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The Awarding of Damages to People Living a Part Subsistence Lifestyle in the Highlands of Papua New Guinea [1998] MLJ 3; [1998-99] 26 MLJ 58 (1 January 1998)

The Awarding of Damages to People Living a Part Subsistence Lifestyle in the Highlands of Papua New Guinea

Doug Tennent[*]

A. Introduction

One of the great challenges to courts in civil claims is to award damages in an appropriate manner which as far as possible places plaintiffs in the position that they would be in but for the injury. The awarding of appropriate damages to a person leading a part subsistence village lifestyle presents the court with a special challenge. This paper attempts to bring together the common principles that emerge through the leading cases, and also outlines some of the important issues that still need to be addressed and clarified by the courts in this context.

With the exception of exemplary damages the primary purpose of damages is to compensate the plaintiff.[1] They are not a compassionate payment. The basic purpose of awarding damages is expressed in the Latin phrase restitutio in integrum, to restore to the former position. The relevant application of this principle to the Papua New Guinea situation is expressed very well by Miles J in the 1980 case of Kaka Kopun v State of Papua New Guinea, when he states that the purpose of damages is to place the plaintiff (as far as money can) in the position that he or she would have been in but for the injury.[2]

What are the implications of this? When a person suffers a serious personal injury or the loss of a partner a major gap is created in the person’s life. Vital resources are lost which allowed a person to function adequately and obtain a reasonable standard of living. In the case of personal injury if the plaintiff becomes paralysed he or she loses mobility and independence, and also life expectancy is greatly reduced. If the plaintiff loses the use of an arm then this obviously limits the types of manual tasks that can be performed. If the plaintiff loses the use of a leg then his or her mobility and agility is greatly affected. If the plaintiff loses the use of an eye then the ability to perform certain tasks that require reading and writing is greatly reduced. If as the result of an accident a family loses a husband and father they lose not only the principal provider (this is especially the case in a village situation) but also the person who gives very important support, guidance and encouragement.

Clearly a gap has been created in the plaintiff’s life, a gap which makes the performance of essential life tasks very difficult. The gap has been created by a civil wrong caused by the defendant. If justice is to be achieved then this gap has to be filled. The method developed by the common law to fill this gap is the award of monetary damages. Money will not restore lost mobility, nor will it restore lost sight. Further it will not bring a person killed as the result of an accident back to life. But it will give the plaintiff resources to enable him to deal with the loss of mobility or sight. Damages in the form of money will provide the surviving members of the family of a husband and father killed in an accident with resources to continue to live their life in a reasonable manner.

Damages form a part of the common law, which has been adopted in Papua New Guinea by virtue of Sch 2.2 of the Constitution.[3] If damages are to be an effective remedy to compensate the victim of a civil wrong, the means of awarding damages must be flexible and able to adapt to changing social and economic circumstances. As Lord Denning has stated, the common law principles (which include damages) need to be moulded and shaped to meet the social necessities and social opinions of the present day.[4] Kapi DCJ supports these observations of Lord Denning when he states that the common law must be fluid and progressive.[5] Nowhere is the fluidity, adaptability and effectiveness of common law damages more tested than in the efforts of the courts to award damages in Papua New Guinea to people living a traditional village part subsistence lifestyle, who receive an injury which greatly inhibits their ability to function effectively in this life situation or who lose the support of a family member.

Claims for awards of damages by people living in a traditional village situation are most commonly those relating to personal injury or death which come about as the result of the commission of a civil wrong. The defendant in the majority of cases which come before the court is either the State or the Motor Vehicle Insurance Trust. In other situations where one villager causes the injury or death of another person (not in a criminal manner), an exchange of customary compensation is usually negotiated and exchanged among the parties or kinship groups concerned. The remainder of this paper will focus especially on the awards of damages by courts for personal injury or death to plaintiffs living a traditional part subsistence lifestyle.

B. Damages for Personal Injury

The true effects of personal injury caused by an accident for which another party is responsible can only be determined by analysing the plaintiff’s life style and situation and how the injury affects this. In personal injury cases damages are awarded under two broad headings: damages for pain and suffering and the negative impact that the injury has on the plaintiff’s lifestyle, and the economic loss which has come about as a result of the injury.[6]

First, how can one best describe the real life situation of a person living in a village? Miles J provides a clear explanation in the 1980 case of Kaka Kopun.[7] According to Miles J, a person living a village lifestyle at that time was following a part subsistence lifestyle. Part subsistence means that a person produces his or her own food, and collects firewood and other items to enable them to live a basic lifestyle. Over and above this there is the cash income gained from the sale of vegetables and coffee, which are surplus to the subsistence needs of the family.[8] The cash obtained from the sale of these items is sufficient to satisfy the minimum needs for clothing, transport and sundry items.[9] Also a family has to fulfil its traditional obligations by contributing to bride price payments, compensation and moka exchanges.[10]

To be able effectively to carry out a village lifestyle it is essential that a person is fit, has the full use of hands, arms and legs and is fully agile. Village life is very difficult. All work is done manually on what can be difficult terrain to manage, and the uncertainties of flood, drought and frost also have to be dealt with. Further, there is the need to respond to significant traditional obligations often without any warning. It is for this reason that Miles J notes in the case of Kaka Kopun that the impact of an injury on a person who depends upon his own labours to derive a living from the land can be very severe indeed.[11] This point is also acknowledged by Prentice J in the 1972 case of Raquel v Smerdon, when he notes that a person who is used to a full range of village activities including hunting, gardening, fishing, carrying of timber, house construction and the like would find that the loss of the use of an arm or a leg could cause a more severe invasion of his or her life than a similar loss to an urban dweller.[12] This is because the person would be less able to cope with the hazards of nature, fire and flood and perform the activities essential to living in a village.[13]

A survey of the cases would suggest that there are three major negative effects that a permanent personal injury can have on a person leading a traditional village lifestyle:

Each of these deserve further consideration.

Physical Effects

A person living a part subsistence traditional village lifestyle is dependent upon the full use of his or her limbs. This is only common sense. Through an injury a person can partially or completely lose the use of the limbs. The effects that the differing severity of injury has on a person’s lifestyle is revealed through different cases which deal with injuries of differing degrees of severity. In the case of Kokonas Kandapak v State of Papua New Guinea the plaintiff as the result of an accident lost the use of his hand by 50%. The court took this as meaning that he would be totally incapacitated for the first year of his injury but that over the next four years he would be able to adapt his manual activities in a manner which would enable him to function in a way which would not result in any economic loss.[14] More serious was the case of Kaka Kopun.[15] As a result of an injury to his left forearm and wrist the plaintiff was no longer able to grip the handles of a spade or hold an axe. His situation was aggravated by the fact that as a boy he had suffered an injury to his other hand as a result of which he was deprived of its full use. This made manual work in the village virtually impossible for him.[16] The effect was even more severe in the case of Seke Opa v The State.[17] In this case a fit young village person with coffee gardens and a young family to support had suffered an accident in which he received a severe head injury, an eye infection resulting in blindness, total paralysis in one arm, partial paralysis of one leg, and loss of ability to eat caused by decreased muscle power. The plaintiff had become a virtual invalid. More tragic still was the case of Aundak Kupil.[18] After a car accident the plaintiff was paralysed from the waist down. As a result, he result of this was that he lost the complete use of his legs, was unable to control his urine or his faeces, and was bedridden finding it even difficult to sit up.

These four cases illustrate the differing degrees of severity of impact that an injury may have upon a person’s physical functioning. From not being able to hold a spade to being completely bedridden, these injuries in differing degrees all have very negative effects upon a person’s life, making it very difficult, if not impossible, for a person to perform their work obligations. They are not able to clear the bush, turn the ground, dig the drains, build and repair the house, manage the coffee gardens, do any casual work and as a result would find it difficult to contribute to moka exchanges, compensation and bride price payments. As Miles J noted in Kaka Kopun, the effect is devastating.[19]

Loss of social status

The loss of social status and standing in the community is also very significant and must be taken into account by the courts. In accordance with custom a village person (especially in the Highlands) gains identity from two activities. The first is being able to work the soil and use the natural materials in the surroundings to secure an adequate standard of living for one’s family. Secondly, identity is gained through being able to fulfil one’s traditional obligations to the clan.

What is the effect of this inability to perform the two activities for the plaintiff? Perhaps Miles J in the case of Kaka Kopun best describes this. The injury to his hand aggravated by a pre-existing disability to his other hand meant that the plaintiff could not work in the gardens, do any work on his house or even be able to cook for himself. This reduced the plaintiff to a person of no standing in the community.[20] This was because he was unable either to take an active part in traditional ceremonies, or to respond to community demands of brideprice, compensation payments and moka exchange. Failure to be able to do this gives a person a sense of shame.

In short a village person’s sense of identity is undermined. One’s identity comes from being able to work the ground and from feeling a part of one’s community. To feel a part of a community one must be able to contribute to it. One of the implications of this loss of sense of identity is that village people tend to sit around the village feeling very depressed and having no motivation.[21] This is quite understandable in that they have lost their sense of identity and fear that any further activity will only aggravate the injury. They lack willpower, motivation and initiative. There is a lack of rehabilitation facilities and programmes in the villages and in the country generally compared to other countries. This means that the award of damages must aim to fill an even larger gap in these circumstances than in comparative situations overseas or even in urban situations in Papua New Guinea.

Effect of a permanent injury upon marriage

In the case of Kaka Kopun, the court acknowledged that the plaintiff’s marriage prospects were greatly undermined because of the injury suffered.[22] This was because a crucial quality that a woman is looking for in a marriage partner is a person who is able to do all of the work expected in the village situation. In the cases of Kokonas Kandapak and Seke Opa the marriages were placed under great stress because of the injuries suffered by the plaintiffs.[23] In the case of Seke Opa, where the plaintiff was an energetic young village person with a young family and who became a virtual invalid because of the injury, the wife had to assume a great many extra activities virtually doing the work of two people. She complained about being overworked and having to work around a husband who was always depressed with no motivation made life very difficult for her.[24] In the case of Pangia Toea v Motor Vehicles Insurance (PNG) Trust, the female plaintiff had as the result of an accident lost the full use of her left arm and 70% of the use of her left leg with the leg also being vulnerable to infection.[25] One of the unfortunate consequences of this accident was the break up of the plaintiff’s marriage. Los J noted that as a result of the injuries inflicted by the accident the husband did not like her. The reason for this is that she could no longer be a wife and mother as expected in the tough village life where she is required to garden, carry heavy loads and is expected to feed many close and distant relatives of her own and her husband. In short she was no longer able to fulfil her traditional obligations.[26]

The reactions of the spouses of their partners’ injuries certainly appear harsh and extreme. However when one considers the difficulty of village life and the need for the husband and wife to perform complementary work roles the reaction can be understood to a certain extent. The co-operative performance of complementary work roles in accordance with custom is the key to a successful highlands marriage.[27] The performance of complementary roles enables the couple to obtain an adequate subsistence existence for themselves and their families as well as being able to contribute to their traditional obligations. The failure or inability on the part of one of the parties to perform their role places unexpected and unreasonable demands upon the other party. What is already a hard and demanding lifestyle becomes even more so. Practicality and survival by necessity must be given priority. While traditionally the extended family is supposed to assist, in reality this often does not occur.[28]

Therefore the effect of an injury upon a village person performing a traditional lifestyle is very severe indeed. It either impairs or undermines his ability to do manual work the importance of which is central to a part subsistence lifestyle. The injury undermines his social standing in the community because of his inability to fulfil his traditional and social obligations. Finally it places great stress upon his marriage.

Damages awarded for pain and suffering and for the negative impact that an injury has on a plaintiff’s lifestyle are awarded as a lump sum. The pain and suffering includes the pain and difficulties experienced at the time of the accident resulting in the injury, the pain associated with treatment and hospitalisation and any ongoing pain and difficulties which are going to be with the plaintiff for an extended period of time, For example, in the case of Aundak Kupil who was completely paralysed as the result of an accident, the plaintiff was confined to a bed for the rest of his life which led to continual bed sores and being unable to control his urine and faeces.[29]

The negative impact of an injury upon a village person’s lifestyle have already been described in considerable depth. It has been suggested in some of the cases that the impact of the injury resulting in impaired use of limbs or damage to the spine to a person living a traditional part subsistence village lifestyle is more severe than to a person living in an urban or some other situation in which they are able to enjoy the modern amenities of life. The courts need to take this added severity experienced by a village person into account when determining the assessment of damages. This acknowledges the point made by Miles J in the case of Kaka Kopun that methods of awarding damages in industrialised countries may not be appropriate for Papua New Guinea.[30]

Further the courts need to be careful when using the damages awarded to injured expatriates as a guide to determining the appropriate amount of damages for the pain and suffering and negative impact of lifestyle on a traditional village person. Damages must be fair and have full regard to the living standards and situation of such people. The danger of using damages awarded to an expatriate as a guide to those which are awarded to a village person is revealed in the case of Aundak Kupil. The plaintiff was permanently paralysed. In determining the appropriate damages for pain and suffering, the cudge was strongly influenced by the case of Kerr v Motor Vehicle Insurance (PNG) Trust Ltd.[31]

Allowing for inflation, Bredmeyer J was of the opinion that the award of damages for pain and suffering for Kerr would have been K75,000. Although Kerr was paralysed he was able to return to Australia and through the assistance of a very effective rehabilitation programme was able to shower and dress himself, take responsibility for his own evacuations, use a wheel chair, drive a vehicle and maintain a clerical job. In comparing Kupil’s and Kerr’s situations, Bredmeyer J noted that Kupil’s situation was far more serious because Kupil was permanently bedridden, could not use a wheelchair and had continual bed sores. For that reason Bredmeyer made an award of damages for pain and suffering of K90,000.[32] The significant point here is that in comparing the situation of Kupil with that of Kerr, Bredmeyer J only took into account the physical pain and discomfort. He did not acknowledge nor take into account the added severity that paralysis would have on Kupil as a villager, and the fact that he would no longer be able to do any kind of work and that his identity had been undermined.

The Kupil case needs to be compared with that of Kaka Kopun, where Miles J did acknowledge the severity of a serious injury on a villager’s life and social status in the village.[33] In acknowledging the impact of this injury both physically and socially Miles J decided that it was necessary to award a substantial sum of damages for pain and suffering and the negative impact of the injury on the plaintiff’s lifestyle. He saw this award of a considerable sum as providing the plaintiff with some working capital to rehabilitate his coffee garden and buy himself back into favour with his people within the village, because they would see that he was tending to his coffee garden through paid labour which he supervised and would therefore once again able to respond to community obligations.[34]

The award of damages for pain and suffering to a person living a traditional village lifestyle should focus on two factors: the severe impact of an injury upon a village person who relies upon the use of his hands and legs for manual work; and secondly, the fact that damages should provide the plaintiff with some working capital to buy his way back into favour with the community. In doing so, the courts are showing a genuine understanding of the reality of the life situation of a village person.

Damages for Economic Loss

Under this head the court includes damages relating to loss of income which is the direct result of the injury, medical expenses (past and future) and costs relating to any items which have to be purchased because of the injury.

When considering the question of economic loss to a village person the issue which creates difficulty is that of income. How can this be determined? Here we are often referring to a person who gains some income from the sale of vegetables and coffee over and above what he and his family need to retain for their subsistence needs.[35]

In determining the loss of income derived from coffee in the cases of Kaka Kopun and Seke Opa, counsel for the plaintiffs called coffee experts as witnesses. In the case of Seke Opa, which was heard a number of years after the accident had occurred, the expert witness was able to indicate how much the coffee income had been reduced as the result of the plaintiff’s injury resulting in his inability to tend and maintain the garden.[36] The court in accepting this evidence awarded damages based upon the assessments of the expert witness. This evidence included the fact that the coffee garden as it stood only had a production life of ten years.[37] In the case of Kaka Kopun, the court considered the loss of both coffee income and food production (both for consumption and sale). The combined loss was assessed at K30 per week in 1980.[38] Here Miles J is taking into account the full impact of the loss of income resulting from the plaintiff’s being unable to work in the garden. If because of an injury a person can’t produce food for his/her consumption it is necessary to purchase the food. However a person can only purchase the food with money; hence the importance of damages.

In the case of Pangis Toea, Los J considered every aspect of the plaintiff’s pre-accident economic situation. The plaintiff had assisted her husband in the coffee garden. Because of this whenever the husband sold the coffee he would give the plaintiff K20. After carefully considering the evidence Los J decided that this should be taken into account as loss of income and valued it at K80 per year.[39]

These cases reveal the lengths that judges have gone to in order to ensure that all assessable lost income, being the result of the injury, is acknowledged and provided for in the award of damages. However to ensure that every relevant factor is taken into account with regards to economic loss suffered by plaintiffs, Miles J and Bredmeyer J have developed in their assessment of the award of damages three principles to ensure that every relevant factor is provided for in an appropriate award of damages.

The first point is the acknowledgement of the loss of earning capacity which comes about as the result of the injury. According to Miles J, once a loss of earning capacity is established, even if there is no evidence as to pre- and post- accident potential earnings, a trial judge must in general assess and award some compensation in this regard. It cannot be ignored.[40] Earning capacity must be taken into account. How is this to be assessed? In the case of Kokonas Kandapak, Miles J again said that the court has to do its best to quantify the loss even if the evidence does not enable it to be satisfied as to an exact figure. The court may use its local knowledge, imperfect as it may be, of things such as wage rates, market prices and the like.[41]

Woods J adopted Miles J’s reasoning in the case of Make Kewe v Kudip and State of Papua New Guinea.[42] In this case the plaintiff was injured in a car accident. The injuries were spinal which affected both his back and legs. This had a significant effect on his ability to perform his normal village work and activities. In determining the award of damages for economic loss, Woods J following the precedent set by Miles J was prepared to take account of two factors. First, he was prepared to place some value on the plaintiffs’ role and work as a villager. Secondly he was prepared to take account of the fact that because of the injury the plaintiff could no longer try and get a casual labourer’s job,[43] thereby noting the earning capacity lost as a result of the injury.

Why should courts take into account the loss of earning capacity? Careful consideration of the matter reveals that this is completely in line with the underlying principle of the award of damages, which is to place the plaintiff in the situation that he or she would have been in but for the injury. Before the accident, a plaintiff would have been able to take advantage of the part time labouring opportunities as they arise. Because of the injury this is no longer possible, and should therefore be taken into account in the award of damages.

Is it not possible to extend this principle of lost earning capacity when determining the economic loss resulting from the loss of production of a plaintiff’s coffee garden? Could the garden have been extended, developed and the production improved, something no longer possible because of the injury? In the case of Seke Opa, where the accident made the plaintiff into a virtual invalid, the plaintiff was no longer able to maintain or develop the coffee garden. The expert evidence called to assess the economic loss determined that the production would gradually decrease and that after 10 years production would cease. The court followed this evidence in determining damages for economic loss. No account was given to earning capacity. Yet elsewhere in the judgment, the point was made that prior to the accident the plaintiff was a healthy, hardworking young person in his early twenties with a good opportunity to extend what appeared to be a prosperous coffee garden.[44] The key phrase here is opportunity to extend. Is this not earning capacity? Should this not be taken into account in the award of damages? Given the picture painted of the plaintiff as a keen energetic young villager, could not it be inferred that but for the accident he would have extended and developed the garden? Is the court not supposed to take the plaintiff as it finds him?[45] It can thus be argued that there remains scope for the courts to develop further the principle of earning capacity.

The second idea has been developed by Bredmeyer J in the Kupil case. Both plaintiffs through the accident had been paralysed and bedridden. After awarding considerable damages for pain and suffering and the negative impact of the injury on the plaintiffs’ lifestyles, Bredmeyer J then proceeded to determine appropriate damages for economic loss. One important factor for Bredmeyer J was that neither plaintiff could contribute to the manual tasks in the village which was traditionally the work of the male. Bredmeyer J was of the opinion that this loss of labour had to be compensated for. The method of providing this compensation was both innovative and appropriate. He chose to include in the awards of damages funds to employ a labourer to do the manual work which the plaintiffs could no longer do. This was assessed at K15 per week which was at the time of the judgment the current rate for the hiring of a labourer.

This method could be used further in the situations of victims who are no longer able to tend to their gardens. To a village person their coffee and other gardens are central to their being. They have put much time, energy and resources into developing these gardens. This method if used properly can compensate not only for the loss of production and income but also for loss of earning capacity, allowing the plaintiff indirectly to ensure the development of the gardens, and to be able to respond in some way to traditional obligations.

The third factor which has been developed to assist in the assessment for the award of damages in injury cases is to allow for gradual improvement of a plaintiff’s functioning if it is appropriate to do so. Obviously it would only be appropriate in cases where a plaintiff has received partial loss to a limb. Miles J has developed this idea in the case of Kokonas Kandpak.[46] Here the plaintiff lost 50% of the use of his right hand. The other limbs were functioning normally. Miles J decided that this would have an effect on earning capacity in the following way. For the first year after the injury the plaintiff would be totally incapacitated.[47] For the second year the plaintiff would regain his earning capacity by a third. In the next three years the earning capacity would be a half. After that no further allowance was made for loss.[48] The reasoning behind Miles J’s award here is that if the loss of the use of the hand is only partial and the other hand is functioning normally, then over time the plaintiff will be able to adapt his work methods to cope with this partial loss. As this adaptation occurs he will also gain more confidence. The award ordered by Miles J gives the plaintiff plenty of time to do this.

To sum up, by placing an economic value on the plaintiff’s work as a villager; by taking into account the loss of earning capacity; and by showing the initiative to allow the hiring of a labourer to do the manual work which the plaintiff is no longer able to undertake (especially in the gardens), the courts have made significant efforts to award damages which can best place the plaintiff in the same position that he or she would have been in but for the accident.

C. Damages for Death

Serious injuries such as paralysis have extremely severe consequences for the injured person and his or her family. The death of a person has a severe impact on the deceased’s surviving family members. It is the surviving spouse who usually becomes the plaintiff and the court has the very difficult task of assessing and awarding damages in a way that can place the plaintiff and the children, as far as money can, in the same position they would have occupied had the death not occurred. The death of a person with surviving dependants living a traditional village lifestyle presents the court with a real challenge to determine appropriate damages.

When considering damages awarded for death arising out of a civil wrong it is again important to emphasise the point that the purpose of damages is compensatory and is not a compassionate payment. The one exception to this is the payment of solatium to the parents for the loss of a child.[49] The compensatory emphasis of damages even in the case of death is emphasised by Bredmeyer J in the case of Koko v Motor Vehicles Insurance (PNG) Trust.[50] In this case damages had to be assessed for two children after the loss of their mother in a motor vehicle accident. Bredmeyer J began by saying that 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 that they suffered.[51] Rather damages are awarded for the pecuniary benefit that the children might have expected to enjoy had their mother not been killed. This may seem rather harsh, but the judges developing the relevant principles over the years have apparently not felt it necessary to allow damages for grief in the case of death. It could however be argued that this forms a definite contrast with the damages awarded in personal injury cases for pain and suffering and the negative impact of the injury on a plaintiff’s lifestyle. It also provides a direct contrast with damages that are awarded for breach of contract, which may include compensation for distress and frustration in appropriate cases.[52]

Nevertheless, the courts in Papua New Guinea when awarding damages for the death of a father and husband living a traditional village lifestyle have developed a principle which, while not departing from the general theory of damages, allows them to take into account to a certain extent the loss of the emotional support of a husband and father to a family which comes about as the result of a death. This principle has been developed by Amet J in the case of Pike Dambe v Peri and State of Papua New Guinea, and is referred to as domestic paternal support.[53] In this case the plaintiff’s husband had been shot by a policeman during a police operation in the deceased’s area. The judge found the killing to be unjustified and the State liable for damages. The plaintiff claimed general damages, damages for economic loss and exemplary damages, plus interest and costs. For the purpose of this paper it is the manner of assessing general damages and damages for economic loss which is of interest.

The lifestyle followed by the deceased and his family falls into Miles J’s description of a part subsistence villager. He and the plaintiff planted vegetable and coffee gardens, which provided them with a shared income of K800 per year.[54] The judge acknowledged that the deceased had performed all of the manly physical work and the fact that he could no longer provide this would significantly reduce the production of the gardens and the resulting income. Even so, the amount awarded for damages for economic loss was only K300 per year, which was less than half of the total income. The assessment of economic loss here is difficult because the surviving wife will still gain some income albeit a substantially reduced income. How big is the reduction? Miles J provides assistance in determining the amount of loss in the case of Kaka Kopun. An expert witness from the Hagen area observed that in a traditional village situation where the husband and wife co-operatively performed their complementary roles in the garden, the production would be more than double that which the individual partners could produce themselves.[55] The fact that the joint work of the partners would be more than double that of an individual contribution should mean that the award of damages for economic loss in a situation such as this where the husband is killed should be just over a half of the amount that was earned jointly by the husband and wife.

In the Dambe case, Amet J went further than just acknowledging economic loss. He recognised that the family’s loss through the death of the husband and father was a loss with both tangible and intangible aspects. He brought this together under the heading of domestic paternal support, referring to three forms of support given by a husband and a father to his family in a traditional village situation. These are:

This is a significant loss and it is only proper that the court acknowledges this. It is not awarding damages for grief or consolation but is rather compensating for the loss of practical and emotional support. How was this acknowledged? The court made an award of K14 per week, of which K5 went to the mother (until she reached the age of 55), and K3 was given to each of the three children (until they reached the age of 18).[57] While this might not seem to be a large amount, it should be remembered that in this case exemplary damages were awarded to the value of K30,000. While not strictly relevant to the calculation of the other heads of damage, the amount of exemplary damages may have indirectly influenced the assessment of quantum of damages for domestic paternal support.

In this case, finally, the usual award of K1,500 was made for the loss of expectation of life.[58]

Woods J gave support to the principle developed by Amet J in the case of Seni Ela v State of Papua New Guinea.[59] The plaintiff was the widow of a motor vehicle accident victim. At the time of the death the couple had a child aged five. The deceased was a village person. He cultivated traditional crops and some coffee and was the sole support for the plaintiff and the child. The yearly income from the coffee was estimated to be K350, and that from vegetables was K50. The court, noting that this was a co-operative effort, made an allowance for the resulting reduction of coffee and garden income. He also made an allowance for other work done by the deceased for the family, namely the construction of gardens, fences and the construction and maintenance of the family home. This is very much in agreement with what Amet J refers to as domestic paternal support. In converting all of this into a cash figure, Woods J allowed K5.50 per week for the plaintiff until she reached the age of 55 and K5.50 per week for the daughter until she reached the age of 18.[60]

While the cases mentioned illustrate how this innovative principle of domestic paternal support has been described and developed, we need also to consider the notion of domestic maternal support. Bredmeyer J addresses this issue with regards to an urban situation in the Koko case,[61] in which the two children lost their mother in a motor vehicle accident. Bredmeyer J after a careful survey of relevant cases decided that it was possible to award damages for the following matters:

Woods J in the case of Nolnga v Motor Vehicles Insurance (PNG) Trust has applied the principles established in the Koko case to a village lifestyle situation.[63] A mother from the Jimi valley in the Western Highlands was killed in an accident. Surviving her was the husband (plaintiff) and three children aged 10, 9 and 4 years of age. Although the case took 5 years to come to court, the eldest child was only 14 at the time of the accident and therefore a dependent. Since the accident, the younger children had been looked after by their maternal grandmother in the village. Following the precedent established in the Koko case, Woods J allowed for a payment to each child of K3.50 per week, to be calculated from the time of the accident until they reached the age of 18.[64] As the two older children were 19 and 16 respectively at the time of the judgment, Woods J saw no justification for making any further award to them under the head of the increased risk of orphanhood. However for the youngest child he held that an award of K1,000 under this head was also proper,[65] the same amount that was awarded to the oldest child in the Koko case. As a principle, this approach could be further developed so that the head of damages can properly be called domestic maternal support. It would include the total support given by a wife/mother to the whole family in a traditional village situation.

One further issue which needs to be emphasised here is the importance of damages in the village situation in the case of a death. The co-operative work of the partners has been discussed. The loss of one partner creates a gap. Amet J in the Dambe case makes the point that while by custom the deceased’s relatives should help the surviving widow, they may in fact be reluctant to do so as they have their own families and gardens to attend to.[66] People are quick to criticise this lack of help. In reality immediately after the death of the deceased the relatives or extended family are very supportive. However as time passes there are new events, situations and obligations which arise, requiring immediate attention and diverting the focus away from the needs of the widow. There may be tribal fights or tensions, compensation demands, bride price and moka exchanges to contribute to, unexpected floods and droughts and raids by the police destroying large parts of people’s livelihood. In a village situation therefore people have many conflicting demands for their time and resources. In practice, the most immediate demands tend to take precedence, and the widow with her children may not receive priority attention.

Finally, something should be said of what are known as “dependency claims”. Several cases will be referred to, in which a claim was brought by a parent whose child was killed through a civil wrong. The child had either been providing significant economic support to the parents, or would have done so but for the fatal accident. In the case of Mina Uokare v State of Papua New Guinea, a claim was made by the 45-year-old parents of an 18 year old man killed in a motor vehicle accident.[67] The parents maintained that they relied on their son for support. The son had been living a traditional village lifestyle and giving significant support to the plaintiffs. While they also had other children, it seemed to be the deceased who was the main support giver. The court acknowledged that this loss of support was significant and that the parents would have increasingly relied on the son’s support as they grew older. The judge made a K2 per week allowance for the loss of support during their estimated life expectancy of 20 years.[68] A similar claim was made in the case of Jack v Marius Karani and the State.[69] In this case the deceased was shot dead by the Station Commander of the Wabag police station without any apparent reason. Amongst other claims, the plaintiff, who was the step mother of the deceased, claimed damages for loss of support. The court again acknowledged this aspect of the claim,[70] and awarded K5 per week for twenty years which the court took to be their life expectancy. Further, in the case of Simin Dingi v Motor Vehicles Insurance (PNG) Trust the court went so far as to take into account under the head of loss of earning capacity the loss of potential bride price to the parents of a teenage daughter who was killed in a road accident in the Simbu province.[71] But for the death resulting from the accident, the plaintiff could have expected the bride price payment for his daughter. Woods J therefore saw it as only proper to take the bride price into account in the award of damages. He was guided in his assessment of quantum by the average bride price paid in the Gumine area of Simbu.[72]

The willingness of the court to award damages for the loss of support of an older child acknowledges the importance given to family obligations in Papua New Guinean society. As parents grow older they rely more upon their children for support. The premature death of a child brought about through a civil wrong means that the parents lose that support, a loss for which they should properly be compensated by the defendant.

Reasonable Funeral Costs

Under s 28(2) of the Wrongs (Miscellaneous Provisions) Act (Ch 297), the court is able to award damages for reasonable funeral costs in cases where the death of a person has been the result of a civil wrong.[73] In Papua New Guinea when a death occurs there are many traditional obligations which must be fulfilled in accordance with the custom of a particular area. In the case of Inabari v Sapat and State of Papua New Guinea,[74] Salika J noted that generally a death in Papua New Guinea is regarded as a major occasion. The length of the period of mourning and the number of mourners often depends upon the status of the person who died.[75] In any case it is the task of the deceased’s immediate relatives to provide for the mourners for so long as the mourning period extends. This in practical terms can be quite an expensive exercise. The costs also include ceremonies and other gatherings which occur after the funeral. In this particular case the deceased was a child from Dagua in the East Sepik. There the mourning period usually extends for two weeks. The deceased’s parents had to provide food for the mourners for this period of time. The issue for the court was whether reasonable funeral costs could include traditional obligations associated directly with the death and costs incurred after the burial which were related to the mourning.[76] The judge responded affirmatively, and was prepared to include as reasonable funeral expenses the cost of the food for feeding the mourners for two weeks, telephone calls to inform people about the death and the cost of a vehicle to take the deceased’s body to the village.[77]

In summary, in awarding damages for death the courts have made a definite attempt to take account of the real conditions of life of people living in a traditional village situation. This is seen in:

D. The Form of the Order for Damages

Under the present common law principles relating to damages, once the amount of damages has been assessed and determined they are awarded to the plaintiff in a lump sum, and (subject to the possibility of appeal) the court’s task is at an end. The court is not concerned with how the money is spent, and there is no safeguard to ensure that it will be spent on rehabilitating the plaintiff or supporting the victim’s family.[78] In a way this undermines the central purpose of damages which is to place the plaintiff in the same position that he or she would have been in but for the relevant injury or death.

Other difficulties may also arise. After the judgement it may be realised that the costs of continuing medical care have been underestimated. Similarly, while damages might be awarded on the basis (following medical opinion and evidence) that the plaintiff would live another three years, he or she might in fact live another ten years and this extra seven years is not provided for in the damages. However for better or worse the award of damages stands.

In the Kupil case the difficulties surrounding the award of damages were considered in some detail by Bredmeyer J.[79] He quoted a report published in Australia on this very matter, which, among other points, suggested that damages for future economic loss and medical needs should be awarded on a periodic basis.[80] Bredmeyer J was clearly influenced by this proposal. As a result, while damages for pain and suffering, loss of expectation of life, past economic loss and the associated interest were awarded by way of the traditional lump sum, the damages relating to future economic loss and medical needs were instead ordered to be paid at a set amount each fortnight. The court’s authority to make such an order was found in s 155(4) of the Constitution, which provides:

“Both the Supreme Court and National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice to a particular case.”

The important phrase here is “to do justice to a particular case”. According to Bredmeyer J, the purpose of this section is to enable the courts to tailor their remedies to meet the circumstances of the particular case and so ensure that justice is done.[81] The court felt that in this particular case it was in the interests of justice to order damages for future economic loss and medical expenses to be paid on a fortnightly basis. The reason for this is that both of the plaintiffs had been seriously paralysed. Although, their life expectancy was estimated to be only five years,[82] it was possible that they might live longer. Should the court award damages for future economic loss in a lump sum assessed on a life expectancy of five years and then the plaintiffs lived for ten years, for example, there would be no provision for that extra five years. The fortnightly order would thus ensure that the plaintiffs received a regular payment for their remaining years.

Woods J adopted this innovative approach of Bredmeyer J in the case of John Taka v Leo Kipi and the State.[83] Again the plaintiff was a village person who had been permanently paralysed. Woods J was of the opinion that the court had to consider the future needs of the plaintiff and make an appropriate order to ensure that he was guaranteed a regular payment to cover his difficulties and need for continual care.[84] It was noted that for most people in Papua New Guinea (including the plaintiff), there was no effective system in place to manage effectively large sums of money in a way that fully protected their future interests.[85] Consequently, the court decided to follow the initiative of Bredmeyer J and, relying on s 155(4) of the Constitution, ordered that the plaintiff’s damages for future economic loss and need for future care should be awarded fortnightly at the rate of K70 per week, to be paid for the duration of the plaintiff’s life.[86]

This method of awarding damages for future economic loss and medical needs is both innovative and appropriate for the Papua New Guinea village situation for two reasons. First, because of the previously mentioned problems with lump sum awards. Secondly, because the receipt by a villager of a large sum of money leads to pressure from a person’s relatives to distribute that money in order to acknowledge various relationships of support and reciprocity. Since in reality the plaintiff may then be left with very little of the amount awarded to him or her, the fortnightly award allowed for under s 155(4) is more appropriate. Relatives seeing the ongoing needs of the plaintiff would more readily be able to appreciate that the payment of this modest but regular sum of money is for the purpose of tending to the plaintiff’s ongoing needs.

The use of the periodic payment for future economic loss and medical needs is another development made by the courts to ensure that the award of damages to a person living a traditional lifestyle is effective and appropriate. The other parts of the damages, for pain and suffering and the negative impact of the injury on the plaintiff’s lifestyle, would still be awarded in a lump sum, thereby providing working capital to be used to rehabilitate vegetable and coffee gardens and maintain respect in the community.

E. Relationship between Common Law Damages and Customary Compensation

Occasionally the courts are required to consider the situation where prior to the award of damages some customary compensation has been paid by the clan of the person responsible for the civil wrong. This happened in the Kupil case.[87] The vehicle in which the accident occurred was owned by the State. The driver was a State employee. However the driver was also a member of a clan having a close relationship to both plaintiffs and the accident occurred in that area. As a result, the clan of the driver made a compensation payment to the clan of the plaintiffs – for each plaintiff, a separate compensation payment was made of K2,400, forty pigs and two muruks. Each plaintiff then with the assistance of one of their leaders distributed the pigs and muruks to their fellow clan members in accordance with local custom, retaining themselves and their families the cash of K2,400.[88]

Bredmeyer J had to determine what effect the customary compensation payment should have on the damages. To assist him in this, expert witnesses were called to explain the purpose of compensation in the Wahgi area. He was also guided by Sch 2.1 of the Constitution and ss 3 and 5 of the Customs Recognition Act (Ch 19). Schedule 2.1 of the Constitution provides for the recognition of custom unless it is inconsistent with a constitutional law or statute or repugnant to the general principles of humanity.[89] To analogous effect, under s 3 of the Customs Recognition Act a custom is recognised provided that its practice would not result in some injustice or would not be in the public interest.[90] By s 5 of the same Act the courts are permitted to take custom into account where justice requires it or where the failure to take it into account would create an injustice.[91] In short, Bredmeyer J was able to acknowledge the custom of compensation provided that its practice was in the public interest and the general interests of justice, and was not repugnant to the general principles of humanity.

The evidence given concerning custom in the Wahgi area revealed that it had two purposes. First, it was aimed at easing the tensions created by the injury to the plaintiffs and to restore peace, harmony and good relationships between the two clans. The second purpose was to avoid retribution or “payback” from the victim’s clan.[92] While the second purpose did not meet with the court’s approval, Bredmeyer J was of the view that the aim of restoring harmony and good relationships between the two clans was in accordance with the general principles of humanity, and that on that basis the custom of compensation might be recognised.[93] In the result, the court decided that the damages to be awarded should be reduced by deducting the amount of monetary compensation retained by each of the plaintiffs.[94] The purpose of making this deduction, according to Bredmeyer J, was to discourage customary payments in situations where common law damages can be obtained.

While Bredmeyer J in this case appeared to be trying to avoid unjust enrichment his reasoning evokes two responses and observations. First, that compensation is central to Highlands custom and it is one of the most important, if not the most important method of avoiding tribal fights when tensions emerge between clans. A custom fulfilling that role should not be discouraged. Secondly could it not be argued that common law damages and customary compensation perform two different yet complementary roles. Traditional compensation focuses on inter-tribal dynamics and tensions arising as the result of an injury or death. The purpose is to restore harmony and good relationships. The focus is therefore on the group and not on the individual. The aim of common law damages, in contrast, is to restore the plaintiff to the same situation that he or she would have been in but for the accident. The focus on group dynamics on the one hand and the needs of the individual on the other, if applied properly and with sensitivity, can be combined to address and attempt to rectify the tensions, sufferings and disabilities created by the civil wrong. Why not allow the awards of customary compensation and common law damages to do this in combination, to complement each other without any reduction? Given that the largest portion of customary compensation is distributed to the wider clan members, this could hardly be said to amount to unjust enrichment.

F. Discussion and Conclusion

From one perspective it can be said that the methods adopted by the National and Supreme Courts of Papua New Guinea to award damages in an appropriate manner to people living a semi-subsistence life style gives effect to the statement of Lord Denning that common law damages must be shaped and moulded to meet the social necessities and social opinions of the present day.[95] In making allowances for loss of earning capacity, the loss of possible bride price, and the need to meet customary obligations as part of funeral expenses, the courts are acknowledging the principle of restitutio in integrum. This is also evident in the development of the principle of domestic paternal support in the case of Pike Dambe, which recognises the negative impact that the death of a parent has on the surviving family members. The courts of Papua New Guinea have thus moulded the common law principles of damages to suit the local conditions.

Further, the courts in this country have succeeded in going beyond the traditional principles of damages by resorting to the power contained in s 155(4) of the Constitution. By departing from the doctrine that damages should be awarded in a lump sum once and for all by the court at the hearing, Bredmeyer J referred both to general difficulties with the notion of lump sum damages and to the inappropriateness of the principle for the Papua New Guinea situation.

It is unfortunate that this initiative has not to date been further developed by other members of the judiciary. Given the continual traditional demands by relatives on people who receive large amounts of money, it is necessary to provide some protection to the injured party or surviving family member of the deceased. The use of s 155(4) of the Constitution could be extended to create a trust arrangement, whereby trustees would be responsible for administering the money for the best interests of the plaintiff/beneficiary. Respected members of the community such as a priest, pastor or educated community leader could be appointed as trustees. They would have the responsibility of dealing with the demands from relatives, and while acknowledging these would also ensure that the money was used to support the plaintiff as intended. It would of course be necessary to gain the approval of the plaintiff for such a proposal to be given effect.

The courts are yet to find a satisfactory way to acknowledge the complementary nature of common law damages and customary compensation. This aspect of the Kupil decision needs to be reconsidered in the light of a clear understanding of the nature and purpose of both payments - to acknowledge their complementary nature would be a significant contribution in developing a Melanesian jurisprudence.

In conclusion, this paper has focused on the award of damages to a plaintiff living a traditional part-subsistence lifestyle. The two situations that have been considered are those of personal injury and death. Consideration and analysis of the cases has revealed the efforts and sensitivity of the courts in awarding damages in an appropriate manner to people living in these circumstances and acknowledging the particular impact that a death or injury would have in this context. For example, the courts have noted and reflected in their assessment of damages the severe effects that an injury may have on a person dependent on his or her own manual activity to obtain subsistence, and also the effects of injury on a person’s social status. In the case of death the courts have considered and acknowledged the role that different family members play in a traditional village situation, and emphasised the implications of the death on the family and in the wider community.

As a final comment, it is suggested that in addition to continuing to observe and develop further the above principles, the courts must also give attention to the following matters:

[*] Lecturer in Law, University of Papua New Guinea.

  1. [1] Kerr v Motor Vehicle Insurance (PNG) Trust [1979] PNGLR 251, at 268.

[2] Kaka Kopun v State of Papua New Guinea [1980] PNGLR 557, at 565.

[3] Under Sch 2.2 of the Constitution, common law and equity as developed up until Independence Day are adopted and shall be applied and enforced as part of the underlying law, except if, and to the extent that -

“(a) they are inconsistent with a Constitutional Law or a statute; or

(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or

(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1.”

The underlying law also includes customary law which according to the Constitution is supposed to take precedence over common law. However, under Sch 2.3 (development of the underlying law) there can also be a blending of common law and customary law.

[4] A Denning, The Discipline of Law (London 1979).

[5] The State v Bisket Pokia [1980] PNGLR 97, at 100.

[6] Under these two headings fall interest, costs and the assessment of past and future economic loss.

[7] [1980] PNGLR 557 at 560.

[8] Ibid.

[9] Ibid.

[10] In the Western Highlands, a moka exchange refers to a traditional exchange of pigs and other valued commodities between particular clans. The purpose of this exchange is to create and cement good relationships between the groups, which may continue for generations.

[11] [1980] PNGLR 557 at 559.

[12] Raquel v Smerdon (Unreported Supreme Court Judgment No 706, 1972).

[13] Raquel v Smerdon (Unreported Supreme Court Judgment No 706, 1972).

[14] Kokonas Kandapak v State of Papua New Guinea [1980] PNGLR 573.

[15] [1980] PNGLR 557.

[16] [1980] PNGLR 557 at 565.

[17] Seke Ope v State of Papua New Guinea. [1987] PNGLR 469.

[18] Aundak Kupil v State of Papua New Guinea [1983] PNGLR 350.

[19] [1980] PNGLR 557 at 559.

[20] [1980] PNGLR 557, at 561.

[21] Ibid.

[22] [1980] PNGLR 557 at 565.

[23] [1980] PNGLR 573, and [1987] PNGLR 469, respectively.

[24] [1987] PNGLR 469, at 471.

[25] Pangis Toea v Motor Vehicles Insurance (PNG) Trust v State of Papua New Guinea [1986] PNGLR 294, at 299.

[26] Ibid.

[27] This point has been strongly emphasised by writers such as Strathern. Feelings of affection come about as the result of the couple working together co-operatively.

[28] This is because the extended family is continually having to cope with many other demands on its resources and services.

[29] [1983] PNGLR 350 at 371.

[30] [1980] PNGLR 557 at 561.

[31] [1979] PNGLR 251.

[32] [1983] PNGLR 350 at 373.

[33] [1980] PNGLR 557 at 560.

[34] Ibid.

[35] [1980] PNGLR 557. In this very thoughtful judgement Miles J provides a very clear definition of semi-subsistence lifestyle.

[36] [1987] PNGLR 469 at 471.

[37] Ibid.

[38] [1980] PNGLR 557 at 563.

[39] [1987] PNGLR 469, at 479.

[40] [1980] PNGLR 557.

[41] [1980] PNGLR 573 at 574.

[42] [1986] PNGLR 279.

[43] [1986] PNGLR 279 at 281.

[44] [1987] PNGLR 469 at 472.

[45] [1987] PNGLR 469 at 479.

[46] [1980] PNGLR 573 at 577.

[47] Ibid.

[48] Ibid.

[49] This is provided for under s 29 of the Wrongs (Miscellaneous Provisions) Act (Ch 297).

[50] [1988] PNGLR 167.

[51] [1988] PNGLR 167, at 168. In this case the father was not able to bring a claim because it was his negligent driving which was responsible for the accident.

[52] In Papua New Guinea the case which best sets out when it is appropriate, in cases of breach of contract, to award damages for mental distress, upset and the like, is Harding v Teeroi Timbers Pty Ltd [1988] PNGLR 128.

[53] [1993]PNGLR 4.

[54] [1993]PNGLR 4 at 12.

[55] [1980] PNGLR 557, at 560.

[56] [1993] PNGLR 4, at 11.

[57] Ibid.

[58] In common law jurisdictions it is usual for the courts to set a fixed amount for the loss of expectation of life. Up until 1994 the amount that was established and followed in Papua New Guinea was K1,500. However in 1994 the Supreme Court in the case of Wallbank v Papua New Guinea [1994] PNGLR 78 increased the amount to K3,000. This is the established amount which is followed today.

[59] [1988-89] PNGLR 653.

[60] [1988-89] PNGLR 653.

[61] [1988] PNGLR 167.

[62] [1988] PNGLR 167 at 168.

[63] [1991] PNGLR 436.

[64] [1991] PNGLR 436 at 438.

[65] [1991] PNGLR 436 at 439.

[66] [1993] PNGLR 4, at 12.

[67] [1988-89] PNGLR 655.

[68] [1988-89] PNGLR 655 at 656.

[69] [1992] PNGLR 391.

[70] [1992] PNGLR 391 at 394.

[71] [1994] PNGLR 385.

[72] [1994] PNGLR 385, at 386-87.

[73] This may include provision for the erection of a tombstone.

[74] [1991] PNGLR 427.

[75] [1991] PNGLR 427 at 431.

[76] Ibid.

[77] Ibid.

[78] Bredmeyer J makes this point strongly in the case of Aundak Kupil v State of Papua New Guinea [1983] PNGLR 350.

[79] [1983] PNGLR 350 at 383.

[80] Ibid.

[81] [1983] PNGLR 350 at 384.

[82] [1983] PNGLR 350 at 385.

[83] [1995] PNGLR 254.

[84] [1995] PNGLR 254 at 257.

[85] Ibid.

[86] Neither Woods J nor Bredmeyer J saw any difficulty in giving effect to the order. Woods J was of the opinion that the fortnightly payments could be organised by the Department of the Attorney General through the government payroll system, and paid into a bank account in the name of the plaintiff. It would then be up to the Solicitor General to keep in touch with the plaintiff until his eventual demise.

[87] [1983] PNGLR 350 at 355.

[88] Ibid.

[89] Schedule 2.1 of the Constitution states that, subject to sub-ss (2) and (3), “custom is adopted, and shall applied and enforced as part of the underlying law”.

[90] Customs Recognition Act (Ch 19).

[91] Section 5 of the Customs Recognition Act (Ch 19).

[92] [1983] PNGLR 350 at 357-58.

[93] [1983] PNGLR 350 at 362.

[94] [1983] PNGLR 350 at 363.

[95] See A Denning, above n 4.

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