How Are Damages Assessed for a Villager or Subsistence Farmer?

Most Papua New Guineans injured on the roads are not in paid employment. The damages judgments show the courts working out, case by case, how to compensate a loss that has no market price.

The problem

A wage earner’s economic loss can be calculated from pay records. A village woman who can no longer carry a bilum of kaukau up a hill has lost something just as real, but there is no figure to start from. The courts have refused to treat that loss as nil. As Woods J put it in Walpe v MVIT [1993] PGLawRp 548; [1993] PNGLR 434, the plaintiff “is a villager ... in the subsistence economy. Again, this is very hard to calculate”, but following earlier cases the court assessed “K3,000 as a global amount for economic loss”.

Three approaches

How the courts have done it

A global award for general damages and economic loss together. Tommy v MVIT [1991] PGNC 26; N1023: K25,000 for a village man with fractures of both legs “to cover pain and suffering” and economic loss. Kapia v MVIT [1991] PGNC 28; N1024: K26,000 for an elderly woman’s pinned leg fracture, “a global amount to cover economic loss as well in the absence of any exact figures”. Kunton v MVIT [1991] PGNC 21; N997: K15,000 for a village woman’s arm and pelvis.
A separate global sum for economic loss. Walpe: K3,000. Yomo: K10,000 for a paraplegic. Kandaso v MVIT [1992] PGNC 22; N1074: K1,600 past and K12,000 future for a paraplegic village woman who “had no permanent income earning job”. Oka v MVIL [2001] PGNC 109; N2122: K5,000 for “economic loss of subsistence farming”.
A weekly figure capitalised. Guli v MVIT [1994] PGLawRp 620; [1994] PNGLR 304: a 29-year-old with a healed leg fracture, K3 a week for 26 years on the 3 per cent tables, K2,841. Kulange v MVIT [1990] PGNC 13; N824: K2 a week for a woman with stiff hands. Kiap v MVIT [1994] PGNC 12; N1236: K5 a week for 15 years, K3,160. Ambom: K10 a week for 40 years at 5 per cent, K12,400, for a woman who lost an arm.

The figures are small, and were small even in the 1990s. Modern courts have been more generous: Tuman v MVIL [2017] PGNC 375; N6923 awarded a village man K12,000 global economic loss for neck and chest injuries, and Waso v MVIL [2021] PGNC 623; N9664 awarded K20,000 for past and future loss to a self-employed woman who had to prove her earnings.

The value of a village woman’s work

The courts have expressly rejected any discount for gender. In Terema v MVIT [1994] PGLawRp 599; [1994] PNGLR 41, awarding K26,000 to a married woman whose leg was amputated, the court said “the loss to a married woman can be assessed just as much as loss to a young man, for a woman is expected to participate in quite physically demanding tasks”. Joseph v MVIT [1991] PGNC 52; [1991] PNGLR 453 added K7,000 to general damages for a woman’s “restricted participation in the village subsistence economy”; Palga v MVIT [1991] PGNC 72; [1991] PNGLR 446 included “the general lifetime disability in pursuing village work” within K18,000. In Bonnie v MVIT [1994] PGLawRp 632; [1994] PNGLR 393 damages were expressly “awarded on the basis of plaintiff’s role as a village woman which entails a role as a subsistence gardener”.

Dependency when the deceased had no wage

The same problem arises when a villager is killed. In Elewai v MVIT [1992] PGLawRp 615; [1992] PNGLR 34 the court held that it “must assess the deceased’s contributions to the family in a village subsistence economy where there are no exact figures”, and allowed K6 a week to the widow for 30 years and K2.50 a week to a customarily adopted child. Aure v MVIT [1992] PGNC 1; N1031 and Kopon v MVIT [1992] PGNC 29; N1084 used K5 and K6 a week. Where the deceased had some cash income from coffee or a trade store, that is added: Wamel v MVIT [1991] PGNC 22; N1002 used K55 a fortnight for a Works Department labourer with a coffee plot. See dependency claims.

Pigs, gardens and customary payments

Losses in kind are recoverable if proved. Ambom valued 31 pigs lost because the plaintiff could no longer tend them at K150 each, K4,650. Customary compensation the plaintiff has received from the driver’s relatives is deducted: Wisi v MVIT [1992] PGNC 12; N1040 (pigs and cash worth K1,000); Kosam v MVIT [1993] PGLawRp 557; [1993] PNGLR 481 (three pigs and cash, about K2,000); Oka (K5,000 cash and fifteen pigs). Customary obligations arising from a death, including the loss of an expected bride price, can themselves be a head of loss: Dingi v MVIT [1994] PGLawRp 630; [1994] PNGLR 385.

Evidence that helps

Village claimants succeed on this head when someone describes, concretely, what the claimant did before the accident and cannot do now: the size of the garden, the market days, the coffee trees, the pigs, the loads carried, the school fees paid from produce. A doctor’s percentage disability plus a relative’s account of the daily work is usually enough for a judge to fix a figure. Silence on the point produces the “I am unable to consider any economic loss” of Maipen.

Sources

Check the section yourself

Before relying on anything here, read the current text of the Motor Vehicles (Third Party Insurance) Act (Chapter 295) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.