Leonard Laki v Tzen Niugini 2007
Compensation claim arising from a workplace death
Logging companies mentioned in this document:
N11085
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 775 OF 2007
BETWEEN
LEONARD LAKI BY HIS NEXT OF KIN LEONARD LAKI SENIOR
- Plaintiff -
AND
TZEN NIUGINI LIMITED
- First Defendant–
CACARA ALAM (PNG) LTD
- Second Defendant–
ARIA VANU TIMBER COMPANY
- Third Defendant–
ROBIN WILLIE
- Fourth Defendant–
MARK MUTANGE
- Fifth Defendant–
Kimbe: Collier J
2024: 08th November
DAMAGES – death of adult child – father claimed damages for loss of income,
cultural benefit, funeral and post-burial expenses – solatium
PRACTICE AND PROCEDURE – lawyer for defendant failed to appear at
hearing – judgment reserved – lawyer subsequently filed affidavit asking Court to
have regard to submissions annexed to affidavit – no notice of motion filed
seeking case be reopened for filing of further submissions – public policy of
finality of litigation – no exceptional circumstances – writ of summons filed 2007
– desirability of matter being determined – interests of justice.
Facts
The adult child of the plaintiff was killed in a car accident at work in 2007. Default
judgment was obtained against the defendants in 2013. The plaintiff claimed
dependence on the deceased child’s income. The plaintiff claimed damages for lost cultural benefit, funeral and post-burial expenses and solatium. The lawyer for the second defendant failed to appear at the hearing, but the following day requested that his written submissions be taken into consideration. Held: Once judgment reserved only exceptional circumstances warrant reopening the case for the filing of further submissions. The explanation given by the lawyer for the second defendant was inadequate. The Court refused to have regard to the submissions annexed to the lawyer’s affidavit. The Court awarded damages to the plaintiff for loss of income, funeral expenses and post burial expenses, and solatium. Cases Cited: Geosite Management Ltd v Kavo [2020] N8439 Lumali v National Sports Trust Ltd [2022] N9760 Paul Komba v Nauli Duwaba, The Headmaster, Tabubil High School and John Wakon, Commissioner of Police and The Independent State of Papua New Guinea [2006] N2979 Paul Por Onga as father and customary representative of Elizah Por Onga and Sabina Mannie Por as mother of Elizah Por Onga (deceased) v Independent State of Papua New Guinea [2019] N8109 Pea Paul as next Friend to Paul Luyo in his capacity as the Employee of Sany Limited v Doni Li in his capacity as General Manager of Sany Limited and Others [2024] N10719 Puk Kum v The State, WS No 44 of 1996 Wallbank v The State [1994] PNGLR 78 Legislation: Judicial Proceedings (Interests on Debts and Damages) Act 2015 ss 4 and 6 Wrongs (Miscellaneous Provisions) Act 1975 Pt IV Counsel: Mr Loloma, for the Plaintiff No appearance, for the Defendants 8th November 2024 COLLIER J: On 12 July 2007 the plaintiff, Mr Leonard Laki (Senior) (the plaintiff), filed a Writ of Summons in which he sought K936,000.00 in damages under various heads of damage for the negligent death of Mr Laki’s son, Mr Leonard Laki (Junior) (the deceased). On 11 October 2013, Batari J gave default judgment to the plaintiff, and ordered that
damages be assessed. This judgment follows the hearing on the assessment of
damages.
BACKGROUND
A summary of the factual background of the events surrounding the death of Mr
Laki Jnr is as follows:
• On 7 January 2007, 20 year old Leonard Laki (Jnr) was killed in a car accident
while on duty at work. The deceased’s employer was the first defendant. The
second defendant was a company which owned and controlled the first
defendant. The accident occurred on property of the third defendant.
• Two vehicles, both owned by the first defendant, collided head on. The fourth
and fifth defendants (also employees of the first defendant) were the drivers of
the two vehicles.
• The fourth and fifth respondents were driving fast on a muddy and slippery
road.
• The deceased’s salary at the time of his death was approximately K260.00 per
fortnight.
• The funeral and associated costs were in the approximate amount of
K11,000.00.
• The plaintiff was paid K32,000.00 as compensation by the second defendant
in respect of the deceased’s death. That figure comprised K25,000.00 by way
of worker’s compensation and K7,000.00 as Bel Kol money. The amount of
K7,000.00 was paid on 10 January 2007 and encompassed K2,000.00 for
Provincial Government Death Compensation Policy and K5,000.00 to assist
with funeral expenses.
The matter has been on foot for over 17 years. A brief procedural history of the
proceedings is as follows:
• On 12 July 2007, the plaintiff filed a Writ of Summons seeking K936,000.00
in damages. The relief sought was itemised as follows:
• K80,000.00 – pain and suffering
• K525,000.00 – loss of earnings
• K120,000.00 – loss of future prospects
• K100,000.00 – loss of customary benefits
• K100,000.00 – MVIT
• K5,000.00 – Funeral expenses
• K7,000.00 – Post burial expenses and customs
• On 31 July 2013 the plaintiff filed a Notice of Motion seeking “The Judgment
entered against Defendants 1, 2, 3, 4 and 5 for failing to file their defence and
Notice of intentions to defend on time.” (Notice of Motion for default
judgment)
• On 13 September 2013, the second defendant filed a Notice of Appearance,
Notice of Intention to Defend, and Notice of Motion and affidavit in support
seeking leave to file the defence out of time and for the Notice of Motion for
default judgment to be struck out.
• On 11 October 2013 Batari J ordered ex parte that:
1. Default Judgment is ordered.
2. Damages is to be Assessed.
• On 1 November 2013 the second defendants filed a Notice of Motion seeking
orders that the default judgment be set aside and for the defendants to file a
defence out of time (the set aside Notice of Motion).
• On 2 September 2014, the plaintiff filed submissions in relation to the
assessment of damages.
• On 2 November 2016, Batari J dismissed the set aside Notice of Motion for
want of prosecution.
• On 2 September 2019, Assistant Registrar Aheng ordered that:
• The plaintiff file and serve affidavits to be relied on at trial and pleading
book by 16 September 2019.
• Matter returned to Court for listing on 23 September 2019.
• For reasons which are not clear to me, the matter was then continually
adjourned for an extended period of time.
• On 4 September 2024, Wood J ordered that:
• The hearing on assessment of damages be listed on 5 November 2024;
• The matter be listed for pre-trial conference on 8 October 2024; and
• The parties file submissions by 25 October 2024, failing which the
defaulting party shall be precluded from relying on written submissions
at the hearing unless the Court grants leave.
• On 9 September 2024, Mr Collin Asafia (general manager of second
defendant) was served with the Court Order of 9 September 2024 and
(according to the affidavit of Mr Asafia filed in these proceedings on 7
October 2024) allegedly first became aware of these proceedings.
• On 8 October 2024, Wood J ordered that:
• The proceeding be listed for assessment of damages on 5 November
2024;
• The Order regarding the filing of written submissions remains in force;
and
• Court noted non-appearance of plaintiff on that date.
At the hearing, there was no appearance by the defendants. Mr Loloma of the Office
of the Public Solicitor appeared for the plaintiff. At the time I asked Mr Loloma if he
was aware of whether Mr Felix Kua, the lawyer for second defendant, would be
attending Court. Mr Loloma indicated that he was unsure. I noted that Mr Kua had
entered an appearance on 10 September 2024 and had appeared before Wood J on 8
October 2024 when Wood J had ordered that the proceeding be listed for assessment
of damages on 5 November 2024. Accordingly, I was satisfied that the second
defendant, which appeared to be the primary active defendant in the proceedings,
had been advised through its lawyer of the hearing of 5 November 2024.
In the circumstances I considered it appropriate to proceed with the hearing in the
absence of the defendant.
I note that, the day after judgment was reserved at the conclusion of the hearing on 5
November 2024, an affidavit was filed (on 6 November 2024) by Mr Kua who
relevantly deposed:
1. This matter was listed for trial on assessment of damages on the
05th November 2024 at 1:30pm.
2. However, at 1:30pm I was not available for trial and the
Plaintiff’s lawyer proceeded on with the trial.
3. The reason of my non-appearance was because of my oversight
and confusion of the trial dates on one of my two other matters
one listed for trial on assessment of damage on the 06th
November 2023 at 9:30am, styled as WS No 196 of 2024, Yame
Yame Limited vs. Dorothy Prul & Ors including attending to
drafting submission on the other matter styles as OS No 342 of
2023 Jita Guken vs. Tony Guken & Ors which I was heavily
concentrating or working and focusing on the file in the
afternoon part of the day.
4. I was only reminded of the trial when I received a call from the
National Court registry at 2:49pm which by then I saw that it
was already late for me to come to Court and because the matter
was listed for 1.30pm an hour and 49 minutes ago.
5. I immediately called the Plaintiff’s lawyer but could not get
through as my calls were not answered.
6. I however, kept on calling and the Plaintiff’s lawyer answered
and informed me that trial was conducted and decision was
reserved to Friday 08th November 2024.
7. It was an honest oversight on my part on the trial date and time
and was not intentional.
8. Since the decision is pending we humbly seek indulgence from
this Honourable Court to consider the right and interest of our
client and humbly submit that it except [sic] our client’s
submission in order to assist this Honourable Court in its
determination of matter fairly.
9. Given time limitation we could not file a formal application thus
humbly submit that the Court invoke its powers under Section
155 (4) of the Constitution and accept our client’s submission at
this juncture thus my affidavit.
...
I note the explanation of Mr Kua for the second defendant for his absence from the
hearing. However, I am not inclined to permit the second defendant to rely on the
submissions Mr Kua annexed to his affidavit of 6 November 2024 in the following
circumstances.
First, it is not in dispute that the parties, and their lawyers (including Mr Kua), were
aware of the hearing date. I also note that on 4 September 2024 Wood J ordered:
4. The parties shall file their submissions on the issue of the
Assessment of Damages by the 25 October 2024, failing which a
defaulting party shall be precluded from relying on written
submissions at the hearing, except by permission of the Court.
Further, on 8 October 2024 – when Mr Kua was present in Court – Wood J ordered:
2. The Order in paragraph 4 of the Orders made on 4 September
2024 remains in force.
It follows that Mr Kua should have been aware of the necessity of his client to file
written submissions referable to the assessment of damages by no later than 25
October 2024. Plainly, no written submissions were filed by Mr Kua by that day.
While I was prepared ultimately to accept written submissions from the plaintiff, this
was in circumstances where the plaintiff and his lawyer appeared at the hearing,
unlike Mr Kua and his client.
Second, judgment has been reserved in this case. It is a very serious matter for a case
to be reopened once judgment has been reserved. It is entirely unclear to me, in the
absence of a Notice of Motion filed by the second defendant and served on the
plaintiff, whether the plaintiff is aware of Mr Kua’s affidavit, or the submissions
annexed to it. The prospect of the Court entertaining the submissions of the second
defendant at this stage subjects the plaintiff to the prejudices of:
• being required to return to Court for his view of the proposed
submissions of the second defendant after the matter has been
reserved for judgment, and potentially incurring the further
expense at this point of replying to those submissions,
• the judgment being further delayed while the Court gave
consideration to further argument, and/or
• at worst – the Court accepting Mr Kua’s submissions without
giving the plaintiff the opportunity to be heard, which is an
entirely unacceptable option.
In any event, I am satisfied that the request of the second defendant’s lawyer for his
submissions to be heard at this point seriously offends the public policy requiring
finality in litigation. Leave to advance further submissions once judgment has been
reserved should not be granted except in exceptional circumstances. As Kandakasi
DCJ observed in Geosite Management Ltd v Kavo [2020] N8439:
54. There has to be finality in litigation, which is an important public
policy consideration. It is this concept of finality in litigation that
forms one of the pillars for trust and confidence in our judicial
process and system. It gives confidence to the parties, to
businesses and generally confidence in a country’s economy
which is necessary for needed foreign investments....
The importance of this public policy in the circumstances of the case before me is
enhanced when viewed against the age of this matter – being originally filed in 2007
– and the poor excuse given by Mr Kua for his failure to attend the hearing on 5
November 2024.
Finally, Mr Kua appeals to the Court in the interests of justice for his client. Justice
must also be given to the plaintiff. Justice would not be served in this case by my
acceptance of the submissions of Mr Kua annexed to his affidavit filed 6 November
2024. I am not persuaded that there are exceptional circumstances warranting the
Court’s acceptance of the very late written submissions of Mr Kua.
I will now turn to the submissions of the plaintiff in this case as to damages.
Submissions OF THE PLAINTIFF
The plaintiff relied on written submissions which I permitted his lawyer, Mr Loloma,
to hand up at the hearing. Those were, in summary, as follows:
• The deceased was an employee of the first defendant.
• The negligent driving on a wet and slippery road of the fourth and fifth
defendants caused the death of the deceased.
• At all material times, the fourth and fifth defendants were employees of the
first and second defendants.
• If the deceased had not died due to the negligence of the defendants, he would
have lived a further 50 years pursuant to the life expectancy in Papua New
Guinea.
• The deceased was earning K260.00 per fortnight in his employment as a
mechanic. As such the plaintiff should be awarded K338,000.00 for loss of
income.
• The plaintiff has suffered emotionally, physically and psychologically due to
the death of his son and the prosecution of this case for the last 17 years. The
plaintiff should be awarded K80,000.00 for pain and suffering.
• The K25,000.00 paid to the plaintiff under worker’s compensation was
insufficient to compensate the plaintiff for the loss suffered.
• The first defendant has paid no money to the plaintiff since the filing of this
matter in 2007.
• As the deceased’s life was completely taken by the negligence of the
defendants, the circumstances of the case should attract a higher award of
damages when compared to matters where the plaintiffs suffered severe
injuries or were rendered quadriplegic.
• The plaintiff should be awarded K11,000.00 for funeral expenses.
• The damages should be awarded with interest charged at 8% pursuant to the
Judicial Proceedings (Interests on Debts and Damages) Act 2015 from the
time of filing of the Writ of Summons.
• The claim for MVIT was not pressed.
Evidence
The plaintiff relied on the affidavit on assessment of damages of Mr Leonard Laki
(Snr) filed 30 October 2024 as well as oral evidence of the plaintiff given at the
hearing. I have also considered the affidavit of Mr Leonard Laki (Snr) filed on 14
November 2016. That evidence was, in summary, as follows:
• Leonard Laki Jnr (the deceased) was killed during his employment as a
mechanic with the first defendant on 7 January 2007 when the car driven by
the fourth defendant, in which he was a passenger, collided with a truck driven
by the fifth defendant.
• The deceased suffered injuries including a punctured lung, internal bleeding, a
ruptured spleen and a ruptured liver. These injuries caused his death.
• The fourth and fifth defendants were driving quickly down a wet and muddy
road at the time of the collision.
• The deceased was 20 years old when he died.
• During his employment, the deceased was paid K260.00 fortnightly with an
estimated annual salary of K6,760.00.
• The plaintiff suffered emotional, physical and psychological harm due to the
loss of his son and the continuation of the Court proceedings.
• The plaintiff was paid K32,000.00 as compensation for the deceased’s death,
which consisted of K25,000.00 of workers compensation and K7,000.00 paid
by the second defendant as Bel Kol money.
• K5,000.00 of the Bel Kol money was to assist with funeral expenses. There
were multiple expenses involved in the funeral and pre-burial and post-burial
ceremonies including travel costs, coffin purchase, customary payments, food
costs, land payments for burial, grave maintenance workers and other
customary rights. These costs far exceeded the K5,000.00 paid by the second
defendant.
• The deceased’s death cost the plaintiff K11,000.00 out of pocket for funeral
expenses.
• Prior to his death, the deceased provided monthly payments between K200.00
and K300.00 to his parents and siblings to assist in financially supporting
them.
• The deceased completed Grade 10 at Kimbe secondary school and was
working as a mechanic to save money to complete further education to
become a diesel mechanic.
• The plaintiff has four living children remaining, two of whom live in the
plaintiff’s village.
• One of the four living children currently provides K300.00 fortnightly in
financial assistance to the family from his job as an assistant manager at a
hardware store in Kimbe. He also supports his wife and children.
• The plaintiff is unemployed and has been unable to find employment.
• One of the plaintiff’s daughter is married and lives in Rabaul with her
husband and is financially supported by her husband.
• The plaintiff is a leader of his clan and is the ILG chairman for his clan. He
receives payments for this role. This role would have been passed down to the
deceased but for his death. The role customarily is passed down to the first-
born son, and now that the plaintiff does not have a living first-born son, the
role cannot be passed down in his immediate family.
• The deceased would have taken over the role at age 27 or 28, or if he had been
married earlier and had a son.
Although the defendants did not appear at the hearing before me, I note the affidavit
of Mr Asafia filed on 7 October 2024 in which Mr Asafia deposed, in summary:
• He was the general manager of the second defendant.
• He was not aware of the court proceeding until he was served with the court
order of 9 September 2024 at his office in Kimbe.
• The deceased was an employee of the first defendant.
• The writ of summons did not disclose any facts that the deceased was
employed by the second defendant or that the accident in which the deceased
died was related to the business of the second defendant.
• The plaintiff did not plead that the second defendant owed a duty of care to
the deceased.
• The second defendant was never served any court documents especially the
Writ of Summons.
• The default judgment was entered in a vacuum.
• The plaintiff’s pleading did not disclose facts and a cause of action in law
against the second defendant.
Legal principles
Part IV of the Wrongs (Miscellaneous Provisions) Act 1975 reads as follows:
PART IV. – WRONGFUL ACT OR NEGLECT CAUSING DEATH.
24.INTERPRETATION OF PART IV.
(1) In this Part, unless the contrary intention appears–
“child” includes son, daughter, grandson, granddaughter, stepson and
stepdaughter;
“parent” includes father, mother, grandfather, grandmother, stepfather
and stepmother. (2) For the purposes of this Part, a person shall be deemed to be the parent or child of a deceased person notwithstanding that he was related to him illegitimately or in consequence of adoption, whether under a law of Papua New Guinea or under a law of a place outside Papua New Guinea, and, in deducing a relationship that under the provisions of this Part is included within the meaning of the expression “parent” or “child”, an illegitimate person and an adopted person shall be treated as being or as having been the legitimate offspring of his mother and reputed father or of his adopters, as the case may be. (3) In deducing a relationship for the purposes of this Part, a relationship by affinity shall be treated as a relationship by consanguinity and a relationship of the half-blood as a relationship of the whole blood. 25.LIABILITY FOR DEATH CAUSED WRONGFULLY, ETC. Where the death of a person is caused by a wrongful act, neglect or default and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued is liable to an action for damages notwithstanding the death of the person injured and notwithstanding that the death has been caused under such circumstances as amount in law to an offence. 26.ACTIONS UNDER SECTION 25. (1) An action referred to in Section 25 shall be for the benefit of the wife, husband, parent and child of the deceased person, and a person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased person, and shall be brought by and in the name of the executor or administrator of the person deceased. (2) In the case of the death of a native within the meaning of the Interpretation Act 1975, an action referred to in Subsection (1) may be for the benefit of the persons who by custom were dependent on the deceased immediately before his death, in addition to the persons specified in that subsection. 27.ACTIONS FOR DAMAGES BY PERSONS INTERESTED. (1) Where in any case to which this Part applies there is no executor or administrator of the person deceased, or where no action referred to in this Part has, within six months after the death of the deceased person, been brought by his executor or administrator, the action may be brought by all or any of the persons for whose benefit the action would
have been if it had been brought by the executor or administrator. (2) An action brought under Subsection (1) shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly as may be as if it were brought by the executor or administrator. 28.AMOUNT OF DAMAGES. (1) In an action referred to in Section 25, the court may award such damages as it thinks proportioned to the injury resulting from the death to the respective parties for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst those parties in such shares as the court directs. (2) In an action referred to in Section 25, damages may be awarded in respect of medical expenses incurred as a result of the injury causing the death, together with reasonable expenses of the funeral or cremation of the deceased person (including the cost of erecting a headstone or tombstone over the grave of the deceased person), if those expenses have been incurred by one or more of the parties for whose benefit the action is brought. 29.SOLATIUM TO PARENTS OF CHILD WRONGFULLY KILLED. (1) In this section, “parent” means– (a) where the child has been adopted, the adopted father or mother of the child; and (b) where the child has not been adopted, the father or mother of a legitimate child and the mother of an illegitimate child. (2) In an action referred to in Section 25 in relation to the death of a child after 25 July 1968 (being the date of commencement of the pre- Independence Law Reform (Miscellaneous Provisions) Act 1967) the court may award such damages, not exceeding K600.00 in the aggregate, as the court thinks just, by way of solatium for the suffering caused to a parent by the death of the child. (3) When both parents bring an action to recover the sum of money payable under this section, the amount recovered, after deducting the costs not recovered from the defendant, shall be divided between the parents in such shares as the court directs. (4) Where both parents survive the child and one of them does not join in bringing an action under this section, the other may bring an action for such amount as he claims to be due to him.
(5) In an action brought to enforce a right conferred by this section the
court may, in its discretion, refuse to order the payment of any sum by
way of solatium if, having regard to the conduct of the plaintiff in
relation to the deceased person, or to the relations that existed between
the plaintiff and the deceased person, or for any other sufficient reason,
it thinks that no such payment should be made.
(6) The rights conferred by this section are in addition to, and not in
derogation of, any rights conferred on a parent by any other provision
of this Act.
(7) The cause of action conferred on a person by this section does not,
on his death, survive for the benefit of his estate.
30.EXCLUSION OF PAYMENTS BY INSURERS IN ASSESSMENT
OF DAMAGES.
In assessing damages in an action under this Part there shall not be
taken into account–
(a) any sum (including a return of premiums) paid or payable, on the
death of the deceased person, under a contract of assurance or
insurance, whenever made; or
(b) any sum paid or payable by way of social service benefit under an
Act; or
(c) any sum (including a return of contributions) paid or payable out of
a superannuation, provident or like fund, or by way of benefit from a
friendly society, benefit society or trade union; or
(d) 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.
31.LIMITATION OF ACTIONS UNDER PART IV.
Only one action under this Part lies for and in respect of the same
subject-matter of complaint, and every such action must be commenced
within three years after the death of the deceased person.
32.PARTICULARS OF DEMAND.
In an action under this Part, the plaintiff on the record must deliver,
together with the statement of claim, to the defendant or his lawyer full
particulars of the person for whom and on whose behalf the action is
brought, and of the nature of the claim in respect of which damages are
sought to be recovered.
The Court has recently summarised the principles in relation to assessment of
damages in Pea Paul as next Friend to Paul Luyo in his capacity as the Employee of
Sany Limited v Doni Li in his capacity as General Manager of Sany Limited and
Others (2024) N10719 per Dowa J:
c) Is the Plaintiff entitled to any damages and if so, what is the
reasonable damages?
43. The law on assessment of damages is settled: In Samot v Yame
(2020) N8256, His Honour, David J referring to legal principles
to be applied in assessing damages said this at paragraph 46 of
his judgment:
“The Supreme Court in William Mel v Coleman Pakalia (2005)
SC790 and the National Court decision of Cannings, J in Steven
Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a
number of legal principles that are applicable in assessing
damages where liability is established either following a trial or
after the entry of default judgment and these are:
The plaintiff has the onus of proving his loss on the
balance of probabilities. It is not sufficient to make
assertions in a statement of claim and then expect the
court to award what is claimed. The burden of proving a
fact is upon the party alleging it, not the party who denies
it. If an allegation forms an essential part of a person’s
case, that person has the onus of proving the allegation.
(Yooken Paklin v The State (2001) N2212, National Court,
Jalina J.)
Corroboration of a claim is usually required and the
corroboration must come from an independent source.
(Albert Baine v The State (1995) N1335, National Court,
Woods J; Kopung Brothers Business Group v Sakawar
Kasieng [1997] PNGLR 331, National Court, Lenalia J.)
The principles of proof and corroboration apply even when
the defendant fails to present any evidence disputing the
claim. (Peter Wanis v Fred Sikiot and The State (1995)
N1350, National Court, Woods J.)
The same principles apply after default judgment is
entered and the trial is on assessment of damages – even
when the trial is conducted ex parte. A person who obtains
a default judgment is not entitled as of right to receive any
damages. Injury or damage suffered must still be proved
by credible evidence. (Yange Lagan and Others v The State
(1995) N1369, National Court, Injia J.)
If the evidence and pleadings are confusing, contradictory
and inherently suspicious, the plaintiff will not discharge
the onus of proving his losses on the balance of
probabilities. It is conceivable that such a plaintiff will be
awarded nothing. (Obed Lalip and Others v Fred Sikiot
and The State (1996) N1457, National Court, Injia J.)
Where default judgment is granted, for damages to be
assessed on a given set of facts as pleaded in a statement
of claim, the evidence must support the facts pleaded. No
evidence will be allowed in support of facts that are not
pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme
Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT
[1992] PNGLR 254, National Court, Woods J; MVIT v
Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ,
Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v
The State and Others [1998] PNGLR 247, National Court,
Injia J.)
The fact that damages cannot be assessed with certainty
does not relieve the wrongdoer of the necessity of paying
damages. Where precise evidence is available the court
expects to have it. However, where it is not, the Court must
do the best it can. (Jonathan Mangope Paraia v The State
(1995) N1343, National Court, Injia J.)
The court must be alert to vague claims, unsupported by
corroborating evidence, as they might be false claims. The
court must only uphold genuine claims. (Kolaip Palapi
and Others v Sergeant Poko and Others (2001) N2274,
National Court, Jalina J.)
The person who has been wronged has a duty to mitigate
their losses; though it is the defendant who has the onus of
proving failure to mitigate (Dia Kopio v Employment
Authority of Enga and Others (1999) N1865, National
Court, Hinchliffe J; Coecon v National Fisheries Authority
(2002) N2182, National Court, Kandakasi J.)”
Consideration
Before turning to the heads of damage claimed in this case, it is appropriate for me
to make a number of remarks on the evidence of Mr Asafia as the General Manager
of the second defendant.
First, to the extent that Mr Asafia asserts that he was unaware of the proceedings
until September 2024, and therefore the second defendant was unaware of the
proceedings, I reject that assertion. A Notice of Appearance was filed in this
proceeding on 13 August 2013 entering an appearance on behalf of the second
defendant. Plainly, then responsible officers in the second defendant knew of this
litigation. Indeed, as a perusal of the Court file clearly shows, an affidavit of Ling
Koh Woo sworn on 28 August 2013 was filed in the proceedings in which Mr Woo
deposed to being the Managing Director of the second defendant. Both the Notice of
Appearance, and Mr Woo’s affidavit, were filed before the default judgment was
entered against the defendants on 11 October 2013. The contention that the default
judgment was entered “in a vacuum” is manifestly incorrect.
It is clear on the Notice of Motion on which the default judgment was entered, that
default judgment was sought against the first, second, third, fourth and fifth
defendants. Any opportunities for the defendants to challenge their liability to the
plaintiff have long since passed.
Dependency Claim
The Court understands that the plaintiff’s claim for “loss of future earnings”, “loss of
future prospects” and “loss of customary benefit” all fall under the dependency
claim brought by the plaintiff.
In Paul Por Onga as father and customary representative of Elizah Por Onga and
Sabina Mannie Por as mother of Elizah Por Onga (deceased) v Independent State of
Papua New Guinea (2019) N8109, Polume-Kiele J outlined the principles in relation
to the heads of damages arising out of wrongful death of a child:
20. The law on what are the recognised heads of damages for claims
arising out of wrongfully cause death of a child is well settled.
The established position at common law adopted and applied in
Papua New Guinea are cited in the case of Jackson Koko and
Elisha Koko v. MVIT,[1988] PNGLR 167; Richard Dennis
Wallbank and Jeanette Minifie v The State [1994] PNGLR 78,
Andale More and Manis Andale v. Henry Tokam and The State
(1997) N1645. According to these recognized principles of law,
the only recognised heads of damages arising out of a wrongful
death of a child are estate claims and solatium. This is so for
very good reason. Because, more often children are dependent on
their parents until attaining age of maturity or upon reaching
adulthood when they are free to move on with their own life and
have a family of their own. They then have their children upon
whom these children become dependent. It is common throughout
Papua New Guinea that most parents die earlier than their
children. Whilst we may say that parents do not depend on their
children for their maintenance and upkeep, I am of the view that
given our current circumstances in rural PNG that most parents
depend on their children to support them for their maintenance of
their homes, gardens and other manual work, including
gardening, fishing and hunting for their livelihood including
making sales at the informal market place and by the sides of
their homes to generate some income to support their livelihood.
Whilst it may be highly speculative to suggest that parents would
live longer and become dependent on their children, it is not
unusual as parents to be dependent on their children up to a
point and from time to time.
21. Given these factors, not all claims for any loss of an existing
dependency or any prospective dependency are the same. Thus, a
claim must be considered on its own merits and circumstances
based on the plaintiff’s pleadings supported by credible evidence
establishing such a claim under Order 8 Rules 20A as well as the
specific factual basis upon which there was dependency, or a
prospective dependency claim is based. Such specifics should
include the deceased’s:
(a) medical history and status prior to his or her
demise;
(b) academic and or intellectual capacity by reference
to school or college work and or assessments and
results;
(c) employment or industriousness record and evidence
of it;
and
(d) living environment, whether rural or city with type
of accommodation, food, other factors that
contribute to better health and longer life
expectancy and opportunities or lack therefore of
being employed with a certainty of earning or
generating a regular
... It is not sufficient just to make a claim for dependency when there is
no pleadings providing particulars of such claim for dependency...
I will now consider the plaintiff’s dependency claims referable to loss of income and
customary benefit.
Loss of Income
The plaintiff on the face of his submissions and evidence relied upon did not press
the original sum claimed of K525,000.00 for loss of earning or K120,000.00 for loss
of future prospects. Instead the plaintiff, in his affidavit on assessment of damages
filed 30 October 2024, and in his written submissions, sought the amount of
K338,000.00 for loss of income.
The factual basis of the deceased’s earning capacity is clearly established. The
uncontested evidence before the Court is that the deceased completed Grade 10 at
Kimbe Secondary School and was working as a mechanic while saving money to
obtain further qualifications to become a diesel mechanic at the time of his death.
In the current case it is helpful to refer to the case of Puk Kum v The State, WS No 44
of 1996 as summarised by Cannings J in Paul Komba v Nauli Duwaba, The
Headmaster, Tabubil High School and John Wakon, Commissioner of Police and The
Independent State of Papua New Guinea (2006) N2979:
53. In Puk Kum v The State, WS No 44 of 1996, 12.09.03,
unreported, the deceased was a 25-year-old man, killed by police
in a raid of Papen village, Western Highlands Province. The
plaintiff, his father, brought an action on behalf of his wife and
children claiming damages for the loss of dependency support
due to the unlawful death of his son. The deceased was a
mechanic who assisted his family financially as well as doing
manual labour required of a son in a village environment. Salika
J held that the State was vicariously liable for the unlawful
conduct of the police officers involved, even though the
individual officers were not named as defendants. His Honour
considered that the plaintiff’s wife (ie the deceased’s mother) had
a life expectancy of 55 years. Having regard to her age, she was
awarded damages of K20.00 per week for 15 years.
Although the deceased in that case was older than Mr Laki Jnr, it is clear that
employment of the deceased as a mechanic prior to his death is sufficient evidence
of certainty of regular income to support a dependency claim.
In the current case the plaintiff has sought damages for loss of the deceased’s income
in the amount of K338,000.00 on the basis of the deceased’s wages being K260.00
per fortnight for 50 years of work. This claim is misconceived. As noted by Dowa J
in Pea Paul at [49], a dependency claim for loss of income should not be pleaded as
if the deceased was pursuing the claim for himself. The figure should instead be
calculated based on the contribution to the family denied by the deceased’s untimely
death.
The plaintiff’s submissions filed 2 September 2014 identified the members of the
deceased’s family as follows:
Name of Dependant Relationship to Age at Death
Deceased
MR. LEO LAKI Father 44 Years
MRS. LEO LAKI Mother 42 Years
ABEL LAKI Brother 11 Years
LOUISE LAKI Brother 06 Years
LEONNIE LAKI Sister 19 Years
JENIFFER LAKI Sister 14 Years
The evidence before the Court is that the deceased contributed a monthly sum of
between K200.00 and K300.00 to his family, and that in this respect the family was
dependent on the deceased for that income. The evidence of the plaintiff at the
hearing was that he was unemployed, that two of his children remained dependent
on family income (being Louise and Jeniffer), that one child lived with and was
supported by her husband in Rabaul (Leonnie), and one child contributed financial
assistance to the family as well as supporting his wife and children from his job as
an assistant manager at a hardware store (Abel).
In the absence of evidence to the contrary, I accept that the plaintiff and his family
were dependent on the income contributed by the deceased to the family unit at the
village.
In the absence of evidence as to a medical need or otherwise for Louise and Jeniffer
to be dependent on the family income in perpetuity, it is appropriate to calculate the
dependency claim on the basis of a lump sum paid to the family for the duration of
the younger parent’s life expectancy. I make this finding on the basis that it could be
expected that the deceased would have continued to support his parents into their old
age, as he was apparently doing at the time of his death.
It follows that it is appropriate that the plaintiff be awarded K300.00 per month,
being the amount contributed to the family by the deceased, until Mrs Leo Laki
reaches age of 70. The relevant calculations are as follows:
70 years of life expectancy – 42 years age at death = 28 years of loss
of income.
28 years x 12 months = 336 months
336 months x K300.00 = K100,800.00
The appropriate award of damages for loss of income is K100,800.00.
Loss of Customary Benefits
The plaintiff claimed K100,000.00 in damages for loss of customary benefits. The
plaintiff gave oral evidence in Court that he is a senior clan member and Chairman
of the ILG, and that he receives money in the form of logging royalties for this role.
The plaintiff gave evidence that that role is customarily passed down from the father
to the first-born son. The plaintiff’s evidence was that as he no longer had a living
first-born son, the role cannot be passed down in his family.
For this loss of income and opportunity the plaintiff claimed K100,000.00 in
damages.
The only evidence before the Court in relation to this head of damages was the oral
evidence of the plaintiff given at the trial. No supportive evidence was tendered to
substantiate this claim.
In the circumstances, where the evidence is vague, has no documentary support, is
not pleaded with particularity, and in any event the plaintiff asserted that he himself
is currently receiving this customary benefit, I cannot be satisfied that this head of
damages is substantiated.
Funeral Expenses and Post-Burial Expenses
Pursuant to s 28(2) of the Wrongs (Miscellaneous Provisions) Act 1975, damages for
funeral expenses are recoverable as follows:
28. AMOUNT OF DAMAGES.
...
(2) In an action referred to in Section 25, damages may be awarded
in respect of medical expenses incurred as a result of the injury
causing the death, together with reasonable expenses of the
funeral or cremation of the deceased person (including the cost
of erecting a headstone or tombstone over the grave of the
deceased person), if those expenses have been incurred by one
or more of the parties for whose benefit the action is brought.
(emphasis added)
In Pea Paul, Dowa J found in relation to funeral expenses as follows:
52. The Plaintiff claims the sum of K 38, 520.00. for special
damages. The Plaintiff submits that it cost them K 40, 000.00 for
funeral expenses, including repatriation of the body to Tumbilian
village, Wabag. He submits that the Defendants assisted in the
expenses calculated to be in the sum of K 1,480.00. Deducting
the Defendants’ contribution, the Plaintiff claims the balance of
K 38,520.00. The Plaintiff did not particularize the expenses.
He has not provided any receipts for the payments. In the
absence of the receipts, the Plaintiff is not entitled to the
amount claimed. However, it is obvious expenses were incurred
in meeting the funeral and the repatriation costs. I will allow
for a reasonable sum of K 12,000.00.
(emphasis added)
The plaintiff has claimed K5,000.00 for funeral expenses and K7,000.00 for post
burial expenses and customs. The total of these two claims is K12,000.00.
The evidence before the Court is that the funeral cost the plaintiff K11,000.00, and
that the plaintiff was paid K5,000.00 by the second defendant to assist with funeral
costs (per the affidavit of Mr Leonard Laki filed 14 November 2016). Further that
affidavit read:
12. The company Cacara Alam paid K7000 as to assist on funeral
expenses on the 10th. The money was given as K2000 for the
Provincial Government Death Compensation policy, and the
K5000 was for funeral expenses. The money was used to assist
pre-burial gatherings in Kimbe for two weeks. However, the post
burial gatherings in Kimbe extended to a month with additional
cost.
13. We had to pay for a coffin and the transport for the whole family
to Murien Village, Kandrian. We travelled to the village by ship
MV Tara Spirit on the 16th and arrived on the 17th. He was
buried at 1:15pm on 19th of January 2007.
14. Other expenses were met personally. These are customary
payments to the village relatives, pigs, land payments for burial,
grave workers, grave cleaner, pre-burial gatherings, end of
burial ceremony plus other customary rights.
...
16. After returning back to Kimbe, we had to end the funeral ritual
by paying off all who assisted. This involves killing pigs and
payment in money, tambu-shells, pig meat and garden food.
Since, we ran out of cash, my small brother and four teenagers
walked from Kandrian back to Kimbe. It took them five days of
travelling back to Kimbe on land and sea.
While the plaintiff has not particularised the expenses or provided evidence of
expenditure in the nature of receipts, he has provided significant detail of the costs
involved with his son’s funeral and other burial rites. I accept Dowa J’s comment in
Pea Paul that it is clear that expenses will be incurred in meeting the costs of the
funeral and other burial rites, and as such a reasonable sum in the range of
K12,000.00 is payable.
Although the plaintiff had already been paid K5,000.00 to assist in paying for
funeral expenses, it is clear on the evidence that the cost of the funeral and related
rites exceeded the amount already paid by the second defendant. Further, monies
already paid to the plaintiff are not to be taken into account, pursuant to s 30(d) of
the Wrongs (Miscellaneous Provisions) Act 1975:
30. E X C L U S I O N O F PAY M E N T S B Y I N S U R E R S I N
ASSESSMENT OF DAMAGES.
In assessing damages in an action under this Part there shall not
be taken into account–
...
(d) 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.
In the circumstances of the case, it is appropriate to order that the plaintiff be paid a
total of K12,000.00, being for K5,000.00 for funeral expenses and K7,000.00 for
post-burial expenses and customs.
Pain and Suffering
The plaintiff claims K80,000.00 for pain and suffering for the loss of the deceased. It
is clear upon the face of the material that the plaintiff and his family have suffered
much pain over the loss of the deceased which has been exacerbated by the drawn-
out nature of these proceedings. As Tamade AJ eloquently observed in Lumali v
National Sports Trust Ltd [2022] N9760:
11. ...As humans, as parents, the loss of children is unimaginable.
Parents hope that their children will bury them at old age, that
children are their hope, are the hope of society, of community and for
a nation. To even say that a parent must prove the pain and
suffering of losing a child is to not feel as humans, the trauma of
losing a child I can only imagine is carried by parents through out
their life and the burden gets somewhat lighter as the years go by
depending on how well they carry their grief or receive counselling
and heal from the trauma....
Earlier in this judgment I excerpted s 29 of the Wrongs Act, which permits the Court
to award damages by way of solatium to parents in respect of the death of a child.
Notwithstanding that s 29 of the Wrongs Act limits a solatium to K600.00, it is
common for the National Court, relying on the decision of the Supreme Court in
Wallbank v The State [1994] PNGLR 78, to award the amount of K3,000.00 to
parents of deceased children as a solatium. In particular I note such cases as Pea
Paul and Komba v Duwaba [2006] N2979 where an amount of K3,000.00 was
awarded under that head of damages.
I consider it appropriate to make a similar award of damages by way of solatium in
the amount of K3,000.00.
Conclusion
The plaintiff sought interest on damages awarded at the rate of 8% on the total
judgment sum from the date of filing of the writ of summons until final settlement
pursuant to sections 4 and 6 of the Judicial Proceedings (Interest on Debts and
Damages) Act 2015. It is appropriate that an order be made in those terms.
Finally, I note that in the writ of summons of the plaintiff, the plaintiff sought costs.
As a general proposition costs follow the event. It is appropriate that an order for
costs be made in such terms.
56. The Court orders that:
1. Judgment be entered in favour of the plaintiff in the following amounts:
(a) K100,800.00 for loss of income;
(b) K12,000.00 for funeral expenses and post-burial expenses; and
(c) K3,000.00 as a solatium.
2. The defendants pay interest at the rate of 8% on the total judgment sum of
K115,800.00 from the date of filing of the writ of summons until final
settlement pursuant to sections 4 and 6 of the Judicial Proceedings (Interest
on Debts and Damages) Act 2015.
3. The defendants pay the costs of the plaintiff on a party-party basis, to be taxed
if not agreed.
Office of the Public Solicitor: Lawyer for Plaintiff
Felix Kua Lawyers: Lawyers for Second Defendant
