Tommy v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 26; N1023 (20 December 1991)

Unreported National Court Decisions

N1023

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. 398 OF 1990
DEKO TOMMY
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
18 November 1991
20 December 1991

NEGLIGENCE - Motor Vehicle Accident - Liability - Passenger on vehicle that overturned - vehicle overcrowded.

DAMAGES - personal injuries - fractures to legs - village man - General Damages to include economic loss K25,000.00

Cases Cited

Tambi v The State [1988-89] PNGLR 648

Gokam v The State 1990 N. 826

Counsel

D L O’Connor for Plaintiff

A Kandakasi for Defendant.

20 December 1991

WOODS J: This is a claim for damages for injuries received in a Motor Vehicle Accident which occurred on the 21st May 1989 on the Gumine road out of Kundiawa in thmbu Province.

The Plaintiff was a passenger on a motor vehicle registered No AFM 399M 399 driven by a Wai Pintina which was insured with the Defendant pursuant to the provisions of the Motor Vehicle (Third Party Insurance) Act. It is alleged that the driver lost control of the vehicle whilst he was attempting to bypass a landslide blocking the road and the vehicle went over the edge and the Plaintiff was thrown off the back of the truck and suffered injuries to his legs. The defendant does not dispute that that vehicle had an accident but alleges that the vehicle was overloaded and such overloading contributed to the accident.

The Plaintiff gave evidence that he was at his village when the truck came to collect workers to go and pick coffee. He joined others in getting onto the vehicle and it was apparently a large truck with high sides. Near Kundiawa the road was blocked by a landslide and in attempting to get around the landslide it slipped off the road and rolled down into a creek and he was thrown out, and his legs were broken.

Constable Willie Getorio from the Traffic Section at Kundiawa Police Station was the policeman who attended the accident on Sunday 21st May 1989 and he confirms that the Police Accident Report presented in evidence was the one prepared by him. He confirms that after the accident he had to enquire around to obtain the names of all the passengers injured or on the vehicle and these are the names on the Report Forms.

I have heard another claim for injuries received in this accident and I refer to the case PALGA v M.V.I.T. 1991 No 1003 where I have ruled on liability.

I am satisfied on the evidence that the Plaintiff was on the vehicle in question and was seriously injured in the accident. There is no evidence that the vehicle was seriously overloaded such that the overloading could have affected the handling of the vehicle by the driver. The lawyer for the Trust further submits that the Plaintiff by riding in a vehicle not designed to take passengers was putting himself in danger and therefore must be contributory negligent. However it seems to be fairly common practice for large trucks designed for cargo and goods to be occasionally used for passengers and apart from any overloading aspects which could affect the handling of the vehicle, whilst ever the Police and Insurance Trust countenance such carrying of passengers by not enforcing Traffic regulations then the Court must accept that it is a permissible activity. Therefore I find no contributory negligence in the Plaintiff. The accident and therefore the injuries to the Plaintiff were caused by the negligent driving of the vehicle when the road was effectively blocked by a landslide.

ON DAMAGES

Following the accident the Plaintiff was admitted to the Kundiawa General Hospital on 21st May 1989 with multiple fractures and in a state of shock. The fractures were a simple fracture of the left femur and a compound fracture of the right fibula and tibia. Treatment included a stein pin being inserted in the left knee for skeletal traction. The Plaintiff was immobilised from 25th May to 15th August 1989. Whilst he was discharged from Hospital on the 25th September the Doctor, Dr Seba suggested that the fractures were not completely healed and that he would be debilitated for a further 6 months. Dr Seba reported in October 1990 that he had recovered well from the injuries except for some tenderness in the left thigh and noted that the Plaintiff walked with the aid of crutches. He reported that there was still room for further improvements however there will be some permanent pains and limping gait. Dr Seba then estimated 30% permanent disability in the use of his legs.

Dr Kulunga has also examined the Plaintiff and notes that he had serious multiple fractures of both his legs which have been managed fairly well. He notes a 15% permanent disability to the use of the left leg.

The Plaintiff is basically a village man who was sometime employed as a rural laborer. He can therefore only participate in the economy or in the subsistence village life as a manual laborer. Thus any level of disability to the legs must have a greater margin of overall loss than the mere percentage of disability. The Plaintiff states he is unable to do any of the usual work required of men in the garden and village environment and even feels pain when he walks.

He states he was employed as a laborer with DPI before the accident although that sounds like a casual employment. There is no evidence of any permanent employment. However he has clearly lost any capacity to obtain any employment and to effectively participate fully in the village subsistence economy. I find that his injuries and therefore the damages that should be assessed are almost on the same level as those in the cases of TAMBI v The State [1988-89] PNGLR 648 and GOKAM v The State 1990 N 826. In TAMBI’s case there was an estimate of 35% permanent disability in the effective use of the leg and in GOKAM’s case it was a 45% in the leg.

The Plaintiff is aged about 40 years. Do I estimate a figure for general damages for pain and suffering and loss of amenities plus another figure for economic and village subsistence income loss. Such latter figures are pure conjecture and it is sometimes easier to make a global award where there are no exact figures to work from.

So considering the figure in TAMBI’s case and GOKAM’s case I will make a global award of K25,000 to cover pain and suffering and loss of amenities and loss of opportunity of employment and to inability to fully participate in the village economy.

I allow interest at 8% on K7,000 of the General Damages from the date of the Writ to today.

Damages	K25,000.00
Interest on part	799.34
	25,799.34

I order Judgment for K25,799.34

Lawyer for the Plaintiff: O’Connor & Hp>

Lawyer for the Defendant: Young & Williams