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Supreme Court of Vanuatu |
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IN
THE SUPREME COURT
OF
THE REPUBLIC OF
VANUATU
(Civil
Jurisdiction)
CIVIL CASE No. 146 of 1994
BETWEEN:
HAROLD
QUALAO of P.O.Box
462,
Port-Vila, Efate, Republic of
Vanuatu
Plaintiff
AND:
THE
GOVERNMENT OF
THE
REPUBLIC
VANUATU
First Defendant
AND:
Dr.
RONALD PEACH of C/-
Vila
Central Hospital, Port-Vila, in
the
Republic of
Vanuatu
Second Defendant
Coram:
Chief Justice Vincent
LUNABEK
Counsels:
Mr. Mark Hurley for the Plaintiff
Mr.
George Boar for the Defendants
JUDGMENT
INTRODUCTION
The
plaintiff Mr. Harold Qualao claimed for damages and compensation for the death
of his son, Jack Kapera Nicholson Qualao. On 8
December, 1999 the Court held
that the defendant Government was responsible for the negligence of its servants
and agents and responsible
for the system in place at the hospital which leads
to the death of the plaintiff's son on 29 August
1993.
The plaintiff, then claims
for:
1. Damages under the Fatal Accidents Act (1846-1959) UK;
2. Damages under the Law Reform (Miscellaneous Provisions) Act (1934) UK;
3. Compensation under the customary law of Ambae;
4. Interest; and
5. Costs.
By
Consent Orders of 20 September 2001, the parties agreed to settle damages under
the Fatal Accidents Act (relief 1) and damages
under the Law Reform (Misc.
Provision) Act (1934) UK (relief
2).
The only outstanding issue is
the compensation under the customary law of Ambae as contained in paragraph 3 of
the plaintiff's relief.
However, counsel for the plaintiff informed the Court
that the plaintiff does not seek a separate award of damage in respect of
paragraph
(1) and (3) of the relief sought. Rather, the plaintiff applies for
the Court to rule on what is the appropriate customary law of
Ambae which is
relevant to the deceased.
The
deceased Jack Kapera Nicholson Qualao while playing rugby at Independence Park,
Port Vila on Friday 27 August 1993 was knocked
unconsciously. He was at that
time 19 years old and employed as an Assistant Chef at a Port Vila restaurant.
He was shortly after
the incident taken to Vila Central Hospital for injury
sustained on his head. The deceased was attended to and examined by the general
surgeon at the hospital, Dr. Ronald Peach. He diagnosed the deceased with an
extradural hemorrhage, for the bleeding in the brain
area. Dr. Peach decided and
made a hole in the deceased's skull to remove the collection of the blood. This
was done and the deceased
appeared to improve after the operation. The next
morning however, the deceased fell out of bed and hit his head on the floor.
This
resulted in another operation to remove more blood from the brain, which
was also performed by Dr. Peach. The operation was not successful
and the
deceased's condition became critical. The following morning, Sunday 29 August
1993, he was flown to the Liverpool Hospital
in Sydney, Australia, where a
specialist examined the deceased and found that his brain has already died. His
respirator was turned
off later that evening and he
died.
EVIDENCE
AND FINDING
There are three
witnesses called by the Plaintiff to give evidence. The defendants do not call
any witness.
The facts as
established by the evidence are as
follows:
Mrs. Elizabeth Qualao and
the Plaintiff (her husband) had four children, Jack Kapera Nicholson Qualao
(deceased), Yvonne Qualao, Colin
Qualao, and Jeannick Qualao. The deceased went
to Malapoa College. He was one of the bright students in year nine (9) at
Malapoa
College in his year and was awarded a scholarship to do year ten (10) to
year eleven (11) in New Zealand in 1989. He went on the
scholarship but due to
influence of friends, he came back in August of the same
year.
Her son (deceased) wanted to
become a pilot. His interest started since he was a small boy. After her son
came back from New Zealand
she had asked him to look around for a job. He looked
around and could only find a job in a restaurant. He worked as Assistant Chef.
While working there was an advertisement in the paper for application for Air
Traffic controller. Her son applied for it and was
shortlisted. Evidence of this
was exhibited.
Her son earns about
24,000 Vatu per month. On his paydays, he gave money for the house to support
the family. She also said that her
son was living with the rest of the family up
to the time of his death.
Mr.
Harold Qualao gave evidence to the following effect. He is a Civil Engineer and
is self-employed. In his family there are eight
of them, four women and four
boys. And in his father's family, there are three girls and four boys. His
father is the eldest. He
had four children, Jack who is the eldest, Yvonne,
Collin and Jeannick. Since his father is the first born of his family, he as the
first born son observes the responsibility that his father is obliged to carry
out. He said that as the first born of the family
besides looking after his
children he also looks after uncles and mother's brother. He also looks after
his parents. They all stay
together.
Mr. Qualao in support of
his evidence gave examples of responsibility he played in his extended family
such as meeting funeral expenses,
helping extended family when sick,
contributing during marriages, payment of school fees when one family member
requested and other
items extended families requested. He said that if he fails
he would fail his duties. Under cross-examination, Mr. Qualao was asked
as to
whether the responsibilities of the first born son are transferred to the second
son, if the first son died. He answered in
the
negative.
Mr. Qualao said that
Jack as the eldest son learned his responsibility as the first born. He said
that up to his time of death he
stayed with them and he taught him about those
responsibilities that are required of him. He told the court that Jack went to
the
village since he was 5 or 6 years old. When he was at Malapoa, he went
during his holidays to the village. Mr. Qualao said his uncle
promised to give
land to Jack for gardening. He said that he bought two plots of land in Santo
and he registered them in his name
and Jack's. These two plots of land then
changed to his name after Jack's death in
1999.
Mr. Qualao further said that
as a first born son of the family they look at him as the head of the family.
Jack as his first born
son is also the head of the family. This is the practice
of his island, Ambae. This part of evidence is accepted as
such.
Chief Denis Vira was called
by the plaintiff as a chief and expert of the custom of Ambae. He told the court
that he came to Port
Vila in 1971 and is the chief of Ambae in Port Vila. He
said that he has around 300 people living in Port Vila. He said that his
responsibility is to ensure his people live
peacefully.
Chief Denis Vira told
the court that he knows Qualao family since he was a child. He said that he knew
Jack. Jack is a kind and very
responsible boy. Although he is not always stayed
with the family, he said Jack was very helpful to his parents and he did
anything
that his parents asked him to
do.
Chief Denis Vira told the
court that the responsibility of the eldest son in the family is different from
that of the other brothers
in the family. His responsibility is quite
significant from that of the other brothers. He told the court that the father
usually
give his custom title and responsibilities to his elder son. But when
the elder son dies and his father survives him, then, the father
transfers his
custom title and responsibilities automatically to the second born son in the
family.
That part of the evidence
of Chief Denis Vira is contradicted by that of Mr. Qualao. Chief Denis Vira was
called as an expert witness
on the custom of part of Ambae where the Plaintiff
came from. If there is a contradiction, then, the evidence of Chief Vira, as
expert,
is to be preferred on that point. I do so
here.
The factual finding of the
Court is that the father transfers his custom titles and responsibilities to his
first born son. Once the
transfer is done, the son becomes the head of the
family. If the first son dies and the father survives him, the father transfers
his custom titles, duties and responsibilities to his second born
son.
1.
SUBMISSION OF BOTH PARTIES
The
Plaintiff''s claim is made pursuant to Article 95(3) of the Constitution which
provides that:
"Customary law shall continue to have effect as part of the law of the Republic of Vanuatu".
It
is the plaintiff's submission that as the eldest son in the family, the deceased
would have been expected throughout the course
of his working life to not only
provide for his parents and siblings but also to his entire extended family as
far as custom practices
of Ambae is
concerned.
The Plaintiff stated
that there has been oral and documentary evidence led as to the financial
contribution made by the deceased at
the date of his death. They said Jack
contributed about 100,000 VT per annum for the period of 20
years.
These contributions
represent payments expected in custom from the deceased and such payments would
have only increased once the deceased's
earnings increased, notwithstanding that
he subsequently would move out of the family home and/or became married with
children.
The defendant referred
to the case of Robert
Boe and John Ronnie Taga v. Ben Thomas
(Vanuatu Law Reports, pg. 293) in which the Court was asked to consider the
custom of the parties in assessing general damages. The
Hon. Chief Justice Cook
held as follows:
"I regret that I cannot accede to this submission (of Mr. Rissen) as custom varies so much in each village throughout Vanuatu that it would be quite impossible to lay down guidelines for those dealing with the matter (at pg. 296)."
I
doubt as to the relevance of such a submission and the two (2) cases referred to
above as they do not assist the Court
here.
The defendant further
submits that in respect to reasonable expectation of pecuniary benefit,
irrespective of whether custom is accepted
as an appropriate matter for
consideration in assessment of damages, the dependants could not reasonably
expect to receive from their
son a sum of 100,000 Vatu per annum for the period
of twenty (20) years from their son Jack Qualao. The defendant submit finally
that other circumstances would likely affect and decrease the amount of money
the deceased would be expected to provide to his family,
such as raising his own
family.
APPLICATION
OF THE LAW TO THE FACTS AS FOUND BY THE
COURT
Based on the factual finding
of the Court, I, therefore, make a declaration as a matter of law that the
customary law of the plaintiff
is that the father transfers his custom titles,
duties and responsibilities to his first born son. If the first son dies and the
father survives him, then, the father transfers his custom titles, duties and
responsibilities to his second born son. The declaration
is to the effect that
that is the appropriate custom of the area or part of the area or part of the
Island of Ambae where the plaintiff
comes from. As such, it is the customary law
of the plaintiff.
Under the
Constitution of Vanuatu, customary law is part of the laws of this country
[Article 95(3)]. The law I am going to apply
in this case is the customary law
of the plaintiff as found and declared above. The question I should remind
myself of is whether
this is an appropriate type of case requiring the
application of customary law. Assessing the facts before the Court I am of the
view that this is not an appropriate case where customary law should be applied
and/or if the customary law of the plaintiff is applied,
the claim for customary
compensation must fail for the reasons as set out below:-
First, customary law is an independent source of law as provided under the Constitution (section 95(3)). Therefore, if a claim is sought under customary law, it must be pleaded on the basis of custom. One cannot claim for compensation under customary law and plead it under the imported law as what was done in this case. Such would demean the status of the customary law as an independent source of law and create unnecessary complexities.
Second, the plaintiff claim for financial support to the entire extended family. I am obliged to say that the claim is too remote. Beside that, the Fatal Accidents Act requires that dependent of the deceased needs to be clearly stated in the claim. This is not the case in the present case. A claim cannot be made in vacuum.
Third, in accordance with the plaintiff's customary law, the first (eldest) son of a family has responsibilities over his other brothers and family. He is the head of the family. On his death, his title and responsibilities are automatically transferred to the second born son in the family.
In the present case, the evidence is that the deceased has a junior brother namely, Colin Qualao. Applying the customary law of the plaintiff, the customary title and responsibilities of the deceased brother are automatically transferred to his junior brother Colin Qualao. Any customary duties and responsibilities of the deceased Jack are in accordance with the custom of the plaintiff, to be carried out by the deceased's brother, Colin Qualao.
Fourth, in accordance with the plaintiff's customary law, usually the father transferred his custom titles and responsibilities to his first born son. When the father survives his first born son's death, then, he transfers them to the second born son in the family. In the present case, there is no evidence that the plaintiff/father, Mr. Harold Qualao, had transferred his title and responsibilities to the deceased son during his lifetime. It follows then that the deceased first born son has not been bestowed with his custom title, duties and responsibilities by his father. This means that the deceased at the time of his death has no custom duties and responsibilities over his families. Any money paid by the deceased first born son, during his life time to his extended families, cannot amount to a performance of a duty and/or responsibility based in custom and expected in custom from the deceased. His father, Harold Qualao, has never transferred his customary title and responsibilities to him. The financial contributions made by the deceased son to his families, are simple gifts.
Finally, it is common ground to note that the purpose of the customary compensation is not to pay for the injury or death caused but to bring peace between the affected parties. This is based on the belief that human being is valuable to the society and one cannot value human being in term of monetary terms. This was held in the neigbouring Melanesian Solomon Islands in the case of Longa v. Solomon Taiyo Ltd (1980) SILR 239 at pg. 259 which then Chief Justice Daly said:
"I do not think that I can get much assistance from custom compensation awarded in similar cases in Solomon Islands where the basis of compensation is often not an attempt to compensate the victim but rather a customary amount paid to restore the peace between the lines of the victim and the wrongdoer".
In
the present case, the customary compensation is not to bring peace between the
affected parties, but to compensate the loss of
the financial contributions made
by the deceased as payments of monies expected in custom from the deceased by
the extended families
in the performance of his custom duty and/or
responsibility. However, as it transpires from the evidence and findings, and on
balance,
there is not enough evidence to prove the customary compensation claim
on the basis of the customary law of
Ambae.
Based on those factors, I,
therefore, come to the conclusion that the customary compensation claim must
fail. There will be no order
as to costs. Each party to bear their own
costs.
DATED at
PORT VILA this
31st
Day of MARCH 2004
BY THE COURT
Vincent
LUNABEK
Chief
Justice
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