Ipeipe v Ute [2011] PGDC 14; DC1060 (21 February 2011)

DC1060

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL (GRADE FIVE) JURISDICTION]
GFCi 102 of 2010

BETWEEN

LOTOKUME IPEIPE
Complainant

AND

SEFE UTE
Defendant

Goroka: G.Madu

2010: November 22 December 21 22
2011: January 14 February 21

CIVIL LAW – Claim damages – Negligence – Driving under influence of
liquor – went off the bridge – landed on side of river –
sustained injuries – functional loss – no vicarious liability –
damages awarded.

Cases Cited :

Nali Matiabe –v- Independent State of Papua New Guinea [1988] PNGLR 309
Sepa Lanlao –v- Independent State of Papua New Guinea [1988] PNGLR 279
Kosi Bongn –v- Independent State of Papua New Guinea [1987] PNGLR 478
Koko Kopele –v- MVIT [1983] PNGLR 223

References :

Counsel
Lotokume Ipeipe, In Person for the Complainant
Sefe Ute, for the Defendant
21 February 2011.

REASONS FOR DECISION

G Madu,PM . : The complainant claims damages in the sum of K10,000.00 for injuries she suffered as a result of a motor vehicle accident.

FACTS

1. The brief facts are that on the evening of 26th June 2008 between 7.00pm and 8.00pm at Bena Bridge, the defendant was driving from Goroka in Lae direction, when he collided into the Bena Bridge and went off the bridge and falling to the side of the river causing injuries to the complainant.

The complainant claims that the defendant was under the influence of liquor when he drove the vehicle. The vehicle at the time of the accident was unregistered and uninsured. The complainant further stated that she cannot claim against the Motor Vehicle Insurance Limited because the defendant’s vehicle was not insured. The complainant claims that the defendant being the owner of the vehicle is vicariously liable for the injuries he received.

FACTS DISPUTED

The defendant in his reply to the particulars of claim said that he refused the complainant to get on his vehicle but she got on without his permission.

The defendant admitted taking some beer about five (5) bottles but these bottles could not have made him so drunk.

The defendant admitted that the complainant sustained injuries however disputed that there is no medical report to verify the injuries.

The defendant stated that he paid K860.00 to the complainant because she is his aunt and family members were concern about her wellbeing and agreement was reached for the defendant to open an account under the complainant’s name and the defendant to deposit K150.00 every fortnight until K3,000.00 is paid and failed to honour the agreement.

ISSUES:

There are four (4) issues and these are:

(i) Whether or not the defendant was negligent in his driving?

(ii) Whether complainant sustained injuries?

(iii) What quantum of damages can be awarded?

(iv) Whether or not the defendant is vicariously liable for his action.

EVIDENCE ADDUCED BY COMPLAINANT

Complainant submitted three (3) affidavits deposed by Lotokume Ipeipe, Junet Danny and Danny Kennea.

Lotokume Ipeipe in her affidavit stated that the defendant sent words for complainant to accompany him to his wife’s village for a feast for one of his father- in- law’s. Whilst at that feast the defendant drank some beers and then took the complainant and others home. Instead of going back home the defendant drove the vehicle to Bena Bena Secondary School. When approaching Bena Bridge the defendant drove off the bridge and landed beside the river where complainant sustained injury. The defendant paid “Bel Kol” money of K860.00. Because the defendant failed to register and insure the vehicle, the Motor Vehicle Insurance Company refused to pay compensation under Third Party Insurance (Basic Protections) Act. This action is taken against the defendant to pay damages.

Junet Danny stated that on 25th June 2008, whilst in the house defendant’s father Gorohave Utte relayed the message to the complainant to come and see the defendant as he was organising a feast for his father-in–law but defendant had left so she followed the defendant.. Because the defendant request the complainant to go to the feast therefore it was proper that the defendant gives lift to the complainant. This witness testified that it was at the request of the defendant that the complainant went after him and as a result had accident.

The complainant’s third witness Danny Kennea stated in his evidence that the complainant sustained injuries from the motor vehicle accident driven by the defendant and K860.00 Bel Kol money was paid to the complainant whilst compensation issue was pending the medical report. The complainant tried to claim through the Motor Vehicle Insurance (PNG) Trust but she could not because the vehicle was not insured. There was a discussions held between the Complainant and the defendant and their families and the agreement was reached for the defendant to open an account with BSP under complainant’s name and amount of K150.00 to be deposited every fort night until the amount of K3,000.00 is reached as total payment of compensation. The defendant failed to honour the agreement and as a result the complainant has taken this action.

EVIDENCE ADDUCED BY THE DEFENDANT

The defendant filed seven (7) affidavits deposed by the following witnesses : Sefe Utte, Maria Utte, Gorohave Utte, Murphy Afox, Heni Sigai, Seke and Josh Lusiloe.

The defendant admitted that the complainant was a passenger in a vehicle but got onto the vehicle on her own choice although she was refused by the driver. The accident occurred on 26thJune 2008. The complainant states that the injuries were sustained on impact and therefore was an accident only. There was no intention to harm another person and this was only an accident

The defendant testified that vehicle was purchased from the previous owner and was still in the workshop and had gone to use it to prepare foodstuffs to celebrate his birthday. Because it was in the workshop he did not check the registration and insurance

The defendant admits that there were some discussions held and agreement was reached for the defendant to pay K150.00 each fort night until K3,000.00 is reached but this payment did not take place because he had a loan which was not yet paid and as a result this proceedings were commenced.

The other witnesses testimony basically supports the defendants evidence that there was a refusal by the defendant to allow the complainant to get on his vehicle. The vehicle was in the workshop when it was used and could not do a check of the registration and insurance and that there was an agreement made for defendant to open an account with BSP and pay K150.00 every fort night which would raise K3.000.00 compensation.

Issue No.1 – Whether the defendant was negligent in his driving?

Complainant in her evidence said that the defendant before driving took some beer around five(5) beer before he drove out.. I instead of driving home the driver drove to Bena Bena Bridge. The defendant being drunk approached the bridge and then ran off the bridge and landed on the side of the river and sustained injuries.

The defendant argued that with him drinking five bottles of beer would not have made him drunk however he has failed to explained what caused him to go off the bridge. There is no evidence to show that the defendant was charged criminally under the Motor Traffic Act. This could have clearly established the defendant’s negligence in his driving. However the standard of proving this case is on the balance of probability. The fact that the vehicle went off the bridge landing on the side implies that the defendant may not have been concentrating in his driving when he got involved in the accident. Since there is no explanation what caused the defendant to ran off the bridge, I conclude that it is probable that the defendant drove in a negligent manner and caused the accident.

Issue No.2 – Whether complainant suffered injuries.

Complainant in her evidence said she suffered injuries to her body however she was not specific about which part of the body was injured. The defendant admitted that the complainant did sustained injuries but also was not specific.

The medical report which the complainant filed and marked as annexure “A” was compiled by both Dr. Eri Ebose and Dr. Kapiro Kendaura. The report stated that Lotukume Ipeipe was involved in a Motor Vehicle Accident on 26.06.08 at Bena Bridge. She sustained closed communited fracture of the distal 1/3 femur with dislocation and was admitted to the Surgical Ward(2) for MUA, and skin traction was applied on 27.06.08.

The skeletal traction was then followed by open reduction and internal fixation with plates and screws. Patient was also covered with antibiotics and analgesics while in the ward.

Assessment of the injuries revealed that the patient sustained fractured femur with some functional loss and unable to support herself and her family and was awarded 65% of functional loss.

I consider that the medical report tendered by the complainant is a genuine and reliable evidence to show to the court that the complainant suffered injuries as a result of the Motor Vehicle Accident. I conclude that the complainant suffered injuries.

Issue No.3 – What quantum of damages can be awarded?

The complainant is claiming damages for K10,000.00. She has not specifically pleaded the type of damages she is seeking however I am off the view that she is claiming general damages.

I am mindful of the fact that where physical injuries from assaults or accidents is suffered, the victim goes through lot of pain and suffering, loss of blood and loss of amenities and economic loss.

In assessing damages for this case the following cases are used as a guide. In case of Koko Kopele –v- MVIT [1983] PNGLR 223 action taken for fractured femur with permanent loss of mobility, a male outdoor labourer 37 years, discomfort rate of 5% awarded general damages of K12,000.00. In Kosi Bongn –v- Independent State of Papua New Guinea [1987] PNGLR 478 action was taken for arm injury comminuted fracture of right elbow for loss of effective use of hand labour, male removalist in late forties awarded K7,500.00 general damages and K4,851.00 future economic loss. In Sapa Lanolao –v- Independent State of Papua New Guinea [1988] PNGLR 279 action was taken for head injury resulted in few days unconscious and continuing difficulties with walking long distances and keeping balance. Male person is mid fifties awarded K9,000.00. Finally in Nali Matiabe –v- Independent State of Papua New Guinea [1988] PNGLR 309 action was taken for shoulder injury resulting in a fractured collar bone mal union with losing 5% requiring removal. Loss of 15% effective use of left arm, a market gardener of 40years and was awarded K10,000.00 general damages.

In the present case the complainant sustained fractured femur with some functional loss and unable to support herself and her family and is awarded general damages. In Koko Kopele’s case the injuries were similar but the loss was permanent whilst in the instant case the injuries caused some functional loss. I also consider that the defendant has paid “Bel Kol” money in the sum of K860.00 and therefore should be deducted from the total amount awarded for damages.

Issue No.4 - Whether or not the defendant is vicariously liable
The complainant claims that the defendant was a driver at the time the vehicle had the accident and therefore is vicariously liable. Vicarious liability is only limited to servant’s employment. The master is always liable if he specifically authorises or ratifies his servant’s torts. A master is vicariously liable only for torts committed by his servant in the course of his employment.

In the instant case, the defendant was the driver and the owner of the vehicle involved in the accident. In this case the defendant fails to pass the control test because he was not under the control of any one person as he was a boss himself and exercised his authority on what to do and how to do it. For the reasons alluded above the defendant is not vicariously liable.

In conclusion I find defendant liable and is ordered to pay general damages in the sum of K6,000.00 plus cost and interest to the complainant less the amount paid a “Bel Kol”.

Orders Accordingly

___________________________________
Lawyer for the Complainant Lotokume Ipeipe in Person
Lawyer for the Defendant Sefe Ute In Person