Gembal v Motor Vehicles Insurance (PNG) Trust [1990] PGNC 76; N828 (19 March 1990)

N828

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 290 OF 1986

ROBERT GEMBAL

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen: Woods J
13 February 1990; 19 March 1990

NEGLIGENCE - Motor vehicle accident - Liability - Riding in unregistered and uninsured vehicle - Contributory negligence.

DAMAGES - Personal injuries - Arm.

Cases Cited
George Pep v Bakri Yamba & The State (1987) Unreported judgment N 619.
Kokonas Kandapak v The State [1980] PNGLR 573.
Peter Kuriti v The State (1989) Unreported judgment N 722.

Counsel
D L O’Connor, for the plaintiff.
M Maladina, for the Trust.

19 March 1990

WOODS J: The plaintiff is claiming damages for injuries he received when a motor vehicle he was riding in on 5 November 1982 overturned. The motor vehicle was unregistered and uninsured at the time of the accident. This claim is brought against the Trust by virtue of s 54(1)(b) of the Motor Vehicle (Third Party Insurance) Act (Ch No 295).

The Trust is denying liability.

The plaintiff states that late in the afternoon of 5 November 1982 he was a passenger in a motor vehicle registered No ABX 452 driven by RUMINTS KOLOP travelling from Mendi to Mount Hagen when the driver lost control when the brakes failed to work and the vehicle overturned. The plaintiff states his arm was broken in the accident. He was taken to Mount Hagen Hospital. He states he was only treated in the Outpatients’ Section and went home and then the next day his arm was immobilised in plaster. He said he had the plaster on for 2 months. He states that after the plaster came off his arm was deformed and he has difficulty in lifting heavy loads and doing rotary movements.

It is quite clear the arm is slightly misshapen and the medical report refers to the arm being angulated anteriorly. The doctor in his most recent and detailed report states that it appeared to be a reasonably aligned double fracture which has united into a seriously mal-aligned and deformed fracture. He is unable to say whether this was due to poor immobilisation of the fracture or to subsequent refracture.

Medical reports at the time of the accident and when the plaster was put on are very brief and give no explanation as to how the mal-alignment occurred. The doctor at the time merely reports that an X-ray showed fractures involving both radius and ulna in the right arm and that his arm was placed in a plaster cast. There is no medical report of what the situation was when the cast was removed, merely some months later that the fracture had healed in a poor position.

While questions are raised as to whether the mal-alignment was the result of lack of care by the plaintiff or lack of care by the hospital, there is insufficient evidence to help either way. There is no evidence of careless or unreasonable conduct by the plaintiff in the care of his broken arm.

The defendant has submitted that the plaintiff is guilty of contributory negligence by riding in a vehicle that he knew was unregistered and uninsured. The defendant is assumed to have knowledge that if it was unregistered it was because it may have been unsafe. Therefore it is submitted that the plaintiff deliberately took a risk with full knowledge and therefore cannot blame anyone else if the vehicle crashes through a mechanical defect. In cross- examination the plaintiff admitted he knew that the vehicle was unregistered; further he volunteered the information that the former owner of the vehicle did not register the vehicle and sold it to Rumints, being the driver and owner of the vehicle at the time of the accident. Further still, the plaintiff states he did not have any other way of coming to Mt Hagen. This quite clearly means he was prepared to take the risk to travel in an unregistered vehicle because this was the only way he could get a lift from Mendi to Mt Hagen and anyway the lift was offered to him by someone he knew from his own line.

The plaintiff clearly knew about vehicle registration and I find I am entitled to infer that he truly must have known the risks of riding in a vehicle that was so unregistered and uninsured. They seemed to realise there was a problem as no attempt was made to report the accident to the police.

In this case I find that the plaintiff and driver are examples of some people who seem to take a casual attitude to the use and operation of motor vehicles on the road in spite of knowing what the requirements are. Therefore, when such an incident happens as has happened here, I find that the plaintiff has voluntarily assumed a risk with full knowledge and therefore is partly liable for the result to himself. I assess his liability at 50 per cent contributory negligence.

ON DAMAGES

The plaintiff had a fractured arm which healed in a poor position. As the doctor states - a visibly deformed forearm with substantial restriction of rotary movement of the forearm. The doctor states he cannot accept the extent of the claimed weakness of the hand as there is no evidence of neurological deficit, no wasting of the muscles of the hand and the calluses indicated active use of his hand. He assessed him to have 50 per cent permanent loss of effective function of his forearm. When I saw the plaintiff in Court I was surprised at the fact that the injured arm showed no sign of wastage but rather was quite healthy and muscular looking although deformed.

The plaintiff is a young villager who will obviously need to be able to do normal work in the village. Unfortunately there are no clear figures to help with assessing any economic loss caused by any limitation on performing his share of work in his village community. I will therefore have to assess a global amount to cover economic loss and I will include such in the amount assessed for general damages.

In Kokonas Kandapak v The State [1980] PNGLR 573, K10,000 was awarded for general damages for a serious fracture which resulted in clear deformity. In George Pep v Bakri Yamba & The State (1987) Unreported judgment N619, a sum of K15,000 was awarded in general damages for a broken arm which did not heal properly and where the movement was severely restricted and the hand was moderately wasted. It is clear from comparing the evidence in George Pep’s case and with the evidence before me now that George Pep’s case was more serious.

In Peter Kuriti v The State (1989) Unreported judgment N722, the plaintiff had his arm savaged by a police dog and suffered severe lacerations and minor disfiguration and scar, and ended up with a motor and sensory deficiency. General damages were assessed at K9,000.

This case before me now is similar to Peter Kuriti’s case and not as serious as Kokonas Kandapak’s case, although the latter was decided some ten years ago.
I therefore assess an amount of K10,000 for general damages to cover pain and suffering and loss of amenities and minor inability to fully participate in the village economic scene. I apportion K4,000 of that up to date and assess interest at 8 per cent on that from the date of the writ to today.

Damages	K10,000
Interest	1,220
	11,220
Less 50% contributory negligence	5,610
Judgment	K5,610

Lawyer for plaintiff: D L O’Connor.
Lawyer for defendant: Young & Williams.