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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 1385 OF 2019 (CC1)
BETWEEN:
LONSON LUMALI
Plaintiff
AND:
NATIONAL SPORTS TRUST LIMITED
First Defendant
AND:
PAPUA NEW GUINEA SPORTS FOUNDATION
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Tamade AJ
2022: 21st February, 15th July
ASSESSMENT OF DAMAGES – negligence – death of school student – dependency claim by parent of deceased – a 9-year-old girl – general damages–estate claim, solatium and special damages awarded - plaintiff awarded total damages of K45 520.00 – plus 2% interest on judgment sum.
Cases Cited:
The following cases are cited in the judgment:
MVIL v Manduru (2018) SC1750
Pokau v Wettie [2010] PGNC 88; N4086
Inabari v Sapat & The State [1991] PNGLR 427
Komba v Duwaba (2006) N2979
Andrew Caswell v National Parks Board [1987] PNGLR 458
Pomat v Consort Express Lines Limited [2020] N8300
Abel Tomba v The State (1997) SC518
Hariwaja v PNG Power Ltd [2018] PGNC 388; N7488
Counsels:
Mr. Thomas Ilaisa, for the Plaintiff
Ms. Victoria Balio, for the Defendant
15th July, 2022
1. TAMADE AJ: This is a decision on assessment of damages after a finding on liability by way of a default judgment entered on 12 May 2021.
2. On 18 February 2017, nine-year-old Sheridan Lumali was invited by her friend Geruga Moide to attend her birthday party which would involve recreational swimming at Taurama Aquatic Centre in Port Moresby.
3. At the Taurama Aquatic Centre, there are two swimming pools, one has a 25-meter-deep pool for athletes which is also used as a recreational pool and has a deep end for adults and there is a shallow end for children.
4. Sheridan Lumali was therefore in the pool with her friend Deruga Moide enjoying a swim when an adult guardian by the name of Bethsalom took Deruga and another child towards the deep end of the pool whilst Sheridan Lumali remained at the shallow end of the pool. Sheridan however decided to follow her friend Deruga Moide and the guardian toward the deep end wading out when at the middle of the pool Sheridan Lumali struggled to swim and drowned in the pool. It was about 6 minutes later when the guardian Bethsalom noticed Sheridan’s body floating in the pool that efforts were made to pull her out of the pool, resuscitate her and eventually take her to the Port Moresby General Hospital for medical assistance. Sheridan Lumali died at the Port Morebsy General Hospital eight days after due to her drowning from cerebral Hypoxic brain damage.
5. At the time of passing, nine-year-old Sheridan Lumali was doing grade 4 at the Wardstrip Demonstration Primary School. The Plaintiff Mr. Lonson Lumali, the father of the deceased has filed these claims for damages for the death of his child stating that the Taurama Aquatic Centre has no lifeguards stationed near the vicinity of the pool to ensure the safety of pool users and that their daughter was left unattended at the time she drowned after which the guardian noticed her body floating some minutes later of her drowning. Liability was determined by default judgment and therefore there is no issue as to negligence.
6. At the trial on assessment of damages, the Defendants have not filed any evidence to contest the Plaintiff’s claim but have opted to only make submissions on the matter. The Plaintiff is essentially making the following claims under these heads of damages, and I will address them respectively under the various heads of damages.
General Damages
7. The Plaintiff’s claim under this head is specially for an estate claim and for solatium. At the outset of the trial on assessment of damages, I posed this question to the counsels in this matter on how does a court measure the loss of a child to parents, as unfathomable and deep the grief and trauma is for the loss of such a young life tragically, how does a Court put a value on the loss of such a young life with a long-promised life ahead, of career, of family, of the loss of children she could have grown up to have, of the investments and value she could have given to her family, her community and the country, where is the starting point to quantify damages or compensation if the principle of damages is to restore to as much as money can buy prior to the loss of such a young life gone so tragically? To my mind, counsels have not yet adequately addressed the Court on this.
8. The Plaintiff has relied on section 34(1) of the Wrongs (Miscellaneous Provisions) Act for loss of expectation of life and relies also on the case of MVIL v Manduru [2018] SC 1750 that the Court should award a sum of K8 000 for loss of expectation of life.
9. The Plaintiff also submits that section 29 of the Wrongs (Miscellaneous Provisions) Act provides for a meager amount of K600 for solatium payment and states that as this amount is not discretionary, they only seek an amount of K600 as solatium payment.
10. The Defendants on the other hand have made submissions that the Plaintiff has the onus to prove his losses. The Defendant’s rely on the case of Pokau v Wettie [2010] PGNC 88; N4086 that the effected party must produce primary evidence of injuries sustained, i.e., admissions records, treatment records and information that will go towards determining the injuries sustained at the date of the accident and treatment rendered. The Defendants submit that the evidence must support the pleadings as the pleadings lay down the foundation of the claim.
11. The Defendants submit that the Plaintiff and his wife have not produced any evidence to say that he and his wife have suffered mental stress, pain suffering and frustration for the loss of their child and therefore there is no evidence to support their claim in their pleadings and the claim for general damages should be denied. I find this submission unacceptable and abhorrent to say the least, especially when this is not a case concerning injury sustained in a motor vehicle accident, workplace injury and or any other negligent claim, this is a loss of a child to a parent. As humans, as parents, the loss of children is unimaginable. Parents hope that their children will bury them at old age, that children are their hope, are the hope of society, of community and for a nation. To even say that a parent must prove the pain and suffering of losing a child is to not feel as humans, the trauma of losing a child I can only imagine is carried by parents through out their life and the burden gets somewhat lighter as the years go by depending on how well they carry their grief or receive counselling and heal from the trauma. I refuse to accept the Defendants’ submissions in this regard.
12. I will therefore grant K600 as set by statute under section 29 of the Wrongs (Miscellaneous Provisions) Act as payment for solatium. Though this amount set by statute is inappropriate to the current times.
13. In taking into account the case of MVIL v Manduru referred herein, given that MVIL v Manduru was considered in 2018 and moved away from the conventional awards of K3 000 and gave consideration to the declining value of the kina, an award of K8 000 was considered appropriate for an estate claim. I would therefore uphold the Plaintiff’s submission and grant a sum of K8 000 as an estate claim.
Special Damages
14. The Plaintiff has claimed for funeral and house cry expenses under the heading of special damages. The Plaintiff has relied on the case of Inabari v Sapat & The State [1991] PNGLR 427, Komba v Duwaba (2006) N2979 and Manduru v MVil (supra) to submit that the Court must have regard to the normal and customary obligations that are generated by death in PNG.
15. The Plaintiff is from East Sepik Province in PNG living in Port Moresby and at the death of his daughter, the deceased had to be brought to the Plaintiff’s home province to be buried there.
16. The Plaintiff took out a loan from Bank South Pacific Limited in the sum of K16 000 two days after the death of his daughter to help with funeral and house cry expenses. The Plaintiff states in evidence that there were three ’Haus Krais’, one at 6 Mile Kanage Street in Port Moresby and two Haus Krais in East Sepik, one at his village and the other at his wife’s village and also claims for traveling costs for bringing family and the deceased to East Sepik Province.
17. The Plaintiff claims a sum of K29 240 as costs for return tickets for family and relatives to travel to East Sepik Province and back however I find no evidence of tickets and or receipts to support this claim.
18. The Plaintiff claims a sum of K8 600 for personal contribution to the funeral and house cry expenses from his wage and contribution. However, there are no receipts to prove this claim.
19. The Plaintiff claims a total sum of K53 840, that is K16, 000 from his loan from the bank, K29 240 for costs of family and relatives traveling tickets to East Sepik Province with the deceased and K8 600 from his personal contribution and states that as the Plaintiff and his wife were grieving parents, they did not keep an inventory of their expenses or even keep records of receipts etc and submit that in the exercise of the Court’s discretion, the Court should shave off 5 percent from this total sum and award a sum of K51 148 for special damages. There is no case law or legal basis for this submission.
20. The Defendants on the other hand oppose this head of damage and say that the Plaintiff has not produced any evidence to support this claim nor as he produced any evidence to corroborate these claims and therefore, he is not entitled to any award except a sum of K5 000 as per the case of Hariwaja v PNG Power Ltd [2018] PGNC 388.
21. The Defendants maintain that the Plaintiff is bound to his pleadings in the Statement of Claim and what is not pleaded and or not proved should not be awarded. The Defendants state that the Plaintiff has not pleaded his customary practice in East Sepik of holding Haus Krai to substantiate his claim for Haus Krai expenses.
22. The notion of special damages as pecuniary losses is that they must be proved on evidence by producing receipts etc. In the absence of any receipts, the Court must consider the interest of justice and the notion of customary practices of holding house cries at the time of loss in PNG.
23. PNG is so diverse culturally and the customary practices as to funerals, Haus Krais which are basically holding of receptions to meet family, friends and colleagues to grieve together a loss is evident across PNG. In traditional societies, the giving of food, pigs and traditional feasts before and after burial to all sides of the family of the deceased are tokens of respect and strengthening of family, clan and village ties and are also means of hosting visitors who have attended to pay their respects at one’s loss. The recent trends we see in urban areas are more towards financial contributions towards funeral and related expenses to assist the grieving family transport the deceased back home to their home province and to share this burden financially as reciprocity as at some point in time, friends, family and colleagues will also return the kindness at the other’s loss. As a communal people who operate traditionally in clans and clusters, Haus Krais and assistance at losses have always been a shared responsibility of families and the community as a whole.
24. To my mind, families, relatives and friends would have stood up to help the Plaintiff and his wife at their loss and with the greatest respect to various customs in existence in PNG, I am of the view that such contributions should not be compensable by the Court, they are acts of kindness in fostering relationships in the community and families foremost and as traditional tokens existing in PNG, a grieving family should not benefit from it by asking for recompense from the Court however it should stand to be acknowledged.
25. The customary aspect to my mind that should be compensated is the customary obligation that the Plaintiff and his wife have to meet according to their custom in East Sepik. Unfortunately, there is no such evidence as to any East Sepik custom that the Plaintiff and his wife had to meet. The Court does not have any evidence as to these customary obligations if there exists any in the Plaintiff or his wife’s culture that he and his wife were obligated to meet and therefore it is difficult to make an award for such a customary obligation.
26. The Defendants have stated that after the tragic incident, they have contributed K5 000 to the Plaintiff and his wife for funeral expenses. To my mind, that amount should not be a deductable amount from an award of special damages, it was given as a token of sincerity and or solace at the loss of the Plaintiff and therefore it should only be acknowledged and nothing else.
27. The Plaintiff has relied on the case of Andrew Caswell v National Parks Board [1987] PNGLR 458 and the case of Pomat v Consort Express Lines Limited [2020] N8300 to claim for costs incurred by third parties on account of the deceased death. The facts of the Andrew Caswell v National Parks Board is quite different from this case as in that case, the Plaintiff’s wife had to leave her job to take care of the Plaintiff who was injured. The Court awarded her loss of income for the relevant period in which she had to take care of her husband. The case of Pomat v Consort Express Lines is also different from the facts of this case as the Plaintiff’s parents had to travel from Manus to Port Moresby to take care of the Plaintiff who was injured. The current case is of a deceased child, the third parties who have incurred costs have said to have travelled to East Sepik for the burial and therefore I refuse this submission by the Plaintiff as the third party costs are own their own volition to travel and once the Court opens this gate to consider such third party claims, there will be a flood gate of such claims when it is not for the caring of an injured Plaintiff, this was travel to bury the deceased.
28. Given that there are no receipts and or no corroborating evidence of the claim for special damages for funeral expenses and house cry expenses as well as ticket costs for immediate family traveling to bury the deceased at her burial in East Sepik Province, in the interest of justice and following the case of Paraia v Yansuan, as Police Station Commander (Porgera) [1995] PGNC 25; N1343 (29 June 1995), the Court must award some compensation where it will be unjust to let the Plaintiff go empty-handed. This is what the Court said in the Paraia v Yansuan case with the important considerations underlined;
“On the evidence, however, I am satisfied that a modern semi-permanent three-bedroom house was burnt down, the exact value of which is uncertain. The plaintiff is entitled to damages, he cannot be allowed to go without a remedy. As Vaughan Williams LJ put it in Chaplin v Hicks [1911] UKLawRpKQB 104; [1911] 2 KB 786 at p. 792:
“The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages.”
In the circumstances of the instant case, it the duty of the Court to arrive at a probable value of the house. As Devlin J said in Biggin v Permanite [1951] 1 KB 422 at 438:
“Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can.”
29. I will award a general sum of K26 920 which is about half of what the Plaintiff is seeking from the sum of K53 840 for any loss borne by the Plaintiff and his wife as special damages excluding any contributions from family, friends or third parties occasioned by the loss of their child by the negligence of the Defendants.
Exemplary Damages
30. Exemplary damages are in their nature punitive in nature, it is aimed at punishing the wrongdoer rather than compensating the aggrieved party.
31. The Plaintiff relies on the case of Kua v Patiken [2010] N4103 to say that:
“Better known as exemplary damages, punitive damages are a special category of damages which are awarded for the purpose, not of compensating a plaintiff, but of punishing a defendant – the wrongdoer – for a particularly egregious or wilfully wrongful act, as distinct from a less severe form of wrongful conduct. It provides a deterrent against similar conduct by others (Alex Latham & Kathleen Latham v Henry Peni (1990) N1463; James Koimo v The State [1995] PNGLR 535; Abel Tomba v The State (1997) SC518; Kenneth Bromley v Finance Pacific Ltd (2001) N2097; George Kala v Joseph Kupo (2009) N3677).
32. The Plaintiff has submitted that there is no PNG case that supports the grant of exemplary damage in a negligence case and relies on the overseas case of Gray v Motor Accident Commission [1998] 196 CLR 1 that supports the principle that exemplary damage is available in negligence cases.
33. The Defendants have objected to this award and rely on section 12(1) of the Claims By and Against the State Act which is in the following term;
12. JUDGEMENTS AGAINST THE STATE.
(1) No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages.
34. The Defendants rely on the case of Abel Tomba v The State (1997) SC 518 wherein the Supreme Court had considered an award of exemplary damages against individual policemen and not the State.
35. As liability was entered by default judgment and to my mind the facts of this case do not fall within a consideration in regard to section 12(1) of the Claims By and Against the State Act in regard to breach of Constitutional rights, I refuse to make an award of exemplary damages.
36. In regard to the Defendant’s submissions that the Plaintiff has the onus to mitigate his losses, I refuse this aspect of the submission. Nothing can prepare a parent for the unexpected and tragic loss of a child.
37. As to the Plaintiff’s claim for a lump sum amount of K10 000 as definitive costs of these proceedings to show its condemnation of the actions of the Defendants which resulted in their loss, the Plaintiff relies on the case of Lulug v Samuk [2020] N8585 wherein the Court awarded costs in the fixed sum of K10 000. Costs is a discretionary matter for the Court and as the Plaintiff is claiming that he and his wife need a closure on this case and the trouble of pursuing costs further into taxation will still drag on their pain, I will grant costs to be paid in the sum of K10 000 as reasonable costs for these proceedings having been filed in 2019, and a trial on assessment of damages after an entry of default judgment.
Summary of award of assessment of damages
38. The following are therefore a summary of the awards of damages to the Plaintiff;
39. The total sum of damages and costs is in the sum of K45 520.00.
40. I will remark that no amount of monetary compensation can restore the loss of life of a young child to their parents, to their village and or community. It is hoped that the statutory limits as to payments of solatium will be amended to reflect the appropriate value in today’s tough economic times.
41. The Orders of the Court are that:
Orders accordingly.
_____________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiff
Office of the Solicitor General: Lawyers for the Defendants
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