Kunton v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 21; N997 (19 August 1991)

Unreported National Court Decisions

N997

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 375 OF 1990
PUT KUNTON
V
M.V.I.T.

Mount Hagen

Woods J
4 June 1991
22 July 1991
19 August 1991

NEGLIGENCE - Pedestrian - Liability

DAMAGES - Personal Injuries - Arm and Pelvis - Village Woman - Global Award of K15,000 for General Damages and Economic Loss.

Cases Cited:

Nali Matabe [1988] PNGLR 309

Caswell [1987] PNGLR 458

Kama Pupti [1986] PNGLR 283

Kunjil On [1986] PNGLR 286

Counsel:

P. Kunai for the Plaintiff

A. Kandakasi for the Defendant.

19 August 1991

WOODS J: The Plai is suing for dama damages for injuries she received when she was struck by a motor vehicle on the afternoon of 28th April 1989. The motor vehicle was registered No AEZ 247 and was insured wit Defendant.

The Plai Plaintiff states that she was walking home along the Highlands Highway between Mount Hagen and Kagamuga when she was struck by the vehicle and thrown to the ground. She denies she was actually walking on the bitumen but was walking along the gravel sides. She also denies she was trying to cross the road but was on the ground off the ‘coal tar’. Her evidence is supported by Agnes Kumta who was with her at the side of the road.

The Investigating Officer who attended the scene shortly after, on the basis of his perusal of the scene and what he was told places the point of impact at just at the edge of the coal tar. It is suggested that the offending vehicle may have been following closely behind another vehicle and may not have seen the victim until too late. However on everything put to the court it suggests that the Plaintiff was not in any way placing herself in the way of the traffic although she may have been just on the edge of the coal tar.

It is a fact of life that Highways are just as much used by pedestrians as by motor traffic however there is an obligation on all users whether motor traffic or pedestrians to use the highways and roads with due care. So pedestrians have to be just as careful as drivers o motor vehicles.

In this case whilst there is no evidence of reckless driving by the driver the fact that he struck a pedestrian at the side of the road clearly implies some negligence. However as there is no evidence of careless or reckless swerving it suggests that the plaintiff may not have been acting as carefully as she should have so I will find some contributory negligence in the Plaintiff I apportion liability at 20% to the plaintiff and 8% to the motor vehicle.

DAMAGES

The Plaintiff sustained a fracture to the right radius and a fracture of the pubic ramus of the pelvis and some scalp lacerations. The arm injury required the inserting of a pin and the result has been some atrophy of the right hand. This has been estimated to result in a 15% loss of efficient function. The pelvis fracture sealed well however she is likely to get osteoarthritis and this will lead to about 10% loss of efficient function of the pelvis due to chronic pain in the back.

The Plaintiff does not know her age but one has to estimate she may be in her mid thirties. She is a villager and therefore much of her life would be having to do subsistence gardening. Whilst there would be no direct economic loss it is clear that her injuries will affect her ability to do her share of work in the village subsistence economy.

In Wali Matabe [1988] PNGLR 309 the plaintiff a village man was awarded K10,000 general damages for 15 loss of efficient use of his left arm.

In Caswell [1987] PNGLR 458 an accountant was awarded K22,000 general damages for leg and back injuries which included crushed fractures of the vertebrae.

In Kama Pupti [1986] PNGLR 283 a village woman in her mid thirties was awarded K20,000 general damages for partial disability back and arm injuries which left quite restricted movement of her arm.

In Kunjil On [1986] PNGLR 286 a 55 year old village man was awarded K18,000 general damages for the back, hip and leg injuries which left him partially disabled.

I find that the plaintiff here is in a similar range as Kama Pupti and Kunjil On but her injuries are not quite as serious. So allowing or that plus including something for the difficulty she will have in fully doing her share of subsistence work to support herself, find a Global award of K15,000 to cover general Damages and Economic Loss.

I allow interest K5000 of that a 4% from the date of the writ being 28th May 1990 to today being K245.00

K15,245.00

Damages	K15,000.00
Interest	245.00
Less 20% Contributory Negligence	K3,049.00
	K12,196.00

I order judgment for K12,196.00

Lawyer for the Piff: J. Mek Teine

Lawyer for the Defendant: Young &ang & Williams