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Director of Native Affairs v Green [1964] PGSC 8; [1964] PNGLR 24 (4 May 1964)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 24 - The Director of Native Affairs v Harry Neville Green

[1964] PNGLR 24

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE DIRECTOR OF NATIVE AFFAIRS

V

HARRY NEVILLE GREEN

Rabaul & Port Moresby

Ollerenshaw J

17-18 February 1964

4 May 1964

DAMAGES - Negligence causing death - Death of wife by native custom and mother - Actual dependency and dependency by native custom - Assessment of pecuniary loss sustained by husband by native custom and son in replacing her services - Compensation to Relatives Ordinance 1951, ss. 6, 7 - Law Reform (Miscellaneous Provisions) Ordinance 1962, ss. 9, 44.

R. was a subsistence gardener. He also owned a plot of some 700 cocoa trees. I., his wife by native custom, performed for him services of a domestic nature and also assisted him in working his gardens and cocoa plot, in selling surplus garden produce in the native market at Rabaul and in tending some pigs and fowls for home consumption or exchange for home consumption. Their youngest son J., aged approximately twelve years, lived with his parents and was cared for by them. I. was killed in a motor accident due to the negligence of the defendant�s agent. I was some years younger than R. and it was estimated that R. had a life expectancy of about ten years from the date of It�s death. In an action by the Director of Native Affairs to recover damages for R. and J. as relatives of I. who by native custom were wholly or partly dependant on I. at the time of her death:

Held:

N1>(i)������ Damages payable to R. for loss of I.�s services should be assessed at �300.

Berry v. Humm and Co. (1915) 1 K.B. 627; Burgess v. Florence Nightingale Hospital for Gentlewomen, (1955) 1 Q.B. 349; Wilson v. Rutter, (1956) 73 W.N. (N.S.W.) 294; and National Insurance Co. of New Zealand Ltd. v. Espagne, [1961] HCA 15; (1960-1961) 105 C.L.R. 569, considered.

N1>(ii)����� No award of damages should be made in favour of J. because the evidence did not establish pecuniary loss.

There may be circumstances in which a schoolboy may suffer the compensable loss of the pecuniary value of the future services of his mother or of other reasonable expectations of pecuniary benefit by reason of her death, although his father is still alive.

Marsh v. Absolum[1940] NZGazLawRp 39; , (1940) N.Z.L.R. 448; Tong v. Purdy (No. 2), (1941) V.L.R. 147 and Wilson v. Rutter (supra) referred to.

Action:

The facts and arguments of counsel appear sufficiently from the judgment.

Counsel:

Cruickshank, for the Plaintiff.

K. Smith, for the Defendant.

C.A.V.

OLLERENSHAW J: This action under the Compensation to Relatives Ordinance, 1951, is brought by The Director to recover damages for �the benefit of the relatives of� a female native �who by native custom were wholly or partly dependent on� her at the time of her death.

Although the female native was killed before the repeal of the Compensation to Relatives Ordinance, 1951, and the action was not commenced until after the repeal and replacement of that Ordinance by the Law Reform (Miscellaneous Provisions) Ordinance, 1962, it has not been disputed and I do not think that it could be disputed successfully that this action under the earlier Ordinance lies. The right to bring it was preserved by Section 44 of the Ordinances Interpretation Ordinance, 1949-1963, which Ordinance appears also, by its Section 9, to allow the word �him� in Subsection (2) of Section 6 of the Compensation to Relatives Ordinance to include �her�, so that an action may be brought for the benefit of the relatives of a female native who by native custom were dependent upon her. It was not submitted, and I do not see any reason for saying that a contrary intention appears in the Compensation to Relatives Ordinance, 1951.

This Ordinance, so it seems to me, puts for its purposes the relatives of a deceased native who by native custom were wholly or partly dependent upon the native at the time of the native�s death, in a position similar to that of the legal wife, husband, parent or child of a deceased European person.

In the case of both a deceased European and a deceased native the measure of damages is the same, it being provided by Section 7-(1):

�In an action under the provisions of this Ordinance, the Court may award such damages as it thinks proportioned to the pecuniary loss resulting from the death to the persons respectively for whose benefit the action is brought.�

The persons for whose benefit this action is brought are Ropui Birao, who was the husband by native custom of the deceased native, Iavini, and a child of their union called John.

There was some suggestion in the evidence that Ropui and Iavini, who were �married� before the Japanese occupation of New Britain, had been parties to a marriage performed in a church according to the legal requirements for the marriage of Europeans but Counsel for the Plaintiff, from his knowledge or information as to the relevant practices in the case of such natives at that time, took the attitude that whatever had taken place in a church was not the celebration of a legal marriage but some form of ecclesiastical recognition of the native marriage and nothing arose for consideration in this respect.

Iavini was killed on the 20th April, 1962, when a truck of the Defendant, in which she was a passenger, overturned. The agency of the driver is admitted in the Pleadings and at the hearing his negligence was admitted by Counsel for the Defendant who also admitted the death of Iavini as a result of such negligence and announced that the sole issue was the quantum of damages to be awarded.

Ropui�s claim is for the value of the services of his wife which were lost to him as the result of her death. They were both born at Rabagi Village, in the valley beyond and below Vunadadir, and there they lived in the simple conditions of such a village in much the same way as villagers have lived there for generations. They brought up a family of eight children, of whom six were married and had homes and children of their own before Iavini�s death. It appears that their seventh child still lives in the family home, and that he is in his late teens and should soon be married. Their eighth child, John, who is claimed to have been dependent upon Iavini, is about twelve years of age.

Ropui is a subsistence gardener and he has also a plot of some 700 cocoa trees. His claim is for the value of the services of his wife which were lost to him by her death, not only services of a domestic nature, in cooking, cleaning, firewood gathering, water carrying, home rebuilding and so on, but also her services in assisting him in the work of his garden and in the work of his cocoa plot. The garden was the source of much of the food for the family, either directly or by means of exchange. It was also the source of some money in that the occasional surplus of its products over the requirements of the family was offered for sale, and doubtless some of it was sold on some Saturdays in the native market at Rabaul. Iavini took her part in this sale. He also kept, with Iavini�s help, some pigs and fowls for home consumption or exchange for home consumption.

Legally his claim in respect of the loss of domestic services is of the same character as the claim of the Dockyard worker in Berry v. Humm and Co.[xx]¹�. In the same sense that that worker was �dependent� upon his wife for the purpose of Lord Campbell�s Act so, too, was Ropui dependent upon Iavini for the purpose of the Compensation to Relatives Ordinance. There is ample evidence, and it is not disputed that this was a �dependency� by native custom. His claim, too, in respect of the other services of his wife is a familiar one in actions brought under comparative legislation in Australia, where small farmers and others with some land are sometimes helped to build up the family income by the services of their wives in assisting them to earn money or produce food for the family.

Great stress was laid by Counsel for the Plaintiff upon the importance in this action of native custom. Native custom is important for the purpose of establishing �dependency� under the Ordinance and I think, too, that it indicates what substituted services Ropui may expect from another wife in the event of his marrying again. However, as in all such actions as this, the best guide to what services Iavini would have continued to render for Ropui had she not died is to be found in their actual way of life before her death.

Evidence has been led to assist me in the consideration of the relevant matters but much of it, perhaps inevitably, is of a vague character.

To reflect it in reliable figures and to fix a pecuniary value for the domestic services of a village wife, such as Iavini, is, indeed, a difficult task and I am reminded of the words of Lord Watson speaking for the Privy Council in Grand Trunk Railway Co. of Canada v. Jennings[xxi]²:

�...all the Courts below have justly held that the right conferred by statute to recover damages in respect of death occasioned by wrongful act, neglect, or default is restricted to the actual pecuniary loss sustained by each individual entitled to sue. In some circumstances, that principle admits of easy application; but in others, the extent of loss depends upon data which cannot be ascertained with certainty, and must necessarily be matter of estimate, and, it may be, partly of conjecture.�

Of Ropui�s age a medical witness, who had little experience of Tolai or other natives, said that, in his opinion, it was sixty years, plus or minus ten years. From the whole of the evidence and my own observations I think it fair to assume that, in the normal course, Ropui probably will survive his wife for a period of about ten years from the date of her death. I think, too, that Iavini, who was some years younger than her husband, probably would have survived him in the normal course.

In all the circumstances I think that the value of her services would have shrunk over this period of ten years and I consider that I should take a figure of about fifteen shillings per week as the average value of all her services after making allowance for her own maintenance and the like.

From the gross figure so obtained I have made a deduction to represent the contingencies and, what is of little moment in this case, because he will get now the value of services which would have been rendered over a period of years. I think I should add that he is entitled to have that value calculated on the footing that he should be able to draw upon it from time to time and, in his circumstances, I think that it should be considered to be invested in a Bank Savings Account.

By these means I have arrived at, what has something of the character of a round sum, the figure of �300 as the amount of the award to which Ropui is entitled.

I should say that, contrary to the submission of Counsel for the Defendant, I have not made any deduction on account of such assistance or services as Ropui receives from some of his grown-up children who continue to live in his village. I think that these services flow from the family relationship and are not received by reason of the death of their mother, in any relevant sense: Vide Wilson v. Rutter[xxii]³�Per Street C.J. and Herron J. at page 296 and Sugerman J. at pages 298-299, and, with respect to His Honour�s reference to the distinction between death as a causa causans and death as a causa sine que non, see National Insurance Co. of New Zealand Ltd. v. Espagne[xxiii]⁴�and particularly the judgment of Windeyer J. at pages 589-601. Furthermore, similar services were rendered by the children before their mother�s death and it is probable from the state of the evidence that, as they were not then, they are not now entirely voluntary.

I have also not accepted the submission of Counsel for the Defendant, as I understand it, that Ropui�s loss will in a few years be reduced to the cost of his maintenance. I think that this argument involves mistaking (inter alia) �the measuring rod for the thing to be measured�: Vide Wilson v. Rutter[xxiv]⁵, Per Sugerman J. at page 298.

I must come now to the claim on behalf of the son, John. I can imagine circumstances in which a schoolboy may suffer the compensable loss of the pecuniary value of the future services of his mother or of other reason able expectations of pecuniary benefit by reason of her death, although his father is still alive. However, it is clear to my mind that no such case is made out by the evidence in this action. The services his mother rendered to John were rendered for her husband, whose obligation it was to maintain him. They are represented in the award already made in favour of the husband, an award which covers the period during which John will require such services: Vide Marsh v. Absolum;[xxv]⁶�Wilson v. Rutter[xxvi]⁷�and Tong v. Purdy (No. 2)[xxvii]⁸.

It will be observed that I have not yielded to the submission of Counsel for the Plaintiff that Ropui was not the �bread-winner�, but that he and his wife, according to the customs of their people, were engaged in a sort of bread-winning partnership, a partnership which he took care to distinguish from the professional dancing partnership of the husband and wife in Burgess v. Florence Nightingale Hospital for Gentlewomen Committee[xxviii]⁹. I consider, from the evidence, that Ropui was the bread-winner and that Iavini was his helpmate. Notwithstanding difference in their details, the services which she rendered for him were, in any relevant sense, of the same essential character as the services customarily rendered between husband and wife in comparable circumstances in other, including �European� communities.

I have endeavoured to express the law upon the several matters mentioned in this judgment, as I understand it in its application to the facts, out of consideration for the preparation and presentation of the case for the Plaintiff and because I am informed that it is the first of its particular kind on behalf of a native in this Territory and it may be of use in similar cases pending under the Compensation to Relatives Ordinance, 1951, or the substituted but comparable provisions in the Law Reform (Miscellaneous Provisions) Ordinance, 1962.

I pronounce judgment for the Plaintiff for the benefit of Ropui Birao, for the sum of �300 with costs upon the appropriate scale and I direct that judgment for the Plaintiff be entered accordingly.

Judgment accordingly.

Solicitor for the Plaintiff: W. A. Lalor, Public Solicitor.

Solicitor for the Defendant: F. N. Warner Shand.