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Malit v Pombi [1975] PGSC 22; [1975] PNGLR 151 (19 August 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 151 - Lidia Malit v Pombi

[1975] PNGLR 151

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

LIDIA MALIT

V

NICHOLAS POMBI (FIRST DEFENDANT)

PETER TOURAVAI (SECOND DEFENDANT)

NEW BRITAIN CARRIERS PTY. LIMITED (THIRD DEFENDANT)

Port Moresby

Frost CJ

13-14 August 1975

19 August 1975

NEGLIGENCE - Motor vehicle accident - Leaving of motor vehicle on carriageway in unlighted condition - Travelling at safe speed within range of headlights - Degrees of responsibility - Apportionment of liability.

NEGLIGENCE - Fatal accident - Measure of damages - Claim by widow for benefit of self and child - Remarriage - Relevant considerations - Child with chance of loss of support by native custom - Damages of K.750 apportioned to child - Law Reform (Miscellaneous Provisions) Act 1962, Pt. IV.

In an action for damages under the Law Reform (Miscellaneous Provisions) Act 1962 Pt. IV., the plaintiff, the widow of one J who was killed in a motor vehicle accident on 13th February, 1971, sought to recover damages for the benefit of herself and their only child, who was aged two years at the date of death. At the time of the accident J was a passenger in a motor vehicle driven by the first defendant which collided at night with a motor vehicle owned by the third defendant which had been abandoned by the second defendant in an unlighted condition on the roadway such that it obstructed at least half of a carriageway. At the date of death J was a fifth year apprentice with the Papua New Guinea Electricity Commission and contributed regularly to the support of his wife and child. On 8th September, 1974, the plaintiff remarried and by the date of trial there were two children of this marriage and the plaintiff had resumed her nursing career.

Held

N1>(1)����� the leaving of the unlighted truck protruding so far onto the road, thus creating a totally unexpected danger, constituted a degree of responsibility for the consequences much greater than the omission of the first defendant to travel at a safe speed within the range of his headlights.

N1>(2)����� the responsibility should be borne as to thirty per centum by the first defendant and as to seventy per centum by the second and third defendants.

N1>(3)����� Matters to be considered in assessing damages in an action brought under the Law Reform (Miscellaneous Provisions) Act 1962 Pt. IV, where a widow remarries include (a) whether and to what extent the widow and any dependant child are likely to be as well off in a pecuniary sense as a result of the remarriage as they were under their dependency upon their deceased husband and father (Hollebone v. Greenwood (1968) 89 W.N. (Pt. 2) (N.S.W.) 105 at p. 110 applied); and (b) the lack of any legal obligation upon a stepfather to maintain a dependant child giving rise to a chance of loss which has to be assessed. (Mead v. Clarke Chapman & Co. Ltd. [1956] 1 W.L.R. 76 and Reincke v. Gray [1964] 1 W.L.R. 832 referred to.)

N1>(4)����� In the circumstances the child�s right to support by native custom was not as legally sound as if the deceased were alive, and accordingly the child was entitled to damages for the chance of such loss from the date of remarriage until attainment of 16 years.

N1>(5)����� Of the agreed quantum of damages of K.2,021.00, the sum of K.750 should be apportioned to the child.

Trial

This was an action brought under the Law Reform (Miscellaneous Provisions) Act 1962 Pt. IV by the widow of a man who was killed on 13th February, 1971 for the benefit of herself and the only child of the marriage who was born on 10th January, 1968. The quantum of damages was admitted in the sum of K.3,000.00 which included K.800.00 for damages for loss of expectation of life, and K.179.00 for funeral expenses. The matters for determination were the apportionment of liability between the three defendants and the apportionment of the balance of the agreed damages between the widow and the child.

Counsel

D. J McDermott, for the plaintiff.

W. F. Libling, for the first defendant.

R. H. B. Wood, for the second and third defendants.

Cur. adv. vult.

19 August 1975

FROST CJ: This is an action for damages brought under the Law Reform (Miscellaneous Provisions) Act 1962 Part IV, by Lidia Malit, the widow of Lennie Joseph who was killed on 13th February, 1971, when a collision occurred in a road accident on the Kokopo to Rabaul road.

The action is brought for the benefit of the widow and Darius Lennie, the only child of the marriage, who was born on 10th January, 1968, and was thus two years� old at the time of his father�s death.

The quantum of damages is admitted in the sum of K3,000.00, which includes K800.00 for damages for loss of expectation of life, an action which survived for the benefit of the deceased�s estate, and K179.00 for funeral expenses, leaving a balance of K2,021.00 to be divided between the widow and child.

The facts surrounding the deceased�s tragic death are that on the date in question he was a passenger in the front seat of a Volkswagen car being driven by the second defendant whose two young daughters were in the seat behind. They were making a journey from Kokopo to Rabaul. The accident occurred at night-time at about 7.45 p.m. when the Volkswagen ran into the back of an unlighted truck which was owned by the third defendant and was under the control of the second-named defendant within the scope of his employment by the third defendant. The truck had been left on a straight stretch of country road going slightly uphill about two or three miles from Rabaul. The road surface consisted of 21 feet of bitumen with gravel shoulders on either side, the width on the left-hand side being approximately four feet.

The circumstances in which the truck had been left unattended were described in a statement made by the second defendant to Mr. Greenhalgh, who was an Inspector of Police at Rabaul at the time. The truck, which was a vehicle eight feet in width and used for the cartage of sand had been heavily loaded in the afternoon and then driven towards Rabaul. Unfortunately an axle was broken. The vehicle was brought to a stop a short distance ahead of a culvert marked by two white guide posts at the edge of the road, with the back of the truck protruding five feet onto the road. The front was left hard against a small grassy embankment about a foot further in from the road.

Thus the truck presented a considerable obstruction over approximately half of the left-hand carriageway. The driver claimed that he could not roll the truck backwards, presumably to straighten it up, because he would have gone into a culvert. There was a light with a reflecting surface about 2 to 2� inches in diameter fitted to the offside of the truck but under the tray. There was no evidence as to whether there was a similar light on the left side although Mr. Greenhalgh said it was usual for such a light to be found on each side. Whether the reflecting surface of the light on the right-hand side was obscured to any extent by sand is not known although Mr. Greenhalgh again said that this was quite possible.

The only precaution that the driver took before abandoning the vehicle was to instruct his co-employee to report the breakdown to their employer. It is not contested that the vehicle was abandoned in an unlighted condition.

At the close of the plaintiff�s case the only witness was the second defendant. He deposed that he was travelling at about 35 to 40 miles per hour along the Kokopo Road. As he approached the scene of the accident he could not see the truck. A car came with bright lights from the opposite direction and was visible from the top of the hill. He took his foot off the accelerator and turned to the lefthand side of the road to avoid the oncoming vehicle. The deceased shouted to him but he could not avoid colliding with the truck as the other car passed. He said he had his lights on low beam throughout the journey and it was normal for him to so travel. He said the light showed a beam of only five yards ahead when on dim. He appears to have seen the vehicle but only immediately prior to impact.

Mr. Wood, for the second and third defendants, relied strongly on certain statements made in an interview by the second defendant with Mr. Greenhalgh either on the night of the crash or the next day. These were Pombi�s admission that he was talking at the time of the collision, which Mr. Wood submitted showed inattention to the road, and his admission that he was travelling at 45 miles per hour.

However, the damage to the Volkswagen which was confined to about one foot in from the near side, and its position under the truck � it was not jammed � was said by Mr. Greenhalgh to be consistent with the vehicle travelling at a speed of only 35 to 40 miles per hour.

Counsel for each defendant conceded that there was evidence of some negligence on the part of his client. The only issue was the apportionment of liability as between the defendants. Under the Law Reform (Miscellaneous Provisions) Act 1962 it is provided that in proceedings for contribution the amount of the contribution recoverable from a person shall be such as is found by the court to be just and equitable, having regard to the extent of that person�s responsibility for the damage, and the Court has power to exempt a person from liability to make contribution, or to direct that the contribution shall amount to a complete indemnity (s. 20 (2)). The rule is that where there are proceedings for contribution by each defendant against the other, damages are to be apportioned according to the respective degrees of responsibility of the parties. A. V. Jennings Construction Pty. Ltd. v. Maumill[cxci]¹.

A number of authorities were referred to by Mr. Wood but in the end each case has to be decided on its own particular facts.

I agree with Mr. Libling that Pombi�s estimate of five yards as the length of his dipped beam is to be taken with some reservation, but clearly the range of the headlights was far too short to justify a continued speed of 35 to 40 miles per hour whilst the driver was dazzled by the lights of the oncoming vehicle. Instead of driving blind as it were he should have braked and drastically reduced speed.

The conclusion I have reached is that in driving at 35 to 40 miles per hour with dipped headlights as the first defendant was, he was driving too fast in the particular conditions that existed, leaving himself with insufficient opportunity to take evasive action on seeing the car ahead, and was thus guilty of negligence.

So far as the second and third defendants are concerned there was plainly negligence on the part of the truck driver either in not having the vehicle towed away before nightfall or in failing to take proper precautions by way of lighting or some standard road warning system to give warning of the danger.

It is true that there was at least one reflector, but that was insufficient lighting in a rural area where there was no street lighting.

In my opinion, for the truck driver to leave the unlighted truck protruding so far onto the road, and thus creating a totally unexpected danger, constituted a degree of responsibility for the damage which is much greater than the omission of the driver to travel at a safe speed within the range of his headlights.

The conclusion to which I have come is that the responsibility should be borne as to thirty per centum by the first defendant and as to seventy per centum by the second and third defendants.

Turning now to damages, the Court has to give such damages as it thinks proportionate to the injury resulting from the death to the widow and the child. The deceased was a fifth-year apprentice with the Papua New Guinea Electricity Commission who contributed regularly to the support of his wife and child. There was thus a loss of support, and this continued certainly until the 8th September, 1974, when the plaintiff remarried. Her second husband, Gabriel Kuvil, is a Clerk Class 4 employed at the University of Technology, Lae. There are now two children of this marriage. The plaintiff�s counsel accepted the situation that after the marriage the plaintiff is as financially well off as before. There is no suggestion that it is not a happy marriage. I do not take into account that the widow has resumed her nursing career, and is in receipt of a substantial salary.

There are two matters of law to bear in mind. The first is that when a widow remarries the question for the purpose of assessing damage in actions such as this is whether and to what extent she and any dependent child are likely to be as well off in a pecuniary sense as a result of the remarriage as they were under their dependency upon their deceased husband and father. Hollebone v. Greenwood[cxcii]²�per Sugerman A.P. at p. 110 et seq. So far as a dependent child is concerned, the Court is entitled also to take into account that following the death of his father there is no legal obligation upon a stepfather to maintain, and there is thus a chance of loss which has to be assessed. Mead v. Clarke Chapman & Co. Ltd.[cxciii]³�and Reincke v. Gray[cxciv]⁴.

I do not consider that the plaintiff has proved any loss for the period after her remarriage.

No doubt the child suffered some loss pending his mother�s remarriage although it is difficult to ascertain. The plaintiff freely admitted that in her new household the child is being at least as well provided for as he was by the child�s father, and indeed is accepted as Gabriel�s child so far as entitlement to support is concerned.

However, the child�s right to support by native custom may not be as legally sound as if the deceased was alive, and accordingly the child is entitled to damages for the chance of such loss as from the date of remarriage until he attains 16 years, that is, for 9� years. In accordance with Mr. McDermott�s submissions the sum of K750.00 should, in my opinion, be apportioned to the child.

There will be judgment for the plaintiff against the defendants for K3,000.00 with costs to be taxed. It is further ordered that the amount of the contribution recoverable in respect of the liability of the defendants to the plaintiff shall be as to the defendant Pombi thirty per centum of the said damages and costs, and as to the defendants Touravai and New Britain Carriers Pty. Limited seventy per centum of the said damages and costs.

And it is further ordered that if the plaintiff recover from any defendant an amount of damages and/or costs in excess of the amount of contribution for which such defendant has been found liable as above mentioned then that such defendant shall be at liberty to enter judgment against the other defendant for the total sum so recovered from him by the plaintiff in excess of the amount of such contribution with costs of entering such judgment.

Of the said sum of K3,000.00 it is ordered that there shall be paid into Court the sum of K750.00 to be invested by the Registrar on behalf of the child of the marriage, Darius Lennie, who was born on 10th January, 1969, to be paid together with any interest thereon to the said Darius Lennie on his attaining 21 years, or further order.

Orders accordingly.

Solicitor for the plaintiff: N. H. Pratt, Acting Public Solicitor.

Solicitor for first defendant: D. Reynolds.

Solicitors for second and third defendants: F. N. Warner Shand.

[cxspan>(1956) 30 A.L.JR. 100.

[cxcii](1968) 89 W.N. (Pt.2) (N.S.W.) 105.

[cxciii][1956] 1 W.L.R. 76.

[cxciv] [1964] 1 W.L.R. 832.