Joseph v MVIT (PNG) Trust [1999] PGDC 29; DC359 (19 August 1999)

DC359

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO100 OF 1998

BETWEEN

Jambri Joseph
Complainant

V

M.V.I.T (PNG) Trust
Defendant

Mt. Hagen: M.M. Pupaka
1999: 08th & 19th August

Cases Cited:
M. V. I. (PNG) Trust –vs- James Pupune [1993] PNGLR 370
M. V. I. (PNG) Trust –vs- John Etepe (Unreported) SCA 460
Lucy Kongupi –vs- M. V. I. (PNG) Trust N1043
Kosi Bongri –vs- The State [1987] PNGLR 478
Kuriti –vs- The State [1988-89] PNGLR 633
Tumu –vs- M. V. I. (PNG) Trust [1988-89] PNGLR 638

Counsel
Mr. K. Sino For The Complainant
Mr. M. Pokia For The Defendant

M.M. PUPAKA: The complainant sued for damages, both general and special damages, against the defendant Trust, alleging injuries in a motor vehicle accident that was said to have occurred on the 17th of December 1997 on the Dei Council - Mt. Hagen Road at Gumanch. The complainant says she was a passenger on a Mitusbishi Canter Truck, Reg. No. P.7945, which truck (referred to as the vehicle herein after), was owned by a Helen Kits and driven by one Davae Koi.

The complainant alleged that the vehicle developed a sudden mechanical problem when its steering rod broke loose. She further said the driver could not control the vehicle, which was driven at high speed, properly, and since the vehicle was rounding a corner it careered off toward the side. The vehicle is said to have then hit the side of a mountain and rolled over, and as a result the complainant’s hand was injured when it got struck under the vehicle’s side rails.

The Complainant had sued the defendant Trust by virtue of Section 54 (1) of the Motor Vehicles (Third Party Insurance) Act Chapter 295 (the Act), alleging that at the time the vehicle was involved in that accident it was duly insured with the defendant against third party liability. Section 54 (1) reads:

"1. Subject to subsection 2, any claim for damages in respect of the death or bodily injury to any person caused by or arising out of the use of:

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle on a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle can not after due inquiry search be established;

Shall be made against he Trust and not against the owner or driver of the motor vehicle and subject to subsection 5, any proceedings to enforce any such claim for damages shall be taken against the Trust and not against the owner or driver of the motor vehicle."

There is evidence that the motor vehicle was duly insured with the defendant Trust against Third Party liability under Policy Number 1438030. The Police Accident Report, which is in evidence, discloses the Third Party Insurance Policy number, though only just, as the Police Accident Report copy in evidence is not too clear. Whilst the number plate, which is P.745, is disclosed quite clearly, the date of expiration of the insurance cover cannot be ascertained. The insurance cover expiry date seems to have been entered at the appropriate place on the Report but it is not legible. However, as I said, there is other sufficiently cogent evidence of current registration and insurance. The policeman who authored the Accident Report testified. The Report was tendered through him. He also gave direct evidence of the "vehicle’s papers" being in the vehicle. He said the vehicle’s registration and insurance were still current. The witness could not say whether the vehicle’s documents, pertaining to it’s registration and insurance status, which were kept in the vehicle, were the original or copies, however both council did not examine him on that aspect of his evidence. However it is not an issue as to whether or not keeping vehicle registration and insurance certificates (or copies of it) in the vehicle is not appropriate. Therefore I should accept that the policeman was properly satisfied upon inspection of the subject vehicle at the scene of accident, where it still was, that the documents he discovered then in the vehicle quite adequately disclosed its current insurance and registration status. Consequently, I am equally adequately satisfied of the vehicle’s insurance and registration status.

In the statement of claim annexed to the summons and complaint the complainant pleaded negligence solely against the driver. Mr. Pokia, for the defendant Trust, made the point of referring specifically to this aspect, and I must agree that that was how she pleaded negligence. The complainant had pleaded that the driver had "failed to service and maintain the vehicle in good running order; driven the vehicle at a speed that was excessive in the circumstances; failed to see, stop or swerve or any other manner (sic) so as to manage or control the vehicle and avoid the accident."

The complainant alleged no specific negligence against the owner of the vehicle in her pleadings.

Evidence of negligence by the driver is a general assertion that he employed relatively excessive speed. The complainant and her husband, who was also a passenger on the vehicle at the time, says the driver, drove at high speed. However the driver and the policeman who attended at the accident scene do not share the views of the complainant and her husband on the level of speed of the vehicle. The driver and the policeman attribute the cause of accident solely to the vehicle’s steering rod breaking loose.

The relative locality of the point of accident on the road proper has not been adequately described but on the Accident Report, under the ‘Sketch of Accident Scene’ column, there appears a somewhat faded sketch of the road, (this document was a photocopy of a original). The sketch shows the point of accident to have been at a slight curve. During the evidence the point of accident was described only as a bad road with potholes on it.

It is not clear if the driver, having driven "normally" or "slowly" as he says, could have applied the vehicle’s brakes to prevent the vehicle swerving to the sides. It is not clear if the curve or bend on the road was sharp or only slight. It is not clear if the driver could have at least applied the brakes to stop or retard any further movement of the vehicle. I raise the obvious lack of evidence on these aspects deliberately because the driver, like all other drivers, is expected to display the skills of a reasonable and competent driver. It is all right for the driver to say that the steering rod came loose suddenly, taking him by surprise giving him inadequate time to prevent the vehicle from swerving towards the side of the road. However it also behoves the driver to expound further on this. Perhaps he could not do anything else because, for instance the vehicle was faced off the road ahead at the critical moment and there was insufficient space between the front wheels of the vehicle and the side of the road toward where the vehicle was faced? Then maybe he may want to add that the terrain on the roadside towards where the vehicle was headed was such and such that the over turning of the vehicle was inevitable. I say all these because the driver has not said why he could not prevent the vehicle going off the road by simply applying the vehicle’s brakes.

It is common knowledge that the act of driving is not composed solely of managing the steering apparatus. It also involves other vital manoeuvres like applying brakes, reducing speed by way of the pressure on the accelerator pedal, and other such acts. Clearly the driver would have found it necessary to reduce speed and slow down to stop the vehicle. Just why he could not attempt to do so is not said. In the absence of evidence of that sort the complainant’s allegations of excessive speed becomes a serious issue for consideration. A vehicle in motion is a dangerous thing. The driver must be in full control of it. He must be in control to the extent that when a dangerous situation is suddenly presented, be it for instance someone or thing suddenly crossing the road ahead or there is a steering failure like in this instance, the diver must act to avoid an accident. His counter actions must be such that he is said or seen to act or react like a "reasonable and competent" driver. To fail to react to avoid an accident when a dangerous situation presents itself, as would a reasonable and competent driver, is to fall below the standard expected of the driver, and that amounts to negligence.

As I alluded to above, in this instance it is not certain as to whether the driver applied the vehicle’s brakes and if not why not. However I must generally find that the driver failed to arrest the speed of the swerving motion. I should accept that to be so because there is no other possible explanation as to why the forward motion of the vehicle was not and could not be stopped. A sketch of a road with a slight curve, without more evidence, would not suffice as the reasons why the brakes were not used.

The complainant evidently neglected and failed to plead negligence against the owner. Failing to service and maintain the vehicle, particularly a PMV, in good running condition is a duty incumbent on the owner. The driver maybe equally duty bound, however in a claim such as this; one would need to establish that the driver had such a duty. Proof of the driver’s obligation to service and maintain the vehicle is clearly lacking. For the purposes of these proceedings I think it is sufficient that the duty to service and maintain the vehicle is presumed to be that of the owner alone.

The defendant has seized upon the lack of pleadings against the owner and has submitted with vigour that the Court finds the cause of the accident to have been a broken steering rod. It is urged, since no negligence could then be established against the driver, the Court should, as a consequence, find for the defendant Trust on the bases that no proof of negligence exists.

On the other hand council for the complainant, obviously having had the benefit of studying the final submission of the defence, has attempted to negate the force of the defence submission in the following manner. It is submitted that the cause of accident clearly was, and can only have been, the excessive speed employed by the driver. It is further submitted that the complainant’s own witness, the driver of the vehicle, cannot be relied upon. It is said the cause of accident cannot be a broken steering rod because there is no proof of it. I think this – the complainant’s submission – stands out as a decidedly sorry excuse for not amending the statement of claim to plead negligence against the vehicle owner. Failing to service and maintain the vehicle in good repair was quite consciously pleaded as a head of negligence. It cannot have been a mistake. On the evidence a broken steering rod stands proved as one of the main reasons why the accident occurred. I would refer to and discuss shortly if this assists the complainant in any way at all, however it ought to be stated that I find attempts by the complainant’s council to negate the owner’s negligence this way to be strange to say the least.

Now what does the lack of pleading (of negligence) against the owner of the vehicle amount to? Does that mean negligence has not been proved? I think not. To say that negligence against anyone has not been proved or made out, despite the evidence of the broken steering rod, is to part company with reality. How can any one say negligence has not been proved, when clearly the same has been proved against the owner of the vehicle? The evidence was regularly adduced in a contested hearing. The Court cannot just ignore evidence properly before it.

Further, the issue of negligence was properly and fairly litigated. The defendant cannot now complain or go back to the lack of pleadings as to the negligence of the owner. Proof of negligence by the owner was allowed in during the course of the proceedings. In the case of M.V.I.T. -v- JAMES PUPUNE [1993] PNGLR 370, the Supreme Court confirmed this proposition. The Supreme Court later reaffirmed the proposition in the case of M.V.I.T. -v- JOHN ETEPE (Unrep.) SCA 460. It is helpful to cite the Supreme Court’s statement in the case of M.V.I.T. -v- PUPUNE (supra) at page 374-5:

"Council for the appellant, by his conduct at the trial, has allowed the issue of economic loss, which was not pleaded, to be litigated. This was clearly indicated by not objecting to evidence relating to matters not pleaded and by contesting the matter relating to economic loss on their merits. It is clear from the authorities, we have referred to that, if a party allows an issue which is not pleaded to be litigated fairly, he can not on appeal hark back to the pleadings and argue that the issue was not pleaded. We agree with council for the respondent that the appellant cannot now raise this on appeal."

Mr. Pokia elicited the full details of the cause of the accident from the complainant’s second witness, the driver of the vehicle, through the process of cross-examination. Again, as I said, he cannot now complain. I must therefore find that the breaking loose of the steering rod of the vehicle rendered the vehicle unmanageable whilst in motion. Lack of proper service would, as a matter of course, be the reason why the steering rod broke. This must therefore ultimately mean the owner was at fault.

The owner’s apparent negligence coupled with the driver’s failures referred to above can only go to prove negligence, and in my view there is sufficient proof of negligence. Negligence in this sense is negligence per se. Obviously the driver and the owner of the vehicle owed a duty of care to the complainant. If there is any remiss by the driver or the owner, by law the Trust is liable. The Trust cannot have it both ways. Once negligence is made out, unless the Trust cannot be liable for other reasons, it is liable. The case of LUCY KONGUPI -v- M.V.I.T. (Unrep.) N1043 is no authority for the defence submission that one must plead negligence against the driver or owner specifically and then later prove that specific assertion at the trial. That case only merely states the obvious purposes of the Motor Vehicles (Third Party Insurance) Act. I quote at page 3 of Justice Woods’ judgment in that case (supra):

"Secondly I am not satisfied that the claim in negligence has been made out. Third Party Insurance is not a no fault liability protection. The compulsory insurance ensures that the victim of negligent driving would not go empty handed because the driver or owner lacked the financial resources to meet the obligation. It helps the system of negligent driving work but it does not change the system itself. Therefore there must be some element of negligence or some way some one can assume some negligence."

However, all I have here is the plaintiff riding on the back of a vehicle, not registered or equipped to take passengers safely on the back. She then gets up and leans over to contact the driver but falls off. Whilst she says he was driving fast it would appear to be a subjective assessment and there is no objective evidence to infer excessive speed. The vehicle did not run off the road or any thing like that. Her getting up while the vehicle was travelling on a rough slippery road was a silly and negligence act in itself." (I have added the emphasis).

The complainant herein in no way contributed negligence like in the above case. Further, unlike in the above case there is negligence of the defendants covered here. There is neither assertion nor proof of any other person or body, other than the driver and owner, being at fault. One of the main purposes of the Motor Vehicles (Third Party Insurance) Act Chp. No. 295 was to set up a scheme to compensate injured persons who have suffered ascertainable damages as a direct result of the use of a motor vehicle. Whether the subject vehicle is insured or not, and indeed whether or not the same is identified, are no barrier to any proper claim. The Trust therefore cannot insist on strict proof in circumstances such as in the instant case. For to do so only otherwise highlights the Trust’s insincerity in forcing matters to litigation for no apparent reason than an altitude which may be summed up as: ‘You prove it, we would pay you if you do, too bad if you don’t even though we otherwise think you may have a good case.’

On the evidence the complainant is identified as a married woman and mother. She is a villager in her forties. The medical report now in evidence describes her injuries as "lacerations over the dorsum of the right hand." The doctor later wrote, "The lacerations had healed with no physical loss." The doctor further wrote that "Apart from the first MP joint Gembri has stiffness of the other four (4) MP joints resulting in total ten percentage (10%) loss of efficient use of the right hand."

Obviously the defendant Trust, or more particularly its council Mr. Pokia, thought there were inconsistencies, and enough, to question the reviewing doctor’s assessment of 10% loss of efficient use of the right hand. Mr. Pokia now submits that the real bases of the assessed loss of 10% is not known, for instance, no reference to any cuts that would have affected any nerves such as to affect the use of the hand despite the lacerations that had "healed with no physical loss."

Dr. Fred Wurr, the current Director of Medical Services at the Mt. Hagen General Hospital, was called by the complainant basically to have the Medical Report prepared by a Dr. L. Warangi tendered. The latter doctor had treated the complainant’s injuries and subsequently reviewed her injuries and prepared the Medical Report. However Dr. L. Warangi, having left the Mt. Hagen General Hospital, was unavailable. Dr. Fred Wurr was carefully cross-examined by Mr. Pokia of counsel for the Trust. Dr. Fred Wurr generally agreed that the function of the hand, specifically the important function of the hand in its upper hand to lower hand and wrist and finger co-ordination, could be affected if tendons have been cut or severed. The doctor said that an ordinary cut, with no severance of tendon and nerves, would not result in any functional loss to the hand. He further said, depending on the kind of injuries and any resultant severance of nerves and tendons, there would be losses of sensation to the hand.

Dr. Wurr declined to comment upon a proposition put to him by Mr. Pokia, that it would be correct to say a mere laceration of dorsum of hand would not result in 10% loss of efficient use of hand. Dr. Wurr said he was not a surgeon and that he would go along with the surgeon’s (Dr. L. Warangi’s) presumably educated and intelligent assessments.

In short, all these would not adequately clarify the issue: The credibility of the 10% loss assessment. In the face of what seems to be a conclusive and final Medical Report, this Court cannot infer what is not stated clearly or at all. I cannot know if any tendons and nerves were injured or affected. However, I am not sure if the Court can find fault with the Medical Report only on the bases of lack of what only seems to it to be vital facts. When in doubt the Court should agree with what Dr. Fred Wurr said of Dr. L. Warangi’s Report. It is safer to go along with what looks to be the surgeon’s educated and intelligent assessment. In the circumstances it can only be accept that the surgeon made an intelligent and educated assessment. It is not as if there is absolutely no evidence at all. There is the evidence of stiffness of the four (4) MP joints. The stiffness was noted and recorded. It can only affect the use of the hand. It is parting company with reality to say such conditions cannot affect the efficient use of the hand.

I accept for the purposes of these proceedings that the complainant has proved the level of injuries she claimed and asserted in her statement of claim.

For the purposes of assessment of damages, I am unable to recall any comparable precedents where awards had to be made for lacerations of the dorsum of the right hand which otherwise healed well but with stiffness in the MP joints. The cases of known arm injuries referred to by both counsel either deal with severe injuries or talk about loss of function in localised areas of the arm. For instance the case of KOSI BONGRI -v- THE STATE [1987] PNGLR 478 deals with an injured right elbow with 100% loss of efficient use of the elbow. The case of KURITI -v- THE STATE [1988–89] PNGLR 633, deals with a dog bite on the left arm resulting in scaring and sensory loss with 30% loss of ability in the forearm. Other cases deal with injuries to the hand but coupled with other bodily injuries as well.

The case of TUMU -v- MVIT [1988–89] PNGLR 638 appears somewhat nearer to the instant case. There the plaintiff, a medical orderly, aged 35 at trial, suffered a fractured wrist. The arm was kept in a splint for six (6) months and the residual disabilities included pain and some limitation in movement, which restricted him in tasks such as lifting patients. In that case the Court awarded general damages for pain and suffering and loss of amenities at K8, 000.00.

I think the Tumu case (supra) is a shade more serious than this case. However that case was decided nearly a decade ago. That would just about bring this instant case that much closer, if not on par, by way of and for the purposes of an appropriate award for the injuries suffered herein. Under normal circumstances I would be inclined to award K8, 000.00 as a global award as in the Tumu case. However, in the instant case the complainant has limited her claim to K6, 000.00 for what she called "general and special damages." She was forced to go to trial over this claim. She did not amend her claim. I disagree with the complainant’s counsel Mr. Sino, that the Court has discretion to make an award beyond the scope of the pleadings and the claim. Moreover the complainant pleaded that she had suffered "NIL" economic loss, and presumably as a result she did not claim any economic loss. Again she went to trial without amending her pleadings. I must say I am unable to manoeuvre out of these very clearly restricted circumstances to award or assess any economic loss and special damages.

In the end I find for the complainant and make a general award of K6, 000.00 in damages for pain, suffering, and loss of amenities. I further order that there be interests paid on the award at the statutory 8%. The complainant shall have her costs of these proceedings.

Kunai & Co. Lawyers: Complainant
Young & Williams Lawyers: Defendant