Maimel v MVIT [2000] PGDC 40; DC419 (14 June 2000)

	Home \| Databases \| WorldLII \| Search \| Feedback Papua New Guinea District Court

M. M. PUPAKA: The complainant sued the defendant Trust pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter No. 295, (the Act), for damages for injuries allegedly received in a motor vehicle accident.

In the trial of this matter the complainant testified in person. He tendered a sworn affidavit into evidence. [Exhibit "D"]. He then called one other witness who was the police-investigating officer. An affidavit sworn by that policeman was tendered into evidence. [Exhibit "E"]. Three other affidavits were tendered into Court by consent – in fact all the affidavits were tendered by consent. These other three affidavits [being Exhibits "A", "B", & "C"] are from three doctors. These contain medical reports from Dr. Kulunga, Dr. Kubu, and Dr. McKup respectively. The defence adduced no evidence of its own but did cross-examine the complainant and his single witness at length.

Both council have filed final submissions. I now propose to consider those and the evidence available. The facts are appropriately disclosed and discussed in the body of this judgment.

The complainant recalled driving up the Sir Okuk Highway around Avi Market, which is along the Mt. Hagen /Kudjib section of the said Highway, on the 6th of April 1993. He was driving a utility vehicle, Reg. No. AFE.993, [vehicle two], up towards Mt. Hagen behind another utility vehicle, Reg. No. AFY.746, [vehicle one]. Vehicle one was owned by James Kuange, and vehicle two was owned by Menau Menga. Both vehicles were properly registered and insured at the relevant times. The complainant said the vehicle in front, vehicle one, signalled left to apparently pull over on the left side of the road opposite the market at Avi. (Avi Market was on the right of the two vehicles). Being of the view that the vehicle in front was going to stop, the complainant swang his own vehicle right on to the middle of the road to proceed to Mt. Hagen. However in the same moment the complainant accelerated to over-take, the vehicle in front suddenly swang right also, apparently to turn into the Baisu Road. Baisu Road leads into the Sir Okuk Highway through Avi Market.

As a result the complainant collided into the driver’s side of the vehicle in front. The vehicle in front must have come off better then the complainant’s because the driver of it did not stop but sped away. The complainant’s vehicle skidded to the right and overturned into a drain. The complainant says he was injured as a result.

The police-investigating officer recalls viewing the scene of the accident and also talking to the drivers of the two vehicles involved and obtaining the details of those two vehicles. He recalls asking the driver of vehicle one to report back but he failed to do so and escaped to Kundiawa. Obviously the policeman could not have interviewed the driver of vehicle two, (the complainant), on the same day as the latter was apparently admitted at the hospital. The policeman does not say now if the driver of vehicle one made any admissions as to being at fault besides providing the details of his vehicle, (vehicle one). The policeman said in his oral evidence that people who may have seen the accident at Avi Market, were not cooperative and did not come forward to give any information. In these circumstances I would not accept this policeman’s account of how the accident occurred as anything but a repetition of what the complainant would have told him later. His evidence in relation to how the accident occurred is simply hearsay. However there is no cause to doubt the policeman’s evidence that he did talk to the driver of vehicle one after the accident and obtained that vehicle’s particulars so I would place credence on his recollections on that aspect. I would also accept that there was a motor vehicle accident involving the two vehicles at Avi Market on the day in question. The policeman recalled going to the scene of the accident on the day and there again is no cause to doubt his story in this respect.

I am therefore satisfied that the two vehicles involved in the accident are properly identified, so are the two respective drivers. I would accept then that these vehicles’ insurance and registration status are as asserted in the face of evidence or causes to the contrary.

There are sufficiently contemporaneous medical reports available. I have alluded to the fact that the evidence of the complainant and the policeman in respect of the complainant’s injury as being clear and credible. I would conclude as a matter of course that the complainant was otherwise injured as alleged in the accident.

I have stated out above in full the complainant’s account of how the accident occurred. As I also said, I can not accept or rely on the policeman’s evidence, which evidence I consider to be hearsay, relative to the cause of the accident.

Having considered both submissions on negligence and the complainant’s evidence on it, I have difficulties in concluding that the driver of vehicle one was exclusively at fault.

The facts bear repeating. The complainant says the vehicle in front put on its signal indicator to pull over to the left. Thinking the vehicle was going to stop, the complainant accelerated to go pass the vehicle. Then suddenly the vehicle in front swang right, almost as if to cut off the complainant’s vehicle. The complainant thinks the driver of vehicle one had wanted to turn into the Baisu Road. The complainant attempted to apply his brakes but it was too late. The front of his vehicle collided into vehicle one on the latter’s right side.

On the facts I can only conclude that the complainant overtook vehicle one whilst the latter was still on the road directly ahead. Vehicle one had not completed pulling over to the left as it may have indicated. Vehicle one was still in motion. The complainant overtook a still moving vehicle, yet he does not say if he himself put on his signal light to indicate his intention not only to the vehicle in front but to the public at large – he was passing through a known market place. He does not say or recall slowing down. The complainant did not wait for vehicle one to complete pulling over. If he had allowed for vehicle one to pull over first, he would no doubt have had a clear passage through on his lane. Yet his own impatience was such that he overtook, most probably not giving clear indications himself.

No one in vehicle one was injured – if there were any injuries, it is not said or clear. How worse or less the impact on vehicle one’s sides were is also not clear. I would think it was minimal. Apparently the application of full throttle and then sudden brakes by the complainant, caused his vehicle to skid and overturn even after colliding into vehicle one.

All motorists are by law required to exercise and display reasonable competence in their manner of driving. They are required to, at all times; drive with due care and attention. This complainant was no different. He still had that duty to discharge, and competently so. The high level of his impatience obviously contributed to the accident. It is for his own safety and that of his passengers that he ought to have been careful to the extent that he did not overly magnify a dangerous situation. Here the dangerous situation would have been created when the driver of vehicle one suddenly swang right. If the complainant had been careful, and patient, he might have just avoided the accident. His duty, and indeed the imperative of all motorists, is to avoid accidents. It does not make any difference whether one is reacting to his own mistakes or the mistakes of other drivers. It is not altogether clear how far apart the two vehicles were whilst in motion, however given the uncertainty here it just could have been that the complainant was also driving too close to vehicle one.

All things considered I should find that the complainant contributed significantly to the accident. I would there fore hold that the complainant was equally at fault in causing the accident, and I apportion negligence between the two drivers at 50/50.

The complainant, 45 to 50 years old, is a former policeman and Provincial member, sustained injuries to his face and leg in the accident. About six months after the accident a Dr. Kubu examined the complainant and noted that the complainant had a dislocated left knee cap and stiffness of the knee joint, such that he had suffered a 60% loss of function of that knee joint.

In 1995, (29th October), another doctor, Dr. McKup, examined the complainant and concluded that the complainant had 40% functional loss in the effective use of his left knee.

The latest medical assessment of the complainant’s knee shows a stiff left knee joint. Dr. Kulunga initially examined him in 1994 and assessed 15% permanent disability in the effective use of that knee. This doctor again examined the complainant on the 26th of August 1999. This time Dr. Kulunga re-assessed the complainant’s knee and noted that it had a permanently severed infra petella tendon which means he now has a 20% permanent disability in the effective use of his left knee.

Of the precedents cited by both counsels, a case more closer to the instant one in terms of the level of injury and locality of injury seems to me to be the case of Nentepa Piam –vs- The State [1988-89] PNGLR 651. In that case the plaintiff, a male subsistence farmer aged about 50 years, had sustained injuries to his teeth, head and right knee. The Court there particularly took into account a medical forecast that the plaintiff would develop and suffer a mild form of progressive post-traumatic arthritis in the right knee, and a 50% permanent disability in the efficient use of the right knee in his daily village life. A sum of K8000.00 and K5000.00 were assessed and awarded for pain, suffering & loss of amenities; and future economic loss respectively.

I am of the view that the appropriate range of awards in these sort of injuries would be around the K6000.00 – K8000.00 mark. Having considered that the left knee area has obvious scarring of tissue and that this case is not as serious as the case of Nentepa Piam –vs- The State (supra), I would allow a sum of K7000.00 for pain, suffering and loss of amenities for this complainant.

No evidence of any economic activity was produced for the purpose of assessing an appropriate amount for such losses. At the time of the accident the complainant was a former policeman turned Provincial Government member of some sort or other. It is not known when he ceased to be a Provincial Government member. Much less nothing is known as to how he earns his living except that he is said to be villager. Given his background the complainant could easily be running a small business, or he could be earning his living as a subsistence farmer. In most other cases were the Courts have had to assess economic loss, in the absence of direct economic loss, the circumstances were that the injured persons’ occupations were known. But these matters are not so clear here. Nonetheless I would proceed to assess an appropriate award for economic loss, as I must, as the Courts have done since Kaka Kopun –vs- The State [1980] PNGLR 557. The pertinent statement of Miles J is at page 562 of that case:

"On the calculation of loss of earning capacity it will often be the case that the court will have very little evidence to work upon where the plaintiff is engaged in gardening or hunting with little participation in the cash economy. In the present case, and others on which I have reserved judgement, there is some evidence of a general nature but in addition to acting on that evidence I think it is appropriate to adopt the approach of Mahoney J in Baird v Roberts [1977] NSWLR 389 at 391) which was approved in Kerr’s case {[1979] PNGLR 251 at 251} namely that once a reduction of economic capacity is established, even if there is no evidence as to pre and past accident possible earnings, a trial judge must in general, assess some compensation in this regard; he can not ignore the loss." (emphasis added)

It is submitted by the defence that the mode and method of assessing economic loss adopted in the case of Takip Kiap –vs- MVIT (Unrep) N1236 is the appropriate one to be followed here. In that case Woods J. was satisfied that the plaintiff therein would have been capable of generating an amount of at least K5.00 per week from garden work. The plaintiff there was in her mid 40’s so the Judge awarded a figure for economic loss at K5.00 per week for 15 years which added to K3160.00. In that case the plaintiff was a village widow who needed to work in the garden to support herself and her children. It is not clear why this Court is being urged to find any merits in the K3000.00 claimed for economic loss in the case before me. In the circumstances I would allow a global sum of K1500.00 for economic loss.

I would generally allow the K405.00 claimed under this head of claim as there does not seem to be any dispute or contention as to those expenses being properly incurred.

For the reasons given I would award a sum of K8905.00 for pain, suffering & loss of amenities, and economic loss together with special damages.

General damages for pain, suffering & loss of amenities:	K7000.00
Economic loss:	K1500.00
Less 50% contributory negligence:	K4250.00
Plus special & out of pocket expenses:	K0405.00
Total =	K4655.00

I order judgement for the complainant in the sum of K4655.00 plus interests at 8% from the date of summons. Costs would follow the event, to be taxed if not agreed.

Papua New Guinea District Court

Maimel v MVIT [2000] PGDC 40; DC419 (14 June 2000)