Gokam v The State [1990] PGNC 16; N826 (19 March 1990)

Unreported National Court Decisions

N826

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 446 OF 1986
KULI GOKAM
V
THE STATE

Mount Hagen

Woods J
14-15 February 1990
19 March 1990

NEGLIGENCE - Pedestrian - Different versions - Liability.

DAMAGES - Personal injuries - Leg - Village man.

Cases Cited

Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365.

Nentepa Piam v The State, Unreported judgment N783 (1989).

Anis Wambia v The State [1980] PNGLR 567.

Counsel

P Kopunye, for the plaintiff.

M L Tilto, for the State.

19 March 1990

WOODS J: The plaintiff is suing for damages for injuries he received when he was struck by a motor vehicle owned by the State on the evening of 24 August 1984. The vehicle was being driven by an officom the CIS and the incident happened on the Highlands HighwHighway near Avi market, outside Mount Hagen.

The plaintiff states that he was walking home along the Highway at about 8.30 pm on Friday 24 August 1984 and he noticed a vehicle coming down the hill on the highway and he noticed that it was driving erratically across the road so he kept well off to the side of the highway: However, the vehicle came across to him and struck him and knocked him down and he was partially unconscious. He was taken to the Mt Hagen General Hospital.

A witness for the plaintiff said he was sitting outside his house adjacent to the Highway and he saw the vehicle coming not travelling straight and saw it hit the plaintiff. The vehicle then stalled on the other side of the road and the occupants ran away. He went to closely examine the vehicle and he saw some bottles of beer in the vehicle both full and empty ones. He noticed that the front of the vehicle was bent and the front windscreen cracked.

The driver of the State vehicle states that he was travelling down the highway when a group of men across the highway threw stones at his vehicle and a stone shattered the windscreen such that he could not see where he was going and he ran off the side of the road and stopped the vehicle. He said they heard some people shouting so he and the occupants of the vehicle ran away. He denies any drinking and denies knowing he had hit anybody. No one else from the vehicle gave evidence for the State.

So I am faced with two stories. The plaintiff’s story is supported in various ways by two witnesses. The State relies solely on the driver of the State vehicle. Of course the State’s case or the Court should have had the benefit of a Police Accident Report. Whilst there is a report tendered, it does not really help the Court because no police attended the scene so there is no independent report on the state of the vehicle to support or discredit Wingke Kanjobe’s evidence. This is a critical aspect of the evidence and because the State and the police delayed visiting the scene they are unable to bring any evidence to support their story. Apparently by the next morning the vehicle had been so vandalised that no assumptions can be made on the state of the vehicle immediately after the accident. I find this a gross dereliction of duty by the CIS officers or other State officers concerned in not making sure the vehicle was examined and recovered soon after the accident. This has meant the State is unable to provide any corroboration for its story of the incident or to discredit the plaintiff’s story. In the circumstances therefore I must accept the plaintiff’s story as being the only credible story and thus find that the State is liable in negligence for the injuries to the plaintiff.

The plaintiff was admitted to hospital following the accident with a comminuted fracture of his right tibia and fibula and a partial tear of the lateral collateral ligament of his left knee. Both legs were immobilised in plaster. He remained in hospital for one month. The plaster on his left leg was removed after 3 months and on the right leg after 5 months. At that stage it was estimated that it would be a year before any disability stabilised and he would be left with a permanent disability of his right leg of 10 per cent.

Now over five years after the accident the permanent disability is clearly apparent. The severed knee ligament has proved a great handicap and, of course, it is and will be aggravated by post-traumatic arthritis. The doctor estimates a 45 per cent permanent disability in the use of his left knee. There is a 2 cm shortening of his right leg which results in a 5 per cent permanent disability of his right leg.

The plaintiff is aged between 30 and 35 years, married with a child. He was a subsistence villager and thus would rely on his work in the village and the garden to obtain a living. It is quite clear that from his injuries he is unable to fully perform and participate in the food-producing and income-earning activities required of him which includes the heavy work in preparing new garden land and digging and building houses.

Cases involving damages for leg injuries include Anis Wambia v The State [1980] PNGLR 567 which involved a simple fracture with no permanent disability. Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365, where a more complicated fracture which resulted in a shortening of the leg and 50 per cent permanent disability, was awarded K19,000 general damages. Thomas Tambi v The State N780 Unreported judgment of 30 October 1989, where there was 25 per cent permanent disability to the leg and K15,000 general damages was awarded. Nentepa Piam v The State N783 Unreported judgment (1989) where the plaintiff suffered a 50 per cent different disability in the leg and K8,000 was awarded in general damages.

I find the damages in this case should be similar to those in Caedmon Koieba’s case and Thomas Tambi’s case. I assess general damages for pain and suffering and loss of amenities at K16,000.

On economic loss I will assess a global figure of K2,000 in the absence of specific figures but based on a general concept of K2 a week as it was applied in Thomas Tambi’s case.

I will apportion K12,000 of the general damages for the period to date and allow interest at 8 per cent on that from the date of the writ 28 July 1986 to date of judgment being K3,496. In summary:

K21,496.00

General Damages	K16,000.00
Economic Loss	2,000.00
Interest on Part of General Damages	3,496.00

Judgment for K2100.

Lawyer for the plaintiff: P Kopunye.

Lawyer for the State: State Solicitoicitor.