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Koko and Koko, Infants, (by Their Next Friend, Mava Koko) v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 167 (12 August 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 167 - Jackson Koko and Elisha Koko, Infants, by Their Next Friend, Mava Koko v MVIT�

[1988] PNGLR 167

N675

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JACKSON KOKO AND ELISHA KOKO INFANTS BY THEIR NEXT FRIEND

MAVA KOKO

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Bredmeyer J

9 August 1988

12 August 1988

DAMAGES - Fatal accidents legislation - Measure of damages - Infant plaintiffs - Death of mother - Allowable heads of damages - Loss of pecuniary benefits - Loss of mother�s extra services - Increased risk of orphanhood - Mother 23 - Children one and four years - Particular awards - Wrongs (Miscellaneous Provisions) Act (Ch No 295), Pt IV.

A wife and mother (aged 23) was killed in a motor vehicle accident caused by the negligence of her husband who was the driver. Two infant children brought a dependency claim for damages against the Motor Vehicles Insurance Trust under Pt IV of the Wrongs (Miscellaneous Provisions) Act (Ch No 295).

Held:

(1)����� Whilst in a dependency claim for the loss of a mother, infant children cannot recover damages for loss of their mother�s love and affection nor for the grief they have suffered:

(a)����� damages may be awarded for the loss of any pecuniary benefits which they might reasonably have expected to enjoy had she not been killed;

Davies v Powell Duffryn Associated Collieries Ltd (No 2) [1942] AC 601, followed.

(b)����� damages may be awarded for the loss of a mother�s extra services, such as instruction on essential matters to do with upbringing and help with homework, being services over and above those expected to be provided by a housekeeper; and

Regan v Williamson [1976] 1 WLR 305, Mehmet v Perry [1977] 2 All ER 529, and Fisher v Smithson (1978) 17 SASR 223, applied.

(c)����� damages may be awarded for increased risk of orphanhood.

Reincke v Gray [1964] 2 All ER 687; Thompson v Mandla [1976] 2 NSWLR 307 and Fisher v Smithson (1978) 17 SASR 223, considered and applied.

(2)����� In the circumstances it was appropriate to award:

(a)����� for loss of extra services: $350 per week per child till cessation of the age of dependency (16 years) but discounted for contingencies, relevantly including the presence of a defacto wife assuming a parenting role; and

(b)����� for increased risk of orphanhood: K1,000 for child aged four at date of mother�s death; K5,100 for child aged one year at date of mother�s death.

Cases Cited

The following cases are cited in the judgment:

Davies v Powell Duffryn Associated Collieries Ltd (No 2) [1942] AC 601.

Fisher v Smithson (1978) 17 SASR 223.

Glasgow Corporation v Kelly [1951] TLR 345.

Hay v Hughes [1974] EWCA Civ 9; [1975] QB 790; 2 WLR 34; [1975] 1 All ER 257.

Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251.

Mehmet v Perry [1977] 2 All ER 529.

Regan v Williamson [1976] 1 WLR 305; [1976] 2 All ER 241.

Reincke v Gray [1964] 1 WLR 832; [1964] 2 All ER 687.

Thompson v Mandla [1976] 2 NSWLR 307.

Statement of claim

These were proceedings in which the two infant children of a mother killed in a motor vehicle accident sought to recover damages on account of the death of the mother under the Wrongs (Miscellaneous Provisions) Act (Ch No 297), and for personal injuries suffered by themselves in the accident.

Counsel:

I Shepherd, for the plaintiff.

M Challenger, for the defendant.

Cur adv vult

12 August 1988

BREDMEYER J.: This is a claim on behalf of two children, Jackson (born 29 September 1979) and Elisha (born 27 October 1982) for damages for the death of their mother in a motor vehicle accident and for injuries to themselves. The accident occurred on the Magi Highway on 6 November 1983. The mother, Ester Koko, was the passenger in a car driven by her husband Ilo Koko. The accident was caused by the negligence of the husband but, by virtue of s 54 of the Motor Vehicles (Third Party Insurance) Act (Ch No 295) the infant plaintiffs are allowed, and required, to sue the defendant Trust.

The claim arising out of the mother�s death falls into two parts: the infants� dependency claim under Pt IV of the Wrongs (Miscellaneous Provisions) Act (Ch No 297) and the estate claim under Pt V of that Act. To deal with the latter first. The wife�s estate is entitled to K1,500 for loss of expectation of life the conventional sum allowed by this Court, as per Kerr v Motor Vehicles Insurance (PNG) Trust [1979] PNGLR 251. The sum of K1,500 has already been paid under the Motor Vehicles (Third Party Insurance) (Basic Protection Compensation) Act (Ch No 296) and, by s 25(1)(b) of that Act, any damages awarded have to be reduced by the basic protection paid. So the estate�s claim of K1,500 has been satisfied by the basic compensation award of the same sum.

In a dependency claim for the loss of a mother no damages are payable for the loss of their mother�s love and affection nor for the grief they suffered. Damages are awarded for the amount of pecuniary benefit which those children might reasonably have expected to enjoy had she not been killed: see 34 Halsbury�s Laws of England (4th ed), pars 94, 76, and Davies v Powell Duffryn Associated Collieries Ltd (No 2) [1942] AC 601. The measure of damages for the death of a mother is the cost of replacing her services by a housekeeper and the damages will be recovered even though those services are met by the voluntary assistance of a relative or friend: H Luntz Assessment of Damages for Personal Injury and Death (2nd ed, 1983), par 9.3.10, p 417.

In a typical case where the wife is killed by the negligence of a third party X, the husband sues X and recovers as damages the cost of a substitute housekeeper. Obviously the wife when alive provided services such as cooking, cleaning and ironing for the husband and for the children. As I have said, the husband can recover the cost of substitute services when his wife is killed and there is common law authority that this loss cannot be apportioned between the loss of the mother�s services to the children and the wife�s services to the husband, the reason being that the wife�s services to the children are said to be for the husband. The courts speak of the primary obligation of the husband to provide for his children. Where the wife is alive and does not work the husband discharges that obligation by, as it were, supplying the wife�s services for the children. When she dies, he continues to discharge that obligation to the children, by providing the services of a substitute housekeeper. In that event the children have not suffered any pecuniary loss by the death of their mother. H McGregor, McGregor on Damages (15th ed, 1988), pars 1586, 1589, pp 1007, 1009.

In this case the deceased mother did not work and Mr Shepherd, for the plaintiff, concedes these authorities and makes no claim for the cost of a substitute housekeeper to look after the plaintiff children. He concedes that only the father can claim for the loss of the mother�s services to the children, but as he is in this case the tortfeasor, the one who caused her death, he is precluded from claiming.

Although not claiming for the cost of the substitute housekeeper employed since the mother�s death, Mr Shepherd argues for damages under two related heads of claim. The first is for the loss of the extra intangible services a mother provides to her children over and above those provided by a stranger housekeeper. The second is for the loss of the chance of the mother�s support if the father through sickness or death etc should be unable to discharge his obligations to the children.

THE VALUE OF A MOTHER�S EXTRA SERVICES

The authorities for allowing damages under this head are recent and not strong, and I will review them in a moment, but according to Luntz (2nd ed, 1983) pars 9.3.11, p 418 and 9.4.06, p 425, the loss is peculiarly that of the children, not of the father, and any damages under this head should be apportioned directly to them. With that I agree.

The English authorities begin with a prophetic remark made by Lord Edmund-Davies in the Court of Appeal in Hay v Hughes [1974] EWCA Civ 9; [1975] QB 790 at 802:

�While it is undoubtedly established that damages can be awarded under the Fatal Accidents Acts only in respect of pecuniary loss and not as a solatium for injured feelings (see Taff Vale Railway Co v Jenkins [1912] UKLawRpAC 60; [1913] AC 1 at 4 per Viscount Haldane LC and Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 617) so that these two children could recover nothing for the deprivation of their mother�s love, yet it may sometime have to be considered whether Mr McGregor is not right in saying (McGregor on Damages (13th ed, 1972), par 1232):

�It may be argued that the benefit of a mother�s personal attention to a child�s upbringing, morals, education and psychology, which the services of a housekeeper, nurse or governess could never provide, has in the long run a financial value for the child, difficult as it is to assess.� �

That was a pre-Independence case. A single judge Watkins J in Regan v Williamson [1976] 1 WLR 305 acted on that remark and, in a decision given in February 1975, increased the award of damages over and above the cost of a housekeeper because of the extra services provided by a mother, such as instruction on essential matters to do with the upbringing and help with homework. This decision was followed in Mehmet v Perry [1977] 2 All ER 529, and the South Australian Full Court in Fisher v Smithson (1978) 17 SASR 223.

Luntz (2nd ed, 1983), par 9.3.11, p 418, under the heading �Guidance and training�, discusses these authorities and others which go the same way in Canada and the United States. He says in effect that they represent a new trend although on the �conventional view� of Lord Campbell�s Act (Fatal Accidents Act 1846 (UK)) the superior quality of a mother�s care, education and training is not a pecuniary loss for which damages are recoverable. Despite the slender authority of a single judge decision, I propose to follow Regan v Williamson because I believe it is a welcome trend to say that a mother�s services are, in the normal case, more valuable than that of a paid housekeeper and that the difference can be assessed although the task is hard; and because her services are more valuable than that of a housekeeper, the loss of them to the children is a loss for which they should be compensated. Of course, there are exceptions: the mother who dies could be an alcoholic and neglectful of the children; and she could be replaced by a loving, caring (and sober) grandmother. In that case the children would be better off.

Applying that principle of law to the facts of this case. The mother who died was a 23-year-old, normal, loving, caring mother. She cared for the children full time. She was replaced after death by the husband�s two sisters aged 23 and 13 for two years, and then was replaced, according to the husband, by his two brothers aged 19 and 21. I am very sceptical of the role of the latter. I thought the husband was exaggerating the child-caring, housekeeping role of these two brothers and was deliberately being vague and secretive about the role of his new defacto wife. I suspect that she is more of a substitute mother than he would admit. Mr Shepherd conceded that the cost of only one sister and one brother was justified for the substitute-mother role.

Difficult as it is to put a value on the extra services the deceased mother supplied, I agree with Mr Shepherd�s argument that K3.50 per week per child is reasonable. It is four-and-a-half years since the accident, so the past loss is 4.5 years x K3.5 pw = K819 per child. With regard to future loss, the age of dependency in Papua New Guinea is 16 years. Jackson has seven years to go at K3.50 per week, which capitalises on the 3 per cent discount tables at K1,155. Elisha has 10 years dependency left at K3.50 per week which capitalises on the same basis to K1,582. I propose to discount these figures by 25 per cent for contingencies chief of which is that I believe the new �wife� Loa Ovea will increasingly take over the mothering role of the deceased wife. Mr Ilo Koko said that she had been with him for about two years. He said they are not married and no brideprice has been paid. She lives with him, she is an office worker at Port Services, Port Moresby, whilst he is an engineer at the nearby Harbours Board. She has a daughter by him born in 1986. He said he is still assessing how well she gets on with the two plaintiff boys now aged nearly nine and six and, depending on that assessment, he might marry her. He admitted that she has taken his surname for the purposes of her employment but added that her bank accounts are in her maiden name. I disbelieve Mr Koko on Loa�s role. I consider she is his No 2 �wife�, albeit de facto, their relationship is likely to last, that two years is enough time to assess how she looks after his sons, and that she plays a leading role in the parenting of the boys, despite the fact that Mr Koko�s two single brothers, whom I have mentioned, live in the house and play some parenting role. I consider that as the years go by she is likely increasingly to mother the plaintiff boys, to provide those intangible mothering services, as if she was the real mother. I discount the future loss sums by 25 per cent to get for Jackson K866.25 and Elisha K1,186.50.

FUTURE RISK OF ORPHANHOOD ETC

In Glasgow Corporation v Kelly [1951] 1 TLR 345, the Lords agreed with Lord Norman who said (at 391) that the mother�s death left the children exposed to the additional risk of complete orphanhood if their father should die. In Reincke v Gray [1964] 2 All ER 687, the Court of Appeal upheld an award of �2,000 to one child aged nearly five and �1,750 for another child aged nearly three at the date of trial. Their father had been killed in a motor vehicle accident, and nine months after the accident, the mother remarried a man who was earning more than the father and who planned to look after the children equally well. The plaintiff widow withdrew any claim under the Fatal Accidents Act 1846 (UK). The deceased husband was earning �1,800 per year and it was agreed that the dependency of the widow and two children was �1,000 a year. It can be seen that it was right that the defendant should pay for the mother�s services in the nine months of her widowhood but that would be the children�s share of �750, and would not justify the high awards made. After her remarriage those services to them were being paid for, as it were, by the salary of the new husband and in England, by virtue of statute, the stepfather had a legal obligation to support those children. So it could be said that after the mother�s remarriage the children suffered no financial loss. Nevertheless the court said, without elaborating much, there are ups and downs of life and one cannot see too far into the future, and there is a chance of loss which has to be assessed. As I have said, the awards were upheld.

The English cases were followed in Thompson v Mandla [1976] 2 NSWLR 307 a decision of Yeldham J, especially at 318-321. He said that the children were entitled to recover damages on the basis that in the future, and until each attains 18 years, there was a chance of loss flowing from the death of their mother. They ran the risk that their father would not, or would not be able, to provide for them during their respective periods of dependency, the services previously given by their mother. This may occur because of his premature death or lack of money due to illness or unemployment. In that case the cost of a live-in housekeeper was between $100 and $120 pw and the judge awarded different amounts under this head to each of the five children, ranging from $1,000 to the oldest child, who had seven years of dependence left, to $1,800 to the youngest child who had 12 years of dependency left.

The South Australian Full Court in Fisher v Smithson (1978) 17 SASR 223 came to a similar view. The point was made briefly by Bray CJ at 238:

�Nor do I see why a child, like the child in this case, should not recover for the loss of the chance of the mother�s support in the event of the father�s death, disablement or nonperformance of his obligations. The chance may not be rated at a high figure in most cases and not in this one. Still, whereas before the accident the child could look to both parents for support, now she can only look to one. Mitchell J made an allowance for this factor in Groom�s case [1967] SASR 352 and, with respect, I think she was entitled to do so.�

In Fisher�s case the Full Court awarded $2,000 to the child under this and the previous heading � the value of the mother�s extra services � with no breakup between the two heads. The child was six months old at the date of the accident and six years at the date of the appellate decision.

I propose to follow those authorities. Mr Shepherd for the plaintiffs has urged me to make the following calculations. The cost of the substitute housekeeper has been, and is likely to be, K25 per week. K5 of that sum can be applied to services spent on the father (doing his washing and cooking) and say K10 per week on each child. Jackson has seven years of dependency left to reach 16 years, so seven years x K3.50 pw capitalised on the 3 per cent discount tables = K3,300. Elisha has 10 years dependency left at K3.50 pw which, capitalised on the same basis, comes to K4,520. Mr Shepherd says that I should then discount these sums by 50 per cent for the possibility that the father might not be able to continue to provide in the future due to his premature death, loss of job, or sickness and the like.

Mr Challenger, for the defendant, had no objection to the first stages of these calculations but asked that the discount be much higher than 50 per cent. The other cases which have awarded damages under this head which I have quoted do not refer to the 3 per cent or any other discount tables nor to a percentage reduction for contingencies, and the awards they have made have been modest. I propose to follow the more intuitive method used in those cases � to concentrate on the wood rather than the individual trees � as one of the judges has put it. The mother was killed through the negligence of the father, which liability is passed onto the defendant Trust. The father is now the sole parent. Because of the mother�s death there is a chance that they might become orphans or be left without support if the father dies, falls ill, or loses his job over the next seven or 10 years which is the dependency period for each child. The father is aged 31, in good health, and has an excellent permanent job with Harbours Board as an engineer. He is about to be promoted to the position of No 2 engineer. He loves his children. He has taken a de facto wife whom I believe will increasingly share the parenting role. I believe he has a supportive family; at least four brothers and sisters have helped him raise the children. Doing the best I can I award K1,000 to Jackson under this head and K1,500 to Elisha.

PAIN AND SUFFERING

A sum was claimed for pain and suffering caused to each child who were in the car which overturned and killed the mother. The father said each child suffered cuts and shocks. No medical treatment was given. Jackson was four years old and Elisha one year at the date of the accident. The father concedes that Elisha has no memory of it. He says Jackson has memories of it and suffers nightmares in which he sometimes calls out Mummy. I only half believe that, because I was not too impressed by Mr Koko as a witness. Children can get nightmares for other reasons and the father, who is an intelligent and caring father, has not sought medical or phychological treatment for the nightmares. For the injuries, pain and suffering I award Jackson K400 and Elisha K200.

I award Jackson damages as follows:

I award Elisha damages as follows:

I award interest on pain and suffering for each child at 8 per cent from the date of issue of the writ, and interest on past loss for each child at 4 per cent from the date of issue of the writ. I award costs on the National Court scale. The money is to be invested for the children. I grant liberty to apply.

Judgments accordingly

Lawyer for the plaintiff: Joseph K Pakau & Associates.

Lawyer for the defendant: Young & Williams.