Pyakalo v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 32; N1092 (25 August 1992)

Unreported National Court Decisions

N1092

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 388 OF 1990
NITA PYAKALO
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
21 July 1992
25 August 1992

NEGLIGENCE - motor vehicle accident - liability - vehicle unregistered and uninsured but identified - overloaded - contributory negligence.

DAMAGES - hearing loss.

Cases Cited:

The following cases are cited in the judgement.

Costello v Talair [1985] PNGLR 61

Waima v MVIT 1992 Unreported N1075

Counsel:

P Kopunye for the Plaintiff

A Kandakasi for the Defendant.

25 August 1992

WOODS J: This is a claim by thintifintiff for damages for injuries received when he was injured in a motor vehicle accident which occurred on the 15th May 1987 on the Enga Highway between Wand Wapenamanda. The Plaintiff was riding on the back of a Tf a Toyota Stout which was unregistered and uninsured although identified by the registration No AEU 281 and which was driven by a James Tomage. The vehicle ran off the road and overturned into a culvert and a number of people were killed and injured including the Plaintiff.

It is alleged that the accident was caused by the negligent driving of James Tomage. It is implied that the driver was driving the grossly overladen vehicle, it appeared there were over 20 persons on it, too fast for the state of the overloading and the condition of the road and was careless in his manner of driving such that he failed to take a curve safely and went off the road.

There appears to be no dispute that the vehicle had no current registration and was therefore uninsured however the claim was made on the basis of being uninsured and therefore can be brought against the Trust by virtue of s 54 of the Motor Vehicles (Third Party Insurance) Act. The vehicle was clearly identified and the driver was identified.

The Plaintiff submits that the accident was caused by a mechanical defect and not by negligent driving. The Police Constable who investigated the accident had a PTB mechanic examine the vehicle after the accident and he referred to some steering pin getting lost. So what do I assess from this. Does this mean a steering fault caused the accident. There is no doubt that the vehicle was grossly overladen and further it had been out of registration for some years.

The vehicle was substantially damaged in the accident. I knew from my own knowledge and I am sure it is a notorious fact that it can be difficult to steer a grossly overladen vehicle which the subject vehicle was with over 20 people on board. And from the description of the road the vehicle had just come through a slight bend and that is often when the steering can get harder to handle on a grossly overladen vehicle. So I am not satisfied that the accident was caused by a mechanical defect instead the balance of probabilities is that it was through the negligence of the driver in deliberately driving an unregistered vehicle which it can be presumed was unregistered because it was not in a registerable condition and this was all compounded by the overloading.

However the Plaintiff must take some share of the responsibility for the use and operation of the vehicle. The Plaintiff knew the vehicle because it was operated by someone from his village, the particular trip was a joint activity to go and kill a cow and the overlading was quite obvious. Further I have ruled in other cases such as in Waima v MVIT 1992 Unreported N1075:

“people must accept some responsibility for accepting rides on vehicles that are not registered and thereby not insured, current registration and therefore insurance means that a vehicle has been passed as being safe for use upon the road. The converse can imply that the vehicle has not been passed for safe use upon the road. All vehicles carry an appropriate sticker fixed in a place for all to see which clearly indicates the present state of the registration. People must accept the responsibility to themselves to understand those stickers.”

In that case I found contributory negligence. But to add to this contributory negligence there is the further contributory negligence of joining in a grossly overladen vehicles.

I find the whole involvement of the plaintiff in the subject vehicle was greatly his own fault and I therefore assess his contributory negligence at 75%.

ON QUANTUM

The Plaintiff says he suffered a dislocated left shoulder and ruptured ear drum. There is no evidence to confirm any shoulder injury. Witnesses do confirm the Plaintiff was thrown onto some sand in the culvert or creek at the time of the accident and there is reference to his ears being lacerated with sand. A mechanical examination a year after the accident shows a persistent pain and discharge with large perforations of the ear drums. A medical examination more recently refers to the Plaintiff still suffering from bilateral ear discharge and very bad hearing loss. Of course the Doctor cannot confirm that this hearing deficiency did eventuate from the motor vehicle accident.

I am satisfied on the balance of probabilities from the evidence that it is more likely than not that any ear problems now suffered by the Plaintiff did result from the accident. The loss is not full hearing loss only partial.

There are no cases simply on hearing loss. The case Costello v Talair 1985 PNGLR 61 had some ear damage but it did not include any loss or handicap in hearing so that case cannot help. So I have to assess a figure for some hearing loss without any precedents. I am satisfied the plaintiff does have some hearing loss as affirmed to in the medical reports and as noted from his behaviour in the witness box.

However it is not a total hearing loss but only a partial hearing loss. Any hearing loss is a difficulty which can never be made up for in any way so I must assess a suitable figure for a village man. Aged about 30 years I assess a figure of K8,000. However that figure must be reduced for my assessment of 75% contributory negligence which reduced it to K2000. I allow interest on that at 8% from 29th June, 1990 till today being K345.00.

I order judgment for the Plaintiff in the sum of K2,345.00

Lawyer for the Plaintiff: P Kopunye.

Lawyer for the Defendant: Young & Williams.