was a passenger on a motor vehicle driven by Peter Mondo, which ran off the road and overturned when the driver missed a gear change while going up a steep hill on the Kerowagi - Bongo Road in the Simbu Province. The plaintiff is claiming damages on behalf of herself and her children and alleges that her husband was killed through the negligence of the driver of the passenger motor vehicle. The claim is brought against the Motor Vehicles Insurance (PNG) Trust as the insurer of the motor vehicle and the Trust is denying liability.

The plaintiff called a number of witnesses who gave the following evidence. Kumulgo Degemba stated that he and others including Gegua the deceased got on the PMV bus at Kerowagi to go home to their village. As the PMV was going up a steep hill, the driver stalled as he was changing gear and the PMV rolled backwards and off the road and over the cliff. He said the Bus was not full as they had dropped off some passengers on the way already. Dilo Pagau gave a similar story of the accident and confirmed that the deceased was on the bus at the time.

Temene Simbai lives near the scene of the accident. He came to the scene and saw the 25 seater bus after the accident and saw the deceased lying unconscious and helped to lift him up and transport him to the hospital. Constable Jim Bomai was the police officer who attended the scene and did the police investigation and prepared the road accident report. He said that he saw the bus about 60 metres down the cliff off the road. All the injured had been taken to hospital, so he sought out and obtained particulars of all persons in the vehicle. He discovered that the deceased Gegua Wena was unconscious in Kundiawa Hospital and never recovered but died some weeks later. The constable was told that the deceased may have been the crew of the PMV. The constable in his Road Accident Report lists 29 people as being on the bus, 12 of whom were children 14 years of age and under. However, the witnesses who were on the bus say there were less than that when the accident happened.

The lawyer for the defendant initially challenged the claim on the basis that the evidence does not identify the vehicle involved. However, Constable Bomai clearly confirms he attended the scene and saw the vehicle. He reports the details of the vehicle concerned in the Road Accident Report such as the registration number, the expiry date of the registration and the Third Party Insurance. It must be deemed that he obtained these details from his own investigation and from official police records. In the absence of any other evidence, the Court can accept on the balance of probabilities that these details are correct. So I am satisfied on the evidence of the vehicle involved and of the required insurance.

The lawyer for the Trust further submits that there was contributory negligence by the deceased in staying on an overloaded bus and, further, being responsible for such overloading by virtue of being the crew on the bus as suggested by the police officer. The evidence of overloading is contradictory. Even if the constable's report, much of which was based on hearsay, is true, many of the passengers were children so I am not convinced there was overloading.

This leaves me with the question of any negligence by the driver. We have a PMV driver missing a gear on a steep piece of road. PMV drivers must be expected to be very good and careful drivers as they are responsible for the safety of members of the public who have paid them to drive them. They are required to obtain a special licence. So the Court can expect a PMV driver to always ensure that he is in the correct gear on steep hills, and in this case I am satisfied that the driver was negligent in his control of the vehicle on that day. I find the Trust liable in damages for the death of Gegua Wena.

ON DAMAGES

The deceased was a villager with no regular salary income but relying on his own efforts in the village rural situation. He and his wife had pigs, a small tradestore and vegetable cash crops. Whilst both husband and wife would have worked together in these rural and subsistence activities, the widow's activities will now be scaled down because there is no husband to do the heavy work. The widow was aged about 31 years at the time of the accident and there were four children aged 11, 8, 2 and 1 year at the time of the accident; however, the plaintiff has only claimed on behalf of three of the children. I can assume that the deceased was in the early or middle thirties. I, therefore, must assess the deceased's contributions to the family in a village subsistence economy when there are no definite figures to work from. I will allow K6 per week for the widow and K5 for each of the children until they are 16 years. I estimate the widow would live until at least 55, so I must allow for a dependency of 24 years. I will allow for 20% reduction to the widow for contingencies and 5% contingencies against each child.

I have become increasingly conscious that the National Court has made no distinction in dependency claims between loss incurred prior to the trial and future loss. The Court does calculate such loss in injury matters as pre-trial and future loss. It is time for the National Court to be consistent in all such claims. In England the change of practice in dependency claims was largely brought about by the case of Cookson v Knowles [1977] QB 913 by the Court of Appeal and affirmed by the House of Lords [1978] UKHL 3; [1979] AC 556. In that case the Court held that because of inflation, awards following death were to be divided into two parts; the first part being the actual pecuniary loss to the dependants up to the date of trial, calculated arithmetically like special damages, and the second part being future pecuniary loss to the dependants from the date of the trial onwards, calculated by taking the earnings which the deceased would have been receiving at the date of trial and then applying an appropriate multiplier. Interest should be awarded in respect of the first part of the award only from the date of death to the date of judgment and should be calculated at half the appropriate rate being, as it is, interest on monies that would have been received in successive instalments throughout that period. No interest should be awarded in respect of the second part of the award. Note, therefore, that the change in the method of calculating the damages also affects the way interest is awarded and, thus, changes the principles the Court has applied since Jefford v Gee [1970] EWCA Civ 8; [1970] 2 QB 130 and followed in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160. Cookson v Knowles changed these guidelines, and I must so follow these new guidelines.

DAMAGES ARE ASSESSED AS FOLLOWS

Loss to date of judgement being for 5 years and 27 & half weeks at K6 is K1725 for the plaintiff plus interest at 4% from date of death to date of judgment being K381.48, totals K2,106.48. And for each child at K5 is K1,437.50 plus interest at 4% being K317.90, totals K1,755.40.