Category Archive Tort

The Wrongs (Miscellaneous Provisions) Act (Chapter 297) provides two (2) actions that a person can claim on behalf of the Deceased. These actions for are:

1. Dependency claim under Part IV (wrongful act or neglect causing death) of the Act;
2. Estate claim under Part V (survival of causes of action);

If a child died because of the negligent act or omission of another person, then the parents can bring an action for damages under Part IV (wrongful act or neglect causing death) of the Wrongs (Miscellaneous Provisions) Act (Chapter 297). In this action, a parent can claim as relief solatium.  What is solatium? Solatium is a form of compensation for the suffering caused to a parent by the death of the child.

Who is considered a child?

For the purposes of this action, who is considered a child? What is the age limit wherein a person can be considered a child? A child is under the age of 18 as set out in the cases of in Manduru v Motor Vehicles Insurance Ltd [2016] PGNC 308; N6509 and Hariwaja -v- PNG Power Limited [2014] N7488 and Mari v Tahong [2015] PGNC 280; N6241.

Who is considered a parent?

For the purposes of this action, who is considered a parent? The Act defines parent to mean:

1. where the child has been adopted, the adopted father or mother of the child;
2. where the child has not been adopted, the father or mother of a legitimate child; and
3. where the child has not been adopted but is born out of wedlock, the mother of an illegitimate child.

How much is the award of solatium?

The award of solatium is set by the Act at a fixed sum of K600. This is considered too low in the current economic climate. However, it is the statutory amount. The only way to increase or lower is amount is by way of amendment of the Act.

The Court will award the amount of K600 equally to both parents if they brought the proceedings together. However, if both parents survive the child and only one parent brings such as action to claim solatium, then the Court will award only half as it is due. The Court will look at the conduct of the parent in relation to the deceased child and if it finds it unsatisfactory, it may refuse to grant solatium. Furthermore, if a parent dies, his right to this claim does not survive him for the benefit of his estate.

All in all, solatium is a relief awarded to the surviving parent of a child in compensation for the suffering he endured because of the death of the child. The award is set by statute at K600 to be shared equally by both parents.

For more similar articles, click here.

Jurisdictional basis of the Action of Estate Claim

The Wrongs (Miscellaneous Provisions) Act (Chapter 297) (herein referred to as the Act) provides two (2) actions that a person can claim on behalf of the Deceased. These actions for are:

1. Dependency claim under Part IV (wrongful act or neglect causing death) of the Act;
2. Estate claim under Part V (survival of causes of action).

The action of estate claim has its basis on section 34 (1) of the Act. What then is this action? It is a claim by the estate of the deceased for loss of expectation of life of the deceased.

Award of Estate claim

For a long the time, the conventional amount awarded for this head of relief was the sum of K3, 000.00. The Supreme Court awarded this amount in Wallbank and Minifie v The State [1994] PGLawRp 601; [1994] PNGLR 78 (Los, Brown, Sakora JJ).

Justice Canning, 12 years after Wallbank and Minifie v The State [supra], then increased this conventional amount to K6, 000.00 in Tirima v Angau Memorial Hospital Board [2006] PGNC 127; N3106. Although the decision to award the amount of K3, 000.00 in Wallbank and Minifie v The State [supra] was a decision of the Supreme Court, Justice Cannings justified this departure by stating that the sum of K3, 000.00 was only a guideline set by the Supreme Court. From this guideline, the National Court must take into consideration the circumstance of the case such as inflation to make the award.

Justice Canning, 9 years after Tirima v Angau Memorial Hospital Board [supra], then increased this amount of K8, 000.00 in Wandokun v Leeman [2015] PGNC 85; N5950 and applied the same in Manduru v Motor Vehicles Insurance Ltd [2016] PGNC 308; N6509.

Justice Kandakasi (as he then was) affirmed the decisions of Justice Cannings in those cases and awarded the sum of K8, 000.00 as estate claim in Hariwaja -v- PNG Power Limited [2014] N7488 and Mari v Tahong [2015] PGNC 280; N6241.

In awarding this amount as estate claim, the judges considered inflation and the improved standard of living that people in Papua New Guinea now have as opposed to their forefathers. Many people are now moved into a cash-based economy rather than living on subsistence farming. This, therefore, increases the value in estate of a person. Hence, it would only be fair and it would be in the interest of justice that this award be increased.

Who is entitled to estate claim?

If the deceased is married, then the surviving spouse would be entitled to the relief of estate claim. Even if the deceased had children with the surviving spouse, the children are not entitled to this relief.

If the deceased is a child, then who would be entitled to this relief if the deceases is a child? Is this relief even available to claim?  Yes, this relief is available. The parents of the child are entitled to this relief. See Manduru v Motor Vehicles Insurance Ltd [supra].

All in all, when making a claim on behalf of a decease, the Plaintiff must ensure to include this action and heard of relief.

For more similar articles, click here.