Wally v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 3; N1029 (3 February 1992)

Unreported National Court Decisions

N1029

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 888 OF 1990
KAY WALLY
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
17-19 December 1991
3 February 1992

NEGLIGENCE - Personal Injuries - Motor Vehicle Accident - Liability - riding on back of a truck.

DAMAGES - disability to legs - Plantation worker.

Facts

Plaintiff claims general damages for personal injuries sustained when the vehicle on which he was riding ran off the road into a ditch. The vehicle was a truck used for transport of coffee pickers and was owned by Rui Plantation, plaintiff's employer. Plaintiff alleges that the driver lost control of the vehicle causing it to run off the road into a drainage ditch. Plaintiff claims that he has been forced to seek ongoing treatment for injuries to his leg resulting from the accident when he was bounced around on spare tyre he was sitting on in the back of the truck. At the time of the accident, plaintiff was employed as a boss boy on Rui Plantation but has been forced to give up his job and return to his village since the accident. Plaintiff claims negligence on the part of the driver of the vehicle and brings the claim against the Trust as insurer. The Trust denies liability.

Issues

1. &##160;; W60therether the dthe driver of the vehicle was negligent in his driving of the vehicle at speed over an unsealed and pot-holed road.

2. & Whethe plaf eohd contrcontrcontributoibutory nery negligence such as would preclude the Trust from liability.

Held

The Court held the drias nent inmannewhich he drove the the vehicvehicle. Wle. While hile the othe owner of the vehicle must be partly responsible for the accident by using a vehicle not designed for the transport of passengers, the Court found that the owner and driver and therefore the Trust were not wholly responsible for any loss caused by injuries to the passengers in this instance. The Court further found that the plaintiff was contributorily negligent by sitting on an unstable object in the back of a vehicle having no passenger seats. It assessed such negligence at 50%.

Counsel

P. Kopunye for the Plaintiff

A. Kandakasi for the Defendant

Cases Cited

PNG Cases Cited

Gokam v The State 1990 N826

Kapia v M.V.I.T. 1991 N1024

Tambi v The State [1988-89] PNGLR 648

Tommy v M.V.I.T. 1991 N1023

WOODS J: &##160; The Plaintiff is clis claiming general damages for personal injuries he received when the vehicle on which he was riding o 20th July, 1988 ran off the road into a ditch. He was riding on the back of a plantation tion truck registered No AEL 430 driven by a Samarea Ulwong which was picking up coffee pickers and which went off the Banz Fatima road. The vehicle was registered in the name of Rui Pty Ltd which owned Rui Plantation where the Plaintiff worked although apparently Rui Plantation is owned by Panga Coffee and that is why some witnesses say that they thought the truck was owned by Panga Coffee. The vehicle was properly registered and 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 while he was driving at speed over some corrugations or pot holes on the road and thereby ran off the road into a drainage ditch at the side of the road and the Plaintiff was injured by being bounced around on a spare tyre he was sitting on the back of the truck. He says that the spare tyre slid around the back of the vehicle and injured his legs. The Plaintiff says that he was taken to the outpatients at the Nazarene Hospital at Kudjip where he stayed overnight and was treated. Since then he has been obtaining outpatient treatment for his leg. At the time of the accident the plaintiff says he was employed as a boss boy on Rui Plantation but since the accident he has had to give up his job and he is now living in the village.

When asked why his name was not included in the police accident report as one of the injured persons the plaintiff says that he kept on going to the Police Station to report but they would not include his name.

A witness Peter Karagu gave evidence as the Assistant Manager of Rui Plantation that the truck involved in the incident on 24th July was used to transport coffee pickers. He confirms that the Plaintiff was employed as a boss boy. He also says that the Plaintiff told him on Monday 26th that he was involved in the accident earlier on the weekend and that he wanted time off to go to the hospital for treatment.

Tekpa Man recalls that there was an accident on 24th July and that he was on the vehicle when it ran off the road into a drainage ditch. He does not recall anyone else who was in the accident.

Kumba Bulu was also on the truck and she recalls the Plaintiff being on the truck and being taken to the hospital for leg injuries.

Samarea Ulwong gave evidence that he was the driver of the truck and he was using it to pick up coffee pickers and that as he was driving along the road the vehicle bumped up and down and ran off the road. He said that when the truck bumped up and down the steering locked and the truck ran off the road.

Constable Wilson Hgando gave evidence that he investigated the accident and prepared the road accident report. He agrees that the road was very potholed. He also agrees that some person came to see him and asked to be included in the list of injured but he refused to add the name.

There is an Outpatient card that the Plaintiff attended the Nazarene Hospital at Kudjip on the 24th July 1988 with reference to a motor vehicle accident and he received treatment for leg abrasions and contusions.

While it is submitted to me that there is some confusion about the date of the alleged injuries between the 4th and the 24th July and that this should cast doubts on the Plaintiff's claim and further that his name did not appear on the police accident report these questions are satisfactorily covered by the evidence. There is sufficient evidence from another witness that the Plaintiff was on the vehicle at the time and was taken to hospital from the accident and the Hospital record corroborates the Plaintiff's claim. With respect to the police report the police did not actually attend the scene till some time after when presumably people may have left the scene and the Police Constable at no time denies that the Plaintiff could not have been in the accident, rather it is as if the Plaintiff was remiss in not reporting to the police earlier than he did.

I am satisfied that on the balance of probabilities on the evidence before me that the Plaintiff was on the vehicle at the time and did incur some injuries as noted in the report from the Nazarene Hospital.

However, I am not satisfied that the driver of the vehicle and therefore the Trust is wholly liable for any loss caused by those injuries. The vehicle involved was not designed for the safe carriage of passengers it had no proper seating for people, it is designed for carrying goods and cargo. However, the Owner and the driver clearly made it a practice to use the vehicle to carry passengers so they must be partly responsible. However, there must still be some responsibility on the people concerned for their own safety and to ride in a safe manner on the back. To sit on an unstable or unfixed object is not a safe method of riding on the back of such a vehicle especially over roads that are not even or sealed. So the Plaintiff was clearly negligent in sitting on what appears to have been a loose spare tyre while the vehicle was travelling along an unsealed and potholed road. I am satisfied that the manner of driving was negligent for the purposes of this claim the driver was clearly going too fast for the circumstances of the potholed road, anyone who has done any driving knows that a potholed unsealed road can be dangerous if taken at even a moderate speed and it is very easy for any vehicle to bounce out of control. There is no evidence to suggest any mechanical fault with the vehicle.

I therefore find there is negligence in the manner of driving of the vehicle however, I also find there was contributory negligence in the way the Plaintiff was riding on the back of the vehicle. I assess the contributory negligence at 50%.

ON DAMAGES

The Plaintiff's legs were knocked around by the sliding of the spare tyre on which he was seated when the truck went off the road. Initially he was treated for leg abrasions and contusions. The treatment at the time was apparently analgesics for pain and dressing and rest. However since then he has complained of continual pain in his left knee which has affected his walking. An examination by a doctor a year after the accident suggested a low grade post traumatic arthritis in the leg with an estimated 15 percent permanent disability in the effective use of the left knee.

This is not a case of multiple fracture to the leg with lengthy hospitalisation like Kapia's Case 1991 N1024 nor is it multiple fractures of both legs with consequences as in Tommy's case 1991 N1023 even though the level of disability was estimated to be the same in that case. Therefore I am unable to put this case in the same category as Tambi's case [1988-89] PNGLR 648 or Gokam's case 1990 N826.

I assess an amount of K8,000 for general damages however allowing for the 50% contributory negligence that reduces that to K4,000. I allow interest on K2,000 of that from the date of the writ to the date of Judgment. That comes to K223.12.

I order Judgement for K4,223.12

Lawyer for the Plaintiff: Kopunye Lawyers

Lawyer for the Defendant: Young & Williams