Kanzie v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 2; N1030 (3 February 1992)

Unreported National Court Decisions

N1030

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 892 OF 1990
KULNO KANZIE
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
19-20 December 1991
23 December 1991
3 February 1992

NEGLIGENCE - Motor vehicle accident - Liability - Plaintiff on back of open-back utility - Nature of injury - Amputation of finger because of intervening infection.

Counsel:

P Kopunye, for the plaintiff.

A Kandakasi, for the defendant.

3 February 1992

WOODS J: This claim for damages fors for injuries received in a motor vehicle accident which occurred on 16 September 1987 near Nondugl when a Mazda utility vehicle Registration No ALA083, driven by Tony Sburst a tyre and overturnedurned and the plaintiff was thrown out. The vehicle was registered in the name of Nondugl Tumbo and was registered with the Motor Vehicles Insurance Trust.

The plaintiff says that he was a passenger on the back of the utility and as the vehicle came down a hill, a tyre burst and the driver was negligent in handling the vehicle and it overturned and the middle finger of his left hand was smashed. At the time, the plaintiff thought that the injury was only minor so he went home. However, later it got more painful and he had to go to the hospital for treatment and because of the infection, it had to be amputated.

A witness, Yuanas Dulna, says that he was on the vehicle with the plaintiff and others when the incident happened. However, his version of the accident is that after the tyre burst the vehicle bumped to the side of the road and they were all bumped around on the back and some fell on to the road and injured themselves. He does not say whether the plaintiff was merely bumped around in the vehicle or whether he was thrown out of the vehicle.

A witness, Kome Alne, says he was sitting in the front of the vehicle when the tyre burst and he says that the vehicle overturned. He says that the plaintiff was on the back of the vehicle at the time and his injury was a cut finger.

The defendant brought a witness, Noah Paulus, who says that the plaintiff is not named Kulno Kanzie but is named another name, thus implying that the person, Kulno Kanzie, named in the road accident report, is not the plaintiff.

However, another defence witness, Kambui Mugul, contradicts this identification of the plaintiff and confirms that the plaintiff is named Kulno Kanzie.

The police road accident report confirms an incident with the subject vehicle and confirms the identification and registration and insurance details of the vehicle. It is not clear whether the police officer actually saw the vehicle on site after the incident or whether he was going on what he was told. His interpretation of the accident is that a tyre burst and the vehicle slipped sideways and the passengers bumped onto the side walls of the back tray.

So is this negligent driving for which the driver and therefore the Trust should be liable for any injuries to the passengers in the back? A burst tyre of itself may not be negligent driving unless there were aggravating features in the manner of the driving whereby the driver was unable to control the vehicle in a safe manner after the tyre burst. Here there is some confusion as to whether the vehicle did overturn or only slid into the side of the road. The plaintiff has not sufficiently described the accident for me to be sure whether the vehicle did really overturn. The police officer saw no overturned vehicle when he examined the scene. Normally if a passenger was seated properly in a vehicle on a proper seat with a seat-belt and a tyre burst and the vehicle merely went off the road, there would be no damage. However, the passengers were sitting on the floor of the back tray of a vehicle not designed and therefore not registered to carry passengers in the back in that manner. Passengers must assume the responsibility for the manner of their riding in the back in such an unsafe way. With the confusion as to what actually happened to the vehicle, some say the vehicle overturned, some say it just skidded to the side of the road, how did the plaintiff smash his finger, he gives no description of actually how his finger was injured, was it crushed by the overturning vehicle? If he was hanging on to the side and the side crushed it, how come it did not crush other fingers? Then there is no medical report of any treatment being received immediately after the accident, which report would help to corroborate his involvement in the accident that day. Of course, his explanation to that is that he did not think it was serious as it appeared to be only cut so he went home for a week before he went to the hospital because the cut became worse and in the end because of infection, it had to be amputated. This, however, clearly suggests that the amputation was not caused by the accident but by the failure to properly treat the cut after the accident. An injured person has an obligation to mitigate his damages by taking appropriate procedures and precautions if he is injured, in particular by seeking proper treatment for any injuries and a negligent party cannot be liable for any damage consequential upon the failure of the plaintiff to act reasonably.

Overall, with this claim I am firstly not satisfied there was any negligence in the driver for which he should be liable to passengers unsafely seated in the back, and to go further, I would not be satisfied with how the finger was injured in the incident, as the amputation was not as a result of the effect of the accident insofar as it may have caused any injury to the finger, but because of the failure of the plaintiff to seek the proper treatment or take the appropriate care of the cut.

I therefore dismiss the claim.

Lawyer for the plaintiff: Kopunye Lawyers.

Lawyer for the defendant: Young & Williams.