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Wallbank and Minifie v The State [1994] PGSC 21; [1994] PNGLR 78 (4 November 1994)

PNG Law Reports 1994

[1994] PNGLR 78 - Richard Dennis Wallbank and Jeannette Minifie v The State�

[1994] PNGLR 78

SC472

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RICHARD DENNIS WALLBANK AND JEANETTE MINIFIE

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Los Brown Sakora JJ

25 May 1993

31 March 1994

31 August 1994

28 October 1994

4 November 1994

DAMAGES - Measure of damages - Dependency claim by widow and child - Extent of personal use by the deceased of the available income - Pretrial and post trial estimation at variance - No real reason for disparity - Consistency to be sought.

DAMAGES - Measure of damages - Dependency claim - Assessment of anticipated loss of income from date of death to date of trial - Considerations - Actual basis for estimated annual income to be shown.

DAMAGES - Measure of damages - Dependency claim by widow - Prospects of remarriage - Common law principle to be applied.

DAMAGES - Estate's claim - Head of damage - Claim for "lost years" of income of deceased - Whether damages available in PNG.

APPEAL - Practice and procedure - Application by appellant to reopen appeal following successful appeal after reasons delivered - Principles on which Court will consider application to reopen.

CONSTITUTIONAL LAW - Reception of common law - Assessing dependency claims of widow - Prospect of remarrying - Whether common law appropriate to circumstances of the country.

Facts

The appellants are the executors of the estate of the late Graeme Minifie, who was killed in a helicopter accident in PNG on 6 October 1986. He was survived by his wife and daughter, aged four months, both wholly dependent on him. The deceased was a consulting geologist with his own business, whereby he contracted his services for reward to various mining companies in PNG and Australia. He also had entrepreneurial interests in developing a joint venture in the Caribbean to prospect for gold, and made an approach to an Australian company with a view to prospecting in New Zealand. On trial, Hinchliffe J gave judgment for the plaintiffs for K326,238, inclusive of the dependants' claim and on behalf of the estate.

On appeal, the appellants alleged, inter alia, that the trial judge had erred in fact and law on a number of material particulars: in ignoring the widow's evidence in respect of her unlikehood of remarrying; unreasonably discounting the widow's evidence of the extent of her dependency, so that her pre-judgment loss was assessed at 50%, and not 75%, of the deceased's net income, contrary to the evidence; reducing the widow's dependency to four years from the date of trial; and failing to take into account the estate's claim for the deceased's lost years, on the principle of Gammell v Wilson.

After the appeal was upheld on the 31 March 1994 but before judgment was entered, the appellants sought to reopen the appeal.

Held

N1>1.������ In assessing estimated income loss, in a situation where actual salary and incentive share bonuses are aggregated, the Court should pay particular regard to the valuation of any share issues or entitlements brought into account, whether on a historial earnings capacity, or on market value; but where the factual basis for annual income projections is not apparent, a proper approach is to use the last tax year disclosed income figure for future projections.

N1>2.������ Where an entrepreneurial element is present, the Court is required to determine the degree of probability of future hypothetical events; but on the facts, there was no evidence of any accrued benefit at the date of death and, as such, it is speculative. This reduced the degree of probability to an extent to warrant the Court disregarding it.

N1>3.������ A Court should not substitute its own feelings about a widow's prospects of remarrying and greatly reduce the dependent years in the face of an expressed intention by a widow (aged 41 at date of hearing), with a young daughter, aged six, not to remarry. An appropriate reduction on common law principles in this day and age should be slight. In this case, 10% in lieu of 75% used by the trial judge would be appropriate.

N1>4.������ In assessing damages under the head of "loss of expectation of life", the general increase in damage awards since the last increase of the "conventional sum" in 1979 was 120%. Consequently, it is appropriate that the conventional sum be now increased to K3,000 per annum.

N1>5.������ While finding against the estate's claim in the appeal for the "lost years", for the plaintiffs had not particularised it in their statement of claim, the Court expressed its opinion, obiter, on the question of whether such a claim was available; if it amounted to "double damages"; and the ramifications of such a claim. The Court approved the rationale of Miles J in Guatal v PNG [1981] PNGLR 230.

N1>6.������ The Supreme Court, on appeal, has a discretionary power to correct its own mistake. Such a mistake should be seen to be little short of extraordinary and affect an unsuccessful party.

N1>7.������ The public interest in the finality of civil litigation must preclude all but the clearest "slip" error as a ground to reopen. No sufficient grounds have been shown in this case.

Cases Cited

Papua New Guinea cases cited:

Administration of PNG v Carroll [1974] PNGLR 265.

Collins v MVIT [1990] PNGLR 580.

Guatal v PNG [1981] PNGLR 230.

Gugi v Stol Commuters Pty Ltd [1973] PNGLR 341.

Hassard v Bougainville Copper Ltd [1981] PNGLR 182.

Kerr v MVIT [1979] PNGLR 251.

McLean v Carmichael [1969-70] PNGLR 333.

Moini v PNG [1977] PNGLR 39.

Paine v PNG [1979] PNGLR 99.

SC Review No 4 of 1990; re Goiya [1991] PNGLR 170.

Other cases cited:

Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 67 ALJR 270.

Cheung v Tanda [1984] Solomon Islands Law Reports 108.

Fitch v Hyde-Cates [1982] HCA 11; (1982) 39 ALR 581; 56 ALJR 270.

Gammell v Wilson [1981] 1 All ER 578; [1982] AC 27; [1981] 2 WLR 248.

Oliver v Ashman [1961] 3 All ER 323; [1962] 2 QB 210; [1961] 3 WLR 669.

Pickett v British Rail Engineering Ltd [1979] 1 All ER 774; [1978] 3 WLR 955; [1980] AC 136.

Roach v Yates [1937] 3 All ER 442; [1938] 1 KB 256.

Schiffmann v Jones (1970) 92 WN (NSW) 780.

Shaw v Shaw [1954] 2 QB 429; [1954] 3 WLR 265; [1954] 2 All ER 638.

Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94; 39 ALJR 480; [1966] ALR 449.

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531.

Wise v Kaye [1961] EWCA Civ 2; [1962] 1 QB 638; [1962] 2 WLR 96; [1962] 1 All ER 257.

Counsel

T Glenn for the appellant.

F Damem for the respondent.

4 November 1994

LOS BROWN SAKORA JJ: The appellants are the executors of the estate of the late Graeme John Minifie, who died whilst a passenger in a helicopter which crashed into the Popio River, Gulf Province, on 9 October 1986. It struck a cable strung across the river to facilitate the measurement of water flow. Whilst liability was not admitted, the respondent's defence was, by an earlier order, struck out. The claim before his Honour Hinchliffe J in the National Court was one for assessment of damages only. The plaintiffs brought their action on behalf of the estate of the late Graeme John Minifie (the deceased), pursuant to Part V of the Wrongs (Miscellaneous Provisions) Act Ch 297 (the Wrongs Act), and on behalf of the surviving widow and child, Rosalind, pursuant to Part IV of that Act.

On 15 May 1992, Hinchliffe J gave judgment for the plaintiffs in the total sum of K326,238 and interest from 15 May 1992 to the date of payment of that judgment at the rate of 8% per annum. It is from that order that the appellants come to this Court, seeking leave to appeal the trial judge's findings of fact, where leave is required, and other findings on questions of law or mixed questions, where leave is not required.

The appellants seek orders quashing the whole of the judgment of the trial judge and award of damages, as this Court considers just and appropriate, with interest and costs. The damages sought in argument before us far exceed the trial judge's award. The lawyers for the appellants have prepared a template for assessment of damages for this Court's assistance, a template which we have used later in the course of our reasons. We have found that template helpful.

THE FACTS

To help in understanding the basis of the appeal, we set out a statement of agreed facts:

N2>1.������ The deceased was born on 22 October 1951 and, at the time of the accident causing his death, was a self-employed geologist and company director.

N2>2.������ The plaintiff/appellant, Jeanette Minifie, was born on 14 September 1950 and was, at the time of her husband's death, wholly dependent upon him.

N2>3.������ The deceased and Jeanette Minifie were married on 14 August 1979.

N2>4.������ The only child of the marriage is Rosalind Minifie, born on 3 June 1986.

N2>5.������ The child of the marriage was wholly dependent upon the deceased.

N2>6.������ Graeme John Minifie died on 9 October 1986 in Papua New Guinea.

N2>7.������ At the time of death, his wife and child of the marriage were living in Australia, although the deceased was working in Papua New Guinea.

N2>8.������ The career path which the deceased was likely to follow was that of a consulting geologist.

GROUNDS OF APPEAL AS A RESULT OF CERTAIN FINDINGS OF THE TRIAL JUDGE

The damages were assessed having regard to factors which the appellants say adversely impinged on the appellants' real entitlements. The appellants say that the trial judge erred in finding that the widow could be expected to re-marry and rejecting the widow's evidence on her intention in that regard. As a result, there was a finding of dependency only to 1996, when she was expected to re-marry. The appellants contend there was no evidence to support such a finding. Consequently, the post-hearing future loss of dependency was greatly discounted. This was an error.

As well, the trial judge erred in unreasonably discounting the widow's evidence of the extent of her dependency so that her pre-judgment loss was assessed at 50% and not 75% of the deceased's net income, contrary to the evidence.

As a result, the appellants say, the trial Judge erred in finding damages in an amount of K326,238, and no more.

The appellants also criticised the trial judge's apportionment of the dependent's loss between the widow and the surviving child, Rosalind. They contend that he failed to consider the child's increasing financial needs to 18 years of age and, in his award of damages to the child after 1996, the trial judge failed to take into account the loss of shared benefits derived from the deceased's income.

The other grounds of the appeal will appear from the arguments advanced by the appellants. We should also say at this time that the appellants argue that the estate claim should have included damages for loss of earnings during the deceased's "lost years".

As we deal with the particular grounds and the appellant's submissions, it would be apparent that, where needed, leave to appeal has been given. We consider the questions of mixed fact and law are so interwoven with unresolved factual matters that we consider leave should be given in any event.

The appellants rely on the rationale in Gugi v Stol Commuters Pty Ltd [1973] PNGLR 341, where it was said that the dependants were entitled to recover that amount "which was equivalent to the loss of economic and material advantages which the deceased had been expected to have provided to the dependants". The factual basis on which the trial judge arrived at a figure for annual earning and projected future earnings was not altogether clear, for the judge relied on various options which had been prepared from a report and formed part of a schedule prepared by Mr Terrence Moore, the deceased's accountant, which was tendered as an exhibit in the trial. While relying on a global figure in an amount of K225,000 as income for a consulting geologist from October 1986 to date of trial, we are of the view that the use of the schedule prepared by Mr Moore cannot be related to any underlying primary sources to justify the figures sufficient for this Court to be satisfied of the basis of such figures. It would seem, for instance, that the "consulting geologist option schedule", includes an element for share allotments and option entitlements in favour of the deceased from time to time by particular mining companies. We cannot ascertain how those share issue entitlements or options have been valued for inclusion in the assessment of annual income set forth in the schedule.

Mr Moore's evidence touched on a company, East Caribbean Mining Development Ltd. No such entity existed. A form of agreement was tendered, apparently with the consent of the State, which was neither executed by the parties nor stamped, and which recited no mining tenements, for instance, held by any parties named in the document, in any part of the Caribbean. Although Mr Minifie had not been to the Caribbean, Mr Moore said that he intended to go. Mrs Minifie apparently obtained no benefit under this document, although her name had been substituted for that of her husband.

Mr Moore spoke of incentive shares issued by mining companies to consulting geologists. He said Mr Minifie received a "large interest" from Niugini Mining. They were described as 20,000 shares valued at A$1.80 per share and 100,000 shares to be issued at par. No documentation was produced touching on these incentives. In fact, the letter of intent of Niugini Mining dated 10 January 1986 made no mention of any such incentives but particularised a daily rate for geological services in Papua New Guinea of A$350. The agreement was to run until 31 December 1986. Later, when asked about the shares, Mr Moore said Mrs Minifie paid A$1.60 each for the 20,000. He said she sold them for A$2.60 each. There was no evidence whatsoever to show if the purchase price of A$1.60 was at a discount to the market or not. Yet Mr Moore had, in his schedule 1, brought Niugini Mining to account on a pre-October 1987 sale price of A$16.80 per share for 100,000 shares. In the same schedule, he had brought Austpac Gold to account at A$1.10 per share for 50,000 shares, and the East Caribbean company to account at A$1,440 for estimated profit. A contemporary and friend of Mr Minifie, Mr Gregory John Corbett, also a consulting geologist, had already said in evidence that Graeme Minifie "took something to Auspac (Gold), and we gave him a carried interest." Had it come to something, it would have made a lot of money, but it wasn't proceeded with. Yet Mr Moore has brought an interest in all these companies to account, when such an interest had no basis in fact on the evidence.

The trial judge quite rightly disregarded the first schedule prepared by Mr Moore. Mr Corbett was not asked about Mr Minifie's approach to Austpac Resources (Gold) by letter of 20 August 1986, suggesting a joint venture in New Zealand, despite Mr Corbett's position in the company as Chief Geologist.

Yet, on the strength of that letter by Mr Minifie, Mr Moore was able to put a value, by way of estimated profit, of A$436,000 on the proposal. Mr Moore is nothing if not enthusiastic about the entrepreneur prospects.

We now pass to the income projections in the second schedule prepared by Mr Moore. Mr Moore's hypothetical income projections have been based, it seems to some extent, on these ephemeral interests. This schedule was the basis for the trial judge's calculations.

Exhibits 13 and 14, the tax return for the deceased for the period July 1984 to June 1987 and the tax returns of Graeme Minifie & Associates Pty Ltd to June 1987, did not form part of the appeal book. A close inspection of those tax returns may have enabled us to relate the option 2 in the schedule to the annual income of the deceased. We have no tax return details of his income leading up to the time of his death. We do not know the basis of the accountant's hypothesis for the income projections beyond the date of death. Exhibit 12 was the tax returns of the widow. They presumably would show what income she received from the company, if any, post 1987, for the accountant placed great emphasis on the benefits which would continue to flow from the consultancy business. No returns of the company beyond June 1987 (the tax year in which Graeme Minifie died) were tendered. Since he was, in effect, the only employee, on Mr Moore's evidence, the presumption left is that the company afforded her no benefits. We must assume, however, that as a consulting geologist, those income projections included an element for various share allotments. We do not know how those share allotments have been brought to account on an annual basis, and consequently we cannot accurately review the figures which appear to have been accepted by the trial judge. The appellants criticised the trial judge's comments whereby he has discounted these projections, but we are left to a great extent without any factual material on which to critically review the accountant's figures in the schedule. On the evidence, it is clear one incentive share allotment was made by Niugini Mining.

LOST INCOME TO DATE OF HEARING: DEGREE OF PROBABILITY OF FUTURE HYPOTHETICAL EVENTS TO BE ASSESSED BY TRIAL COURT

Without proper actuarial evidence of the value of that allotment on a historical earnings capacity, for instance, so as to include a notional sum for earnings, over and above the deceased's salary, we consider the trial judge's reliance on the estimation of income in option 2 had little actual basis beyond the financial year of death.

In those circumstances, taking account of the inherently unreliable nature of Mr Moore's predictions, the trial Court has erred, where proof of future earnings is necessarily unattainable, in proceeding to an assessment of economic loss up to, and from the date of trial, by reliance on yearly income figures which are in the realm of mere speculation. Where earnings in the financial year following the date of death show an incremental increase on the previous year, that following year may be a reasonable projection of the anticipated earnings of the deceased, had he survived. (Such incremental increase we presume, for we have not the benefit of the tax return details of the deceased for the last financial year). While the evidence suggested that his entrepreneur bent would have amassed him increasing wealth, the degree of probability of the occurrence of these future hypothetical events must be assessed by the trial Court. In this case, on the evidence, while hope reigned supreme, the deceased's income came from consulting geologist work in Australia and Papua New Guinea, and was related to an hourly rate capable of mathematical precision in an annual amount. In November 1991, Mr Corbett says that he earns A$650 per day as a geologist in the field. In 1986, Mr Minifie had fixed a rate with Niugini Mining of A$350 per day. Mr Corbett's apportionment of field work to office work was 210 field days to 60 office, per annum. Allowing an increase in the following year to A$450 per day and applying a one-third deduction for office work, a theoretical annual income for Mr Minifie would be (i) field work A$450 x 210 days = A$94,500 plus (ii) A$300 x 60 days = A$18,000 totalling A$112,500.

We consider that a fair assessment of the moneys utilised by the deceased for his own purposes, on the evidence before the trial judge, would not have exceeded 25% of the total income and, consequently, the dependant's share of the total sum should be 75% for the whole period from the date of death. To that figure should be added an interest component, as has been included in the template.

REMARRIAGE PROSPECTS

The effect of a possible remarriage has been touched on by the trial judge. He said:

"Although she believes that she will not marry again, I am of the view that is most unlikely. As I say, she is well presented. She is back in the work place full time and is very likely to meet many people. It is not uncommon that she feels that she won't remarry, but life must go on, and sometimes it is such things as a court case such as this one which is distracting as far as getting on with one's future and family. She has only one child, and I would have thought that she would be very lonely in later life if she does not remarry. Apart from her sorrow from the loss of her husband, I see no reason why she will not in the not so distant future find another partner. In fact, I would have thought that she is underestimating herself somewhat and that, in fact, she would be very much in demand. I feel that she is sensible enough and concerned enough to realise that her daughter would benefit from having a male to listen to and to take advice from. He may not replace Mr Minifie but he certainly would be an asset to Mrs Minife and her daughter. Because of what I have said, I am of the view that I should assess damages for Mrs Minifie up to mid 1996 because, to my mind, it is likely by that time that she would have remarried."

The appellant says, firstly, that the trial judge's findings to the effect that Mrs Minifie was likely to remarry by mid 1996 was contrary to the evidence. She said in her evidence in chief:

N2>Q.������ What about remarriage?

N2>A.������ Unlikely.

N2>Q.������ Why?

N2>A.������ I haven't got over the death of my husband. Not sure I ever will. I live with my daughter in separate accommodation.

She was cross-examined.

N2>Q.������ Any intentions of remarriage?

N2>A.������ No - it would not give my child a father. Her father is dead. Very special relationship with husband. He was my husband and my best friend.

It can be seen then that the judge's comments do not depend to any extent on her evidence, which stood uncontradicted, but possibly on an unexpressed reliance on previous court decisions. The variations in prospects, coupled with the manner in which New South Wales courts, in any event, have dealt with the assessment of such prospects, gave rise to criticisms by the New South Wales Court of Appeal in Schiffmann v Jones (1970) 92 (NSW) 780. Subsequently, a table of widows' remarriage rates was published in the Australian Law Journal Volume 45 at p 159. This shows that, of 41-year-old widows, there is only a 16% probability of remarriage occurring within five years, the probability of remarriage at some time is 37%, and for those who do remarry, the average duration of widowhood before remarriage is 7.7 years. If the trial judge was endeavouring to estimate prospects without data then he was in error. We consider his approach in assessing the prospects, in contradiction of the evidence of the widow and without apparently relying on either published data or previous PNG cases illustrating a range of allowances, was such a mistake requiring this Court's interference, for, as the appellant says, it has resulted in an award which was so inordinately low as to be a wholly erroneous estimate of damage.

The judge has effectively allowed her only four years of dependency. His comments bring into sharp relief the dichotomy which has occurred between other common law countries, which ignore or apply only a slight discount, and Papua New Guinea in dealing with the effect of a possible remarriage.

Her prospects of remarriage, when a court is assessing a "dependency" claim, cannot, in our view, be conclusive on "dependency". Factors such as the attitude of a possible future husband to his wife's lifestyle, the effect of his largess towards her in this increasingly self-centred society, coupled with the earning power, economic worth, age, or health of any such husband illustrates why the common law of England has been changed by legislative enactment, so that there shall not be taken into account the remarriage of the widow or her prospects of remarriage (Law Reform (Miscellaneous Provisions) Act 1971 (UK)).

That is not the law in Papua New Guinea, for the common law of England at Independence has been declared to take account of these prospects in Gugi v Stol Commuters [1973] PNGLR 341 and afterwards in Moini v PNG [1977] PNGLR 39; Paine v PNG [1979] PNGLR 99; Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.

The appellant invites this Court to find that this common law precedent should no longer be followed if we find that to take account of remarriage prospects to reduce an award of damages is inapplicable or inappropriate to the circumstances of the country at this time, per Constitution Sch 2.2(1). Mr Glenn's argument cogently raised the factors which, no doubt, the United Kingdom legislature had regard to when it thought fit to pass its reform legislation abolishing the common law rule.

The fact of remarriage presupposes that some financial benefit will be gained by the widow from that marriage. The losses she has suffered through the death of her former husband shall cease on remarriage. That is an old-worldly view of the economic dependence of the female spouse, a view which we venture to say takes neither account of current actual practice, where married women work, nor a female rights activist's view that the separate property of the widow should not be charged with the prospects of her remarriage. These concepts of women's property rights may sit well in a developed western society, but are they necessarily appropriate in Papua New Guinea, with its traditional clan and extended family support structure? This appeal, dealing as it does with an expatriate widow, aged 43 and presently living in Australia, is not an appropriate case to reconsider the common law principle. Suffice to say that, in our view, the trial judge erred by applying what was, in effect a 75% deduction of damages flowing from the dependency claim, when only a very small deduction should have been made. This approach reconciles the widow's evidence, that she has no wish to remarry, with the acceptance by us of the current law, which does take into account her prospects of remarriage as a deducting factor affecting the damages. It is not, of course, a matter of logic. The illogical basis for such a deduction has been recognised in many cases. Moffitt JA quotes extensively from Schiffmann v Jones (supra). After dealing with the particular facts and evidence in relation to remarriage before him, he went on to say at p 794:

"Where in a case there is no more to go on than a general chance of remarriage, then, whether it has been possible to adduce admissible statistical evidence concerning the percentage of widows who remarry at some time or times or whether such percentages can be treated as a matter of common knowledge, such percentages must be substantially reduced at the outset because of the delay factor and the most likely further reduced because of other considerations to which I have referred. Where the evidence establishes a prior stable marriage with apparent financial security, it seems that there is no reliable basis to adjust the verdict except by a modest percentage or sum. If there are special reasons why the particular widow may not remarry, the proper approach will usually be to reduce the verdict by a very small amount indeed. In a particular case the chance may be so slight that the deduction is nominal and therefore, for practical purposes, nothing [Goodburn v Thomas Cotten Ltd, cited with approval by this Court in Lowe v Moeller]."

The statistical evidence of remarriage we have touched on. The widow's statements on the issue have been reproduced. We consider the deduction called for is minimal. It shall not exceed 10%.

The next aspect which we are asked to address is the dependant's pre-judgment loss, assessed at 50% of the deceased's net income. This loss is described by the appellant as that portion of the deceased's earning lost to Mrs Minifie and Rosalind. The trial judge was satisfied that these two were wholly supported by the late Mr Minifie's income. He also agreed to part of the plaintiff's figures (referring to "the second option") but has seemingly halved the deceased's earnings and treated the remaining half as that lost to Mrs Minifie and Rosalind to the date of judgment. He went on to allow 75% of the earnings from the time of judgment for the allowed dependency period, which percentage was argued by the plaintiff as the appropriate share available to the widow and child, based on overseas authorities, statistics, and, as Mr Glenn says, common sense. The defendant, on the other hand, in its submissions relied on the evidence pointing to much income going back into the business, so that 75% could not have benefited the family. The trial judge has noted "agreed" next to this part of the defendant's written submission, so that the judge's reduction of the income part available to the dependants to 50% was not, as Mr Glenn says, a mistake but, rather, the judge's expressed disagreement with the plaintiff's approach. Was the judge entitled to disagree as the evidence stood?

It seems to us that where the potential for increased income in later years is promoted by the investment of a proportion of current income, and the plaintiff relied on that use to support its claim to a quite large arithmetic increase in future years, it cannot also claim a share in the "business expenses" lost to fuel the anticipatory future increase. While the deceased may have had a frugal life style, so, it would seem, did his wife and child while he was utilising income in a fashion calculated to further his speculative interests and his geology consultancy business. We, consequently, see no real criticism in the judge's approach, reducing as he has the assessment of a 75% attribution of income common for dependants' use to one of 50%, since the evidence was clearly that Mr Minifie's business was somewhat out of the ordinary, and available money was not used to benefit his dependants. Again, after judgment he has allowed 75% of the anticipated income. This seems to recognise a likely increase in the value of shared benefits, for instance, a much more expensive home, vehicles, furnishings, and perhaps private schooling commensurate with his hopefully greater status in his chosen career path. The accountant has, however, included an amount of approximately 20% of the gross income of Graeme Minifie & Associates as business expenses. We must accept that as a fair estimate, in the absence of evidence to the contrary. To then further discount the share of net income available to the dependants has no basis. The proportion of net income available for use by the dependants then should be assessed at 75%.

THE ESTATE'S CLAIM

The claim is brought on the estate's part under Part V of the Wrongs (Miscellaneous Provisions) Act Ch 297 (Wrong Act). This part is the same as Part V of the Law Reform (Miscellaneous Provisions) Act 1962 (as amended), the act judicially considered in cases which we refer to later.

INCREASE OF SUM FOR LOSS OF EXPECTATION OF LIFE

The appellants' first point is that the trial judge effectively doubled the conventional sum for loss of expectation of life to K3,000. The respondent did not mount an argument against the reasons advanced by the appellants. These were that the Supreme Court has found need to vary the award in the past and that the fall in the value of money since 1978 (the last variation) justifies an increase. Rather, the respondent was content to rely on the support afforded by the string of awards since 1978. The increase in the damages awarded from 1979 to 1991 was shown to be in the vicinity of 120%, so that we are minded to allow that part of the appeal and award K3,000 for loss of expectation of life.

ESTATE'S CLAIM FOR LOST YEARS

As well as the claim for loss of expectation of life, there is a claim for "lost years", Mr Glenn says. The gradual increase of heads of damage now includes damages for loss of future earning capacity by an injured living plaintiff based on his pre-accident expected working life. In Kerr v MVIT [1979] PNGLR 251, the trial judge's acceptance of this claim went unchallenged in the Supreme Court on appeal. Kerr's case follows Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94 and corresponds with the decision of the English House of Lords in Pickett v British Rail Engineering Ltd [1979] 1 All ER 774.

That head of damage available to an injured living plaintiff accrues to the estate where a plaintiff dies before action. The measure of damages, Mr Glenn says, is the amount of future earnings which would have been earned less the savings on living expenses during that period. It is much the same claim as that of the dependants for the lost years, with the exception that no discount from the working life to take account of the actual dependency applies. In other words, if the widow, in fact, worked before her husband's death, and was not wholly dependent, that fact would not reduce the estate's claim.

Part V of the Wrongs Act, Mr Glenn says, allows for the survival of most causes of action for the benefit of the deceased's estate, and this claim for the lost years is one such cause which survives and, consequently, should have been admitted by the trial judge.

The statement of claim failed to particularise any claim for the "lost years", the plaintiffs being content to, in clause 7, seek "damages for loss of expectation of life". The trial proceeded by way of assessment only. The assessment then related to loss of expectation of life.

When opening, Mr Kua for the plaintiff pleaded Part V of the Wrongs Act as providing for the estate's claim and, thereafter, proceeded to open on the dependency claim, which included a claim, discounted for the period of dependency, for the lost years. He never alluded to any separate estate claim for the lost years.

The National Court Rules do not require a plaintiff to characterise his cause of action within a legal framework, although he has, in fact, done that when calling the estate's claim as one for "loss of expectation of life". The National Court Rules O 8 r 7 merely ask that the plaintiff plead the facts on which he seeks to rely. If established on the evidence at the hearing, the Court may find an award for damages according to any principles of law which have developed, whether by common law, statutory effect or development in Papua New Guinea on a case-by-case basis. There is no need "to put a label on his cause of action".

In Shaw v Shaw [1954] 2 QB 429 at 441, Denning L J said:

"It is said that an implied warranty is not alleged in the pleadings, but all the material facts are alleged, and in these days, so long as those facts are alleged, that is sufficient for the court to proceed to judgment without putting any particular legal label upon the cause of action."

The problem which the appellants face here, of course, is that the estate's claim for "lost years" is an after-thought. It was never argued before the trial judge, and he was never asked to make an award of damages on that head. As Mr Glenn says, there has been no decision of the Supreme Court on the question of the estate's right to recover damages for the lost years. There can be no re-opening, as it were, of the plaintiff's case in this Court with a claim for a fresh head of damage which had not been alluded to in the trial.

Having regard to the way in which the pleadings were drawn, with a clear correlation between the dependency of the surviving widow and child and the income and earnings of the deceased (but no intimation, in fact, that the estate has suffered a loss by virtue of the diminution of income consequent upon the death), limiting the claim to the extent that it had "for loss of expectation of life", we do not permit the plaintiff to put forward this claim at this juncture. The National Court Rules have not been complied with, for no particular facts have been pleaded to put the defendant on notice of this supposed head of damage claim.

It is, of course, of general importance for, if Mr Glenn's arguments hold sway, defendants in future fatal injuries claims risk paying, in effect, double damages to both those dependants and to the estate.

Mr Glenn cogently argued how this was so, relying on the English common law cases flowing from Roach v Yates [1937] 3 All ER 442 through Oliver v Ashman [1961] 3 All ER 323, Pickett v British Rail Engineering Ltd [1979] 1 All ER 774 (HL) to Gammell v Wilson [1981] 1 All ER 578.

In Gammell's case, the facts from the headnote were that the plaintiff's 15-year-old son was killed in a road accident. He had started work. The defendants admitted liability, and the only issue was the quantum of damages. For the purposes of the Fatal Accidents Act 1976 (similar to Part IV of the Wrongs Act dealing with survival of causes of action subsisting at the time of death for the benefit of the estate), the trial judge awarded the plaintiff damages made up of �1,750 for loss of expectation of life and �6,656 for the son's loss of future earnings during the years of life lost to him because of the defendant's negligence (the "lost years"). An appeal by the defendants to the Court of Appeal was dismissed. The defendants appealed to the House of Lords.

Because the award to the estate under the Law Reform (Miscellaneous Provisions) Act 1934 exceeded that to the dependants, no award was made in respect of the "dependants' claim" in accordance with the rule that, in assessing loss of dependency under the Fatal Accidents Act, the Court was required to take into account any benefit accruing to a dependant from the deceased's estate. (That begs the question whether there is such a rule in Papua New Guinea).

The argument in the House of Lords revolved around the meaning of the phrases "gain or loss to [the] estate" used in s 1(2)(c) of the Law Reform (Miscellaneous Provisions) Act. The cause of action for the lost years, the appellants said, was such a loss or gain and, in the terms of the section, any damages to the estate were to be calculated without reference to any loss or gain to the estate consequent on the deceased's death.

The House of Lords dismissed the appeal, holding, as summarized in the headnotes at p 579:

N2>"(1)���� On the true construction of s 1(2)(c) of the 1934 Act the restriction on an estate recovering or being deprived of a 'loss or gain to [the] estate consequent on a person's death applied only to a loss or gain directly consequent on the death and not to a loss or gain resulting from a right to recover damages which vested in the deceased immediately before his death and which then passed to the beneficiaries of his estate, whether they were his dependants or not. That construction, coupled with the principle that a cause of action for loss of earnings in the lost years vested in the deceased before he died (and in the case of instantaneous death vested in him immediately before he died) meant that the estate was not precluded by s 1(2)(c) from recovering damages for the deceased's loss of earnings during the lost years in a claim under the 1934 Act. Accordingly, even though it produced a result which was neither sensible nor just, the House was constrained to hold that the plaintiffs were entitled to the damages awarded for the lost years despite the fact that those damages far exceeded the amount to which they were entitled under the 1976 Act as dependants."

The same section as the English s 1(2)(c) is found in our Wrongs Act, Part V, which deals with survival of causes of action for the benefit of the estate. Section 34 states in part:

N2>"(3)���� Where a cause of action survives under this section for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate:

(a)����� do not include exemplary damages; and

(b)����� in the case of a breach of promise of marriage, are limited to such damages (if any) to the estate of the person as flow from the breach of the promise to marry; and

(c)����� where the death of the person has been caused by the act or omission that gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included."

The House of Lords applied the principles of Pickett's case, but in the result, the Law Lords were not happy. Lord Saran said at 595:

"My Lords, there is some disquiet expressed by judges, and understandably felt by insurers, about two aspects of the law: the 'double recovery' now possible in some cases, and the very great discrepancy which can arise, as happened in the Furness case, between the damages recoverable by the estate for the lost years and the damages recoverable by the dependants under the Fatal Accidents Act. Each of these possibilities may well be a mischief; certainly, a law which allows the discrepancy to arise wears the appearance of anomaly, and is unlikely to be understood or acceptable.

The logical, but socially unattractive, way of reforming the law would be to repeal the Fatal Accidents Act, now that the rule actio personalis moritur cum persona has itself belatedly perished. This would leave recovery to the estate; and the dependants would look, as in a family where the breadwinner is not tortiously killed, to him (or her) for their support during life and on death. They would have the final safeguard of the Inheritance (Provision for Family and Dependants) Act 1975. But the protection of the fatal accidents legislation has been with us for so long that I doubt whether its repeal would be welcomed. If, therefore, the law is anomalous (and it certainly bears hardly on insurers and ultimately the premium-paying public), the way forward would appear to be that adopted by Parliament for Scotland. The Damages (Scotland) Act 1976 appears to work well; and the Royal Commission on Civil Liability and Compensation for Personal Injury (Cmnd 7054-1, ch 12, para 437) recommends its adoption in English law. The denial of damages to the estate, but not to a living plaintiff, is the denial of a right vested in the estate; but social and financial circumstances, as well as the legal situation, of which the Fatal Accidents Act is now an integral part, suggest that, though illogical, this is the reform which is needed".

The legislature was not slow to move. The (U.K.) Administration of Justice Act 1982 s 4 abolished both causes of action for loss of expectation of life and for loss of future earning capacity. In Australia, Queensland and New South Wales abolished the cause of action. See Common Law Practice Amendment Act 1972 and Law Reform (Miscellaneous Provisions) Amendment Act 1982, respectively.

Miles J faced the problem in the National Court here in Guatal v PNG [1981] PNGLR 230. He said at 251:

"In any event if the decisions in Pickett's case [[1979] 1 All ER 774] and Gammell v Wilson [[1980] 2 All ER 557] represent the common law as it was in England on 15th September, 1975, then for the reasons I have indicated above, that part of the common law is inapplicable and inappropriate to the circumstances of Papua New Guinea because, in the words of Lord Diplock, it leads to an outcome which is neither sensible nor just and for which there is no social, moral or logical justification. If it is necessary to formulate an appropriate rule as part of the underlying law, I do so in terms of the decision in Oliver v Ashman (supra) as set out in the preceding paragraph and supplement that by stating that there is no rule which debars a dependant of a deceased person from bringing a claim under Pt. IV of the Act because the deceased pursued his own claim to judgment."

The Supreme Court in Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251 upheld a decision of the National Court awarding damages to a paraplegic as a result of a motor vehicle accident. Included in the award was an amount for future economic loss, which the Supreme Court varied by increasing on appeal. The trial judge's reported decision went more to the question of the trust's liability for costs. The judge's reasoning for finding for the plaintiff on his claim for future economic loss, and the law which he saw fit to apply, were not set out in the judgment. On appeal, the Supreme Court also made no mention of the law underlying such a claim, but Mr Glenn suggests it follows Skelton v Collins [1966] HCA 14; (1966) 115 CLR 94, an Australian High Court decision, and Pickett's case, a decision of the English House of Lords. Pickett's case was not cited as authority in Kerr's case by any of the judges on appeal. It's probably fair to say that they were not aware of that English decision when they handed their decision down on 10 August 1979, although the Law Lords gave a decision on 2 November 1978, later reported in the 1979 All ER. What is clear, however, is that an injured plaintiff's claim for future loss of earning capacity in proceedings instituted in Papua New Guinea was allowed by the National Court in 1973. On appeal on the question of quantum, the Full Court (today's Supreme Court) followed the Australian decision of Skeleton v Collins, which departed from the English principles enunciated in Oliver v Ashman [1962] 2 QB 210 and Wise v Kaye [1961] EWCA Civ 2; [1962] 1 QB 638. See Administration of PNG v Carroll [1974] PNGLR 265.

The House of Lords, in Pickett's case, followed the Australian principle in Skelton v Collins, finding that damages awarded to a plaintiff whose life expectancy was diminished were, therefore, to include damages for economic loss resulting from his diminished earning capacity for the whole period of the plaintiff's pre-accident expectancy of earning life, and not merely the period of his likely survival. His loss of future earnings were to be assessed as a separate head of damage, and not merely included as an element in the assessment of damages for loss of expectation of life.

The step which Mr Glenn suggests this Court should take was that taken by the House of Lords in Gammell v Wilson [1981] 1 All ER 578.

There the House of Lords extended the principles of Pickett's case to permit recovery of damages in respect of loss of earnings in the lost years for the benefit of the deceased's estate.

The Supreme Court of Papua New Guinea has not had cause to consider the extension of the principles of Papua New Guinea or Pickett's case, although the National Court has addressed the issues.

In Collins v MVIT [1990] PNGLR 580, Hinchliffe J, following Guatal v PNG [1981] PNGLR 230, found that the estate of a deceased person (killed in circumstances giving rise to a dependency claim, including a claim for the lost years) was not entitled to claim economic loss for those lost years. He said at 587:

"In relation to the estate claim, I am inclined to agree generally with Ms Thompson in her summary of submissions that the estate is not entitled.

Reasons

N2>(a)����� The law in Papua New Guinea is that the estate is not entitled to maintain such a claim - see McLean v Carmichael [1969-70] PNGLR 333 and Vian Guatal v PNG [1981] PNGLR 230.

N2>(b)����� Schedule 2.2 of the Constitution of Papua New Guinea provides that the common law in England as at the date of Independence shall be applied and enforced as part of the underlying law of Papua New Guinea.

N2>(c)����� The common law in England as at the date of Independence was that the estate was not entitled to maintain such a claim - see Oliver v Ashman [1961] 3 All ER 323, therefore that principle of law must be adopted in Papua New Guinea as part of the underlying law".

Miles J in Guatal's case considered the changing effect of the English decisions and analysed the most recent decisions having some bearing on the law in Papua New Guinea. He found that the law to be applied was that propounded by the House of Lords in Oliver v Ashman [1961] 3 All ER 323 and that there is no right to recover damages for economic loss during the lost years which will survive for the benefit of the estate. He was also of the opinion that, if the decisions in Pickett's case and Gammell's case represent the common law as at Independence on 15 September 1975, then for the reasons that we have already quoted, he declined to follow those latter two English decisions.

Mr Glenn further argued, however, that this Court should follow the decision of the Solomon Islands Court of Appeal in Cheung v Tanda [1984] Solomon Islands Law Reports 108. There, the Court comprising Kelly VP, Kapi and Jones JJA, approved and followed both Pickett's case and Gammell's case, relying also on the Australian cases of Skelton v Collins (which had earlier been followed in Papua New Guinea) and the more recent case of Fitch v Hyde-Cates [1982] HCA 11; (1982) 39 ALR 581, which examined and applied the House of Lords decisions, for instance, in Gammell's case.

All those Solomon Island judges, however, criticised the effect of their decisions. Kelly VP said at 114:

"I would suggest that it is desirable that consideration be given to statutory amendment to abolish both these heads of damage as has now been done in England and in some Australian States. There was criticism of the law as it then stood by several of the Law Lords in Gammell v Wilson (supra) and the legislation subsequently enacted in England implemented the recommendations of the Pearson Commission which had presented its report in 1978. That Commission had recommended the abolition of the right to damages for loss of expectation of life as anachronistic and of the right to damages for loss of earnings for the "lost years" on the ground of duplication of damages where there were Fatal Accident Act claims."

Kapi JA said at 129:

"In two Australian states, legislative action has been taken to abolish this cause of action. Queensland has amended its Act since 1972; see Common Law Practice Act Amendment Act 1972, s 3. New South Wales, in response to Fitch v Hyde-Cates [1982] HCA 11; [1982] 56 ALJR 270, amended its Act as well. See Law Reform (Miscellaneous Provisions) Amendment Act 1982, s 2. I can only suggest that Parliament in Solomon Islands gives consideration to the amendment of the Act here."

But the crucial difference between the law as found and applied in the Solomon Islands and the law which Mr Glenn wishes us to apply here is that the effect on the defendant here will be a duplication of damages payment. That is not the law in the Solomons. There, English rules that, in assessing loss of dependency, the Court was required to take into account any benefit accruing to a dependant from the deceased's estate, apply. In PNG, Mr Glenn says, relying on Frost J's decision in McLean v Carmichael [1969-70] PNGLR 333, there is no such rule, and double damages, as envisaged by Gammell's case, do apply. Frost J had occasion to consider the effect of s 13 of the Law Reform (Miscellaneous Provisions) Ordinance 1962 (s 30(d) Part IV of the Wrongs Act) on a plaintiff's claim for pecuniary loss in consequence of the death of her husband. He said at 341:

"In assessing damages under this head, the Territory Ordinance, following the English legislation, provides that there shall not be taken into account sums payable under a contract of insurance on the death of the deceased, etc. but goes further in exempting 'any benefit or gratuity in cash or in kind received as a result of the death by a person for whose benefit the action is brought': Law Reform (Miscellaneous Provisions) Ordinance 1962, s 13. In my opinion, in effect, s 13 is the same as s 7 of the Law Reform Act, 1936 of New Zealand which provided that 'in assessing damages in any action under the Principal Act there shall not be taken into account any gain whether to the estate of the deceased person or to any person for whose benefit the action is brought, that is consequent on the death of the deceased person'. The Supreme Court (Ostler J) held that the words 'any gain... to any person for whose benefit the action is brought, that is consequent on the death of the deceased person' were so wide and clear that it was impossible to hold that they could have any other than their literal meaning and must have been intended by the legislature to include any gain to the plaintiff from the deceased's estate: Alley v Buckland [1941] NZGazLawRp 56; [1941] NZLR 575. I consider that the Territory provision has the same meaning and consequently not only are the insurance moneys left by the deceased irrelevant, but also the estate actually left by the deceased and any acceleration thereof or which he might have accumulated had he lived his life out, and to which the plaintiff would have probably succeeded."

On the coming into operation of the Wrongs Act, s 30 included the words "Exclusion of payments by insurers in assessment of damages" as its subject heading. In the repealed ordinance, the words had been a marginal annotation. The wide interpretation given to the words "any benefit or gratuity in cash or kind" by Frost J, on the strength of the words "any gain" in the New Zealand legislation, may not now be a proper interpretation if the words "benefit or gratuity" are to be read ejusdem generis with the subject matter. We need not decide the point here, although, of course, Miles J also considered this aspect before deciding that, in any event, if Gammell's case represents the common law in PNG as at Independence, it was inappropriate to the circumstances of PNG.

While we do not need to make a finding on the question of whether an estate's claim for the lost years exists at this time, we consider that the question is of sufficient importance to warrant considering the ramifications as we have.

Miles J's rationale has been followed by the National Court since. This clearly has not adversely affected defendants, as the imposition of what, in effect, would be double damages would do.

LOSS OF INCOME TO TRIAL

The accountant's projection of lost income for the year ended 30 June 1988 was A$108,000, which is different again to the total reached by that simple exercise on the figures supplied by Mr Corbett. To project beyond 1987 is an exercise in imponderables.

The degree of probability of success in his entrepreneur schemes was touched on by the trial judge where he said, speaking of Mr Minifie:

"He was employed in an area that had obvious dangers. It was also an area that could suffer in an economic depression such as we are experiencing at present. These matters cannot be ignored. The figures which were presented to me were such that Mr Minifie would have a trouble-free working career, but the evidence I saw and heard in Court was such that geologists could have their good times and bad times and that shares in companies that they had acquired could go up and down depending on the times. The income and assets of a geologist, to my mind, could at all times be very unstable and unpredictable."

With those comments we agree. For the reasons that we have already given, we do not agree with the trial judge, however, where, despite his own expressed reservations, he went on and accepted the accountant's projections for the years following 1988 when such projections were based on imponderables. The correct approach, in these circumstances, would be to allow the projection of the 86/87 tax year, since it can be related to actual income, but to ignore subsequent projections. Where his entrepreneurial schemes had afforded Mr Minifie no measurable benefit, his contract work with Niugini Mining was the basis of his earnings, reflected in his tax return for the year of his death.

We propose to quash that part of the trial judge's findings where he added the projected earnings shown by the schedule 2 from the date of death to hearing. We substitute a total pre-trial loss of earnings based on the actual earning of the deceased in the tax year ended 30 June 1987 and, thereafter, allow the subsequent years at the rate of A$45,000 cash after taxation.

PAST LOSS

We propose to disregard the amount of A$30,000 shown as incentive payment. If it relates to the Niugini Mining shares on Mr Moore's evidence, then Mrs Minifie already has a benefit, and if it does not relate to those shares, it has not been justified on the evidence before the trial judge.

Dependants allowed 75%:

100%

PROPER BASIS FOR CALCULATION OF FUTURE LOSS

The trial judge's acceptance of those figures for lost earning to date of trial we find to be erroneous. The basis, then, for calculation of the future loss from the hearing is also flawed. The proper basis is to use the same established income figure for the future loss calculations, uncertain though that figure is.

APPROPRIATE DISCOUNT RATE

The figure of 3% in the discount tables was for the balance of the working life expectancy. No argument was addressed to the Court by either counsel to upset the adoption by the trial judge of this relatively low discount rate.

The appropriate discount rate is a matter of practice, and has varied considerably in earlier decisions. In the absence of argument to show that the trial judge was wrong at this time, we propose to leave that rate undisturbed. Those considerations which bear on the rate were touched on at some length by Miles J in Hassard v Bougainville Copper Ltd [1981] PNGLR 182.

In that case, he applied a rate of 5%, which he there considered appropriate. The actual yield on the money deemed to be invested in this case is 3%, which presumes a higher actual rate of interest eroded by the effects of inflation, for instance. With actual interest rates at the moment not much more than 4% per annum and a Consumer Price Index running at a higher figure, the use of the 3% discount rate would appear to be reasonable.

APPORTIONMENT BETWEEN WIDOW AND DEPENDENT CHILD

Where there is only one child of the marriage, the 10% allowance by the trial judge would, we consider, be appropriate.

FUTURE LOSS

Gross loss (before contingencies)

Adjustments to Mrs Minifie's claim for contingencies, etc.

K404,941