Paraka v Motor Vehicle Insurance Trust [1992] PGNC 11; N1041 (4 March 1992)

Unreported National Court Decisions

N1041

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 1002 OF 1990
RANGEND PARAKA
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
3 February 1992
4 March 1992

NEGLIGENCE - personal injuries - motor vehicle accident - liability - a higher standard of driving expected on a PMV driver

DAMAGES - disability to leg - village woman - confusion between injuries as reported at time of accident and as assessed 5 years later.

Counsel:

D L O’Connor, for the Plaintiff

K Yalo, for the Defendant

4 March 1992

WOODS J: The Plaintiff a ed woman oman of about 40 years of age is claiming damages for personal injuries she received on the 11 May 1985 when the vehicle she was riding on went out of control and skidded off the road and overturned. The vehicle was a PMV registered No P7958 driven by Korua Penden.

The Plaintiff’s evidence is that she was riding on the said PMV and the road was slippery and the PMV skidded off the road and she was injured. She said she became unconscious so could not recall exact details of how she was injured. She said she was in Mt Hagen Hospital for 1 and a half months with injuries to her right hip and legs. She says she has difficulties with her legs and is unable to work in the garden or walk long distances.

The driver of the vehicle Korua Penden confirms having the accident when he was going down a steep hill and the road was slippery and the back of the PMV skidded off the road and turned over. He cannot recall all the people who were on the vehicle but he mentioned four people who were injured including the Plaintiff. Another witness Tiki Tave says he was also injured in the same accident and he confirms the Plaintiff was also injured in the accident and because of the injuries to her legs other people had to carry her to the road.

The Police Accident Report was tendered. It confirms the details of the registration and insurance of the vehicle. However it does not include the Plaintiff’s name on the list of persons injured. The police report also says as to what caused the accident that the mixture of earth and gravel was just graded and the road surface was so slippery that the driver drove up a steep hill and the vehicle stuck and as the driver accelerated the back tyre skidded to the side and the car went off the road.

The first question to consider is was the Plaintiff on the vehicle and injured in the accident. Whilst the police accident report is usually the authoritative record of who was injured in the accident it has become quite obvious that police are not always as thorough as they should be in investigating accidents. They often do not attend scenes at all and often complete reports sometime later from information given to them. In this case there is no evidence of the police actually attending the scene until sometime afterwards so it wasn’t soon enough to get all the names for injured persons were taken to the hospital. So is there any other evidence to corroborate the Plaintiff’s story that she was in the accident which will tend to overcome the ommission of her name in the report. I am satisfied there is. There is a fellow passenger who confirms she was injured and carried up and taken to the hospital. There is an admission chart and report for her admission to the Kotna Health Centre on the day of the accident. Whilst the admission chart seems to have a time of 7am a further report includes her with persons admitted from that PMV accident.

I note her failure to specifically refer to the vehicle overturning however the driver and the other witnesses confirm how the accident happened and her confusion could have been because her unsophistication and the fact that she was knocked around and possibly knocked unconscious in the accident therefore was unable to remember the exact details.

Next question is, is there sufficient evidence of negligence to support a claim. This was a Public Motor Vehicle and not just a private motor vehicle so we have a driver who is suppose to be tested at a higher standard than the average driver. PMV drivers must be expected to be very careful drivers as they are responsible for the safety of members of the public who have paid them to drive them. So the court can expect a PMV driver to always ensure he is approaching any difficult section of the road more carefully and in the correct gear for steep or wet roads which are fairly normal in this part of the country. In this case we are talking about a civil standard of care not a criminal standard of negligence. In the circumstance I am satisfied that the driver in failing to drive and handle the PMV properly in the conditions was falling below the standard of care required and expected of a public motor vehicle driver. I find the driver guilty of negligence and therefore he and therefore the Trust is liable in damages for the injuries suffered by any passengers in the accident.

ON DAMAGES.

The Plaintiff was thrown around when the vehicle overturned. The medical evidence from Kotna Health Centre refers to pain in the left buttocks and left knee. However she is now complaining of a weakness with her right hip and right knee and I refer to the medical report of Dr Kulunga and Dr Piggot. Dr Kulunga makes no reference to any long term disability with the left knee. Dr Piggot notes she is suffering from Osteoarthritis of both knees the cause of which he cannot be certain of as there is no history of injury to her left knee. She having told him of injuries to her right knee. I note that these medical reports were made in 1990 and the claim itself was only filed in 1990, five years after the accident.

Whilst I accept some problem with the literacy of village people I am not satisfied that all the injuries or disabilities as referred to in the report of Dr Kulunga and Dr Piggot can be traced to the accident in 1985. There is insufficient corroboration with the initial report from the Kotna Health Centre plus a great deal of confusion between which leg was injured. Dr Piggot notes the general Osteoarthritis with an enlarged liver and spleen which could be the result of Malaria and could contribute to her general malaise.

I am left with the possibility that being knocked around in the accident in 1985 may have helped with some of the arthritis in the left knee noted by Dr Piggot. I regard that however as a very nominal injury for which a nominal award could be awarded. I am not satisfied that the complete disability referred to in the Doctors reports can be traced to the accident.

I therefore make a nominal global award of K1500 for the injuries she received in the accident. I allow interest on that amount from the date of issue of the writ being K165.70.

I order judgment for K1,665.70

Lawyer for the Plaintiff: O’Connor & Hasu.

Lawyer for the Defendant: Young & Williams.