Kuntu v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 60; [1991] PNGLR 440; N996 (19 August 1991)

N996

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WIE KUNTU

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

25-26 July 1991
19 August 1991

DAMAGES - Personal injuries - Particular awards of general damages - Injury to spine and wrist - Fracture of vertebra - Simple fracture of wrist requiring pinning - Loss of 5 per cent efficient use of wrist - Continuing disability and pain in back - Permanent disability of 40 per cent - Village man (aged about twenty-five years) - Reduced ability for subsistence living - Award of K18,000 general damages - Award of K8,000 for future economic loss.

The plaintiff, a village man aged about twenty-five years claimed damages for personal injuries arising out of a motor vehicle accident as a result of which he suffered a fracture of a vertebra of the spine which was treated with bed rest but which left the plaintiff with continuing disabilities, including continuing pain and a permanent disability of 40 per cent which will restrict his full participation in rural village life. The plaintiff also suffered a fracture of the right wrist which required pinning and which healed with a permanent disability of 5 per cent.

Held

General damages for pain and suffering and loss of amenities should be assessed at K18,000 and damages for economic loss at K8,000.

Cases Cited

Kuli Gokam v The State (N826, 19 March 1990, unreported).
Kama Pupti v Kudjip [1986] PNGLR 283.

Statement of Claim

This was the hearing of an action in which the plaintiff claimed damages for personal injuries suffered in a motor vehicle accident.

Counsel

P Kopunye, for the plaintiff.
A Kandakasi, for the defendant.
Cur adv vult

19 August 1991

WOODS J: The plaintiff is claiming damages for personal injuries he received when he was involved in a motor vehicle accident which occurred on 17 May 1988 on the Highlands Highway between Minj and Kudjip. He states he was riding on the back of a Toyota Hilux Utility registered ANC 185 owned and driven by Kemuga Nigints when the driver stalled on a slight hill and rolled back whereupon because everyone in the back of the vehicle stood up he was thrown off the back and the vehicle ran over him and caused injuries to his arm and back.

There is no dispute that the plaintiff was on the vehicle and that it was over-crowded and that when the vehicle stalled it rolled back and the plaintiff fell out and the vehicle rolled onto him. The plaintiff is claiming that the driver and owner of the vehicle was negligent and should incur most of the liability for his injuries. The defendant is alleging substantial contributory negligence in the plaintiff. So, on liability, it is a question of how much liability should each party bear.

There is no dispute that the vehicle was over-crowded. There may have been up to twenty people on the back of a vehicle which under the motor traffic law should only carry eight people. They were so crowded that the plaintiff was sitting in the middle of the back on other people’s legs. So who is responsible for the over-crowding. It was apparently election campaign time so a lot of people were being carried around. I find that in the circumstances the over-crowding was a common cause between the driver and the people on the vehicle so each must bear some responsibility for anything that happened because of the over-crowding.

The plaintiff still says that the accident happened because of the negligent driving of the vehicle. However was it negligent driving? It only appeared to be carelessness in allowing the vehicle to stall up a slight hill; the driver was using the wrong gear for the load he was carrying; in normal circumstances it may not have mattered. However having stalled still there was no danger initially, the car only rolled back a little, it did not run off the road or anything like that. Nothing should have gone wrong. However when it stalled the people crowded on the back of the vehicle all stood up in unnecessary alarm and because the plaintiff was sitting on their legs he was thrown off and fell off the vehicle and when the vehicle rolled back it rolled on him. I am not satisfied on the evidence that he jumped off. However the reason he fell off was because of the actions of the people on the back not directly because of any negligent driving.

The accident happened or the plaintiff fell off and was injured because of the over-crowding of the vehicle and as this was a common cause between the plaintiff and the driver both parties must assume responsibility and I apportion the responsibility equally between the two. Thus the plaintiff and the defendant must share the liability equally.

ON DAMAGES

The plaintiff is a young village man around twenty-five years of age. He received a simple fracture of the wrist of his right arm and a compressed fracture of a vertebra and general abrasions. The reduction of the right arm required a pin and whilst this has healed well he will have some permanent disability and weakness in the right wrist joint estimated at 5 per cent. The fracture of the vertebra is more serious and has and will result in continual pain and disability.

The doctor notes there is a clear deformity which will get worse in time. The doctor estimates a 40 per cent disability in the effective use of his spine.

Being a village man the plaintiff must be physically fit to properly assume his role in the subsistence and cash crop economy. However it is clear that because of his injuries he will be unable to do his fair share and will continue to be more and more a burden on his line as he gets older.

This man is in a similar situation to the plaintiff in Kuli Gokam v The State (N826, 19 March 1990, unreported) and in Kama Pupti v Kudjip [1986] PNGLR 283 and in Make Kewe [1986] PNGLR 279. Although perhaps not as serious as in the latter two cases. I would assess an amount of K18,000 in general damages.

For economic loss there is no wage to work from so it is necessary to consider a figure for a village subsistence economy. If I capitalise a figure of K10 per week being only partially disabled for thirty years and allow for contingencies I come to a figure in the region of K8,000. Alternatively I could assess a global amount on the basis of partial disability and I would come to a similar figure. I therefore assess K8,000 for future economic loss. There is no direct evidence of past economic loss however I will again come to a round figure based on the fact that he has obviously been unable to involve himself fully in the village subsistence economy since the accident. I assess a figure of K1,000 for the three years since the accident.

To summarise:

General damages K18,000.00
Past economic loss K 1,000.00
Future economic loss K 8,000.00
Interest at 4 per cent on part of general damages K 409.42
Interest at 4 per cent on past economic loss K 130.30
K27,539.72

Less 50 per cent contributory K13,769.86

K13,769.86
Less customary compensation K 500.00
K13,269.86

I order judgment for K13,269.86.

Judgment for plaintiff

____________________

Lawyers for the plaintiff: Kopunye Lawyers.
Lawyers for the defendant: Young & Williams.