Ambom v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 37; N1116 (10 November 1992)

Unreported National Court Decisions

N1116

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 318 OF 1990
BEPIWAN AMBON - PLAINTIFF
V
MOTOR VEHICLES INSURANCE (PNG) TRUST - DEFENDANT

Wabag

Brown J
7 - 8 September 1992
10 November 1992

NEGLIGENCE - Motor Vehicle accident - Vehicle rolled over - res ipsa loquitur - No real explanation for accident.

EVIDENCE - Motor Vehicle Registration and Insurance - Absence of certificates - sufficiency of proof.

DAMAGES - Personal Injuries - Plaintiff 20 years old female school student (18 at the time of accident) reliant on subsistence farming parents - Loss of arm in accident - Formal amputation at mid humerus - Severe shock - Life threatening injury - Minor lacerations to feet, knee and thigh.

Counsel

Mr M Thoke for the Plaintiff

Mr A Kandakasi for the Defendant

10 November 1992

BROWN J: This young lady waured in d in a motor vehicle accident which occurred on the 26 August 1988 on the road to Mount Hagen. She was a passenger in thi vehicle travelling from Wabag. She sues the Trust e authorised Third Party Inty Insurer of the vehicle, a Nissan Patrol pursuant to the provisions of s. 54 of the Motor Vehicles (Thirty) Ince Act:

&

“Subject to ss. (2), any claim for damages in respect of the deae death of or bodily injury to any person caused by, or arising out of the use of:

(a) &ـ a motormotor vehicvehicle insured under this Act; or

(b) an uninsured motor lehic a in a public street; or

(c) tor ve ou a p slic strcet weet weet where the identity of the motor vehicle cannot after due inquiry and search be established.”

The facts are that sh a giend labag scho the day at about 6out 6pm inpm in this this vehi vehicle dcle driven by one Steven Kuru, to spend the weekend in Mount Hagen. e Togoba turn-off, a shortshort distance out of Mount Hagen town, the vehicle left the bitumen, rolled over and seriously injure plaintiff. The plaintiff allegat the the accident was due to the negligence of the the driver who drove too quickly, was careless and was affected by alcohol.

I am satisfied the driver was affected by alcohol from the evidence of the girl and Constable Saliemunge of the Traffic Branch, Mount Hagen Police (who attended the scene and prepared a traffic accident report). Fhe distance shown in the the sketch the vehicle would appear to have been speeding to roll so far before coming to rest, I needattempt to reconstruct the events leading up to and during the accident to find speed or caor carelessness. There was no other le invo involved. In the circumes the maxim axim res ipsa locatur applies and negligence is assumed.

The question r by the defence however, remains. Wa girl guilty of contributributory negligence?

?

She said in her evidence that she sat in the front of the vehicle in the middle seat next to the driver. On the way to Mount Hagen he was drinking beer and speeding. She said the accident happened at about 9:20pm when the vehicle turned over because the driver was driving too fast.&#160 left arm was crushed and she was taken to the Togoba HealtHealth Center where her condition was stabilised before she was taken to Mount Hagen Hospital. There she ubsequently oper operated upon to amputate what remained of her arm. She said she slept after Wabag until Paipona when her companion woke her and told her that the driver was drinking. She she did nothing about bout tand fell asleep again until the time of the accident. She had not see driver drir drir drinking up to the time she fell asleep Wapenamanda. Paipona to Togoba is a30 m 30 minutes dtes driving. Tiving time between Wabag abag and Mount Hagen was betw 1/2 to 3 hours and there were were no unusual conditions described on this occasion to warrant a variation. Yet the journey seemed ve been of unusual durationation even without stops. The vehicle was 30 minutesnutes from Mount Hagen when the accident happene>

I am not satisfied that the plaintiff was frank in the witness box. I find it exit extraordinary that a 17 year old school should get into a vehicle icle driven by an unknown male (even if she was a paying passenger) go to sleep soon after, and remain aslven when told that the driver was drinking. She admitadmitted baware hare he was driving too quickly. She in fact said he dranara carton of beer but I give this little credence for I find her evidence on the manner and circumstances of the drive unsactor>

I do rely only on thie independent evidence of the policemen. The policeman says says the accident happened at 11pm and that the driver and other passengers were consuming liquor. No quns were directed to t to the constable to elicit how he camsay this, but Mr Kandakasi for the Trust says the journey wney was in fact a joy-ride for the girls. He points to the fact thatgirls were the only passengssengers while they told the policeman at the time that they wished to be dropped off at home down the higfrom Wabag school, and thus the driver was effectively holding them in the vehicle contrarytrary to their wishes. The plaintiffourt says shes she wanted to go to Mount Hagen for the weekend. He says the accident report clearly shows the accident to happened long after the time alleged by the girl and if I accept the independent evidence once of the policemen, the girl has failed plain the inordinate delay in reaching Togoba. The dehe delay w their ownr own making, he says, whilst they were drinking on route. He says there was complicity with the driver, she was aware he was intoxicated and on her own admission that he was dg fast, she should be held held partly responsible for her injuries.

I must say with that I agree. If she had joined the driver as Mr Kandakasi says for a frolic of their own, then the very accident happened which could have been, anticipated, where alcto the extent shown by the policeman, is shown to have affected the driver. If she hahe has paser home home and was taken to Mount Hagen contrary to her wishes, surely she would have pressed that aspect in this Court. But hose to say and rely oely o assertion that she slept for the greater part of the drivedrive. I t accept that assertion.tion. I that she was awa the drie driver's drinking, and his manner of driving too fast.fast. By her ece, I am not satissatisfied she was precluded from eitemonsng with the drivedriver, or being put down with her girlfrirlfriend before this accident. I consequefind the plaintiaintiff didrially contribute to her iner injuries by her own negligence. I consa fair assessment isnt is 30%. amages will accory be redu reduced by that percentage. Now befoing to g to that ahat aspect I wish to deal with the question of the identity of the rered , and whether or r or not the vehicle was an insured vehiclehicle for the purposes of s 54(1) of the Motor Vehicles (Third Party) Insurance Act.

I said, when allowing the policeman's evidence on these points, that I would give reasons, for the material point, whether the vehicle was registered and insured must surely go to a document.

There are registered details in the Motor Traffic Registry or there are not. The Trust has a registernsf insured vehicles yet no document has been tendered. The poln says that he obta obtained the whole particulars of ownership, registration details and the 3rd Party Policy number and e date the Traffic Regi Registry at Mount Hagen. Those details were st in h in his Motor Tror Traffic Report, tendered, but he forgot to complete the ‘expiry date’ space.

In Papua New Guinea this evidence of current registration is specificalovided for by legislative pive provision. Motor Traffic Act Cha243 S243 Section 42 provides:

“(1) Parars o thestegistrationation of motor vehicles and of the issue of certificates, permits under s 11 and licences shall be red atpresc office or offices.

(2) ;ټ An extr extract frct from from or c or copy oopy of any entry contained in a record kept in accordance with ss (1), certified by a prescribed officer, shall, in all courts and on all occasions, be:

(a) ـ&#1eceiveceived as e as evidence; and

(b) ; deemed to be cufficient pent proof of all particulartainethe entry, without requiring the production of the books, permit, licence, requisequisitionition, notice or other document on which ttry wundedbe engaged sged solelyolely.R.”

A certificate or extract under ss. (2) is accordingly the document required here.

I presume the practice has been to write to the relevant authorities seeking details of registration and insurance and the reply under hand of the appropriate authority is evidence. The MVehicle (Third Party arty Insurance) Act Ch 295 provides by s. 49:

“(1) &#160orderomply mply with tith the requirements of this Act, a third party insurance cover shall

(a) &##160;< in0; in the ar the Centralntral Traffic Registry - be issued by the Trust to the owner of a motor vehiclehe owner lodging with the Superintendent:

(i) ҈ an0; an applicationation for registration or re-registration, as the case may be; and

(ii) &##160;; the appe appropriaopriate amount of insurance premium in respect of ttor ve; an

(b)&#160  in ; in any other area -sse issued by the Trust to the owner of a motor vehicle on the owner obtainiom ant of the Trust a certificate in a form approved by the Trust stating that the appe appropriropriate amount of insurance premium in respect of the motor vehicle has been paid.

(2) &#1 third party insurance cnce cover issued under Subsection (1):

(a) ـ where iere it is issued in relation to a particular motor vehicle, insures the owner of the mvehicd anyr person who at a at any tiny time drives the motor vehicle, whether with or without the authority ofty of the owner, jointly and each of them severally against all liability incurred by the owner and the other person jointly or by either of them severally in respect of the death of or bodily injury to a person caused by, or arising out of the use of, the motor vehicle, to an amount not exceeding:

(i) ; K600,000.00 in respect ofct of the death of or bodily injury to any one person in any one case; and

(ii) &##160; K500,0000,000.00 incthe ofse of any one accident or series of accidents arising out of the one event; and

) &##160;; becomescomes effeceffective on the date of registration or re-registrgistration, as the case may be, of the motor vehicleespecwhich it is issued; and

(c) continues in forn f

(i) ҈& w60;e tere the rege registration is renewed within 15 days after the expiry of the preceding period of registration - until the df ren and

(ii) ; in any other -ase - untiluntil 1til 15 day5 days afts after the date on which the registration expires.”

Now the le ind in accids a Highlands vehicle, consequently (b) of subpara (1) of s. f s. 49 ma49 may be y be relevrelevant here. In those circumstance fact fact of registration raises a rebuttable presumption under s. 50 of the Motor Vehicles (Third Party Insurance) Act that thistered vehicle has a current third party insurance cover. Sect0 provides:

“The Superintendent shall not register a motor vehicle unless:

(a) & in the case of a motor veor vehicle situated in the area o central Traffic Registry -try - he has received the amount of third-party insurance premium payable in respect of the motor vehicle;/p> <ـ i60; in a in any othy other case - he has received a certificate issued under s. 49 (1) (b) in respect of the motor ve./p>

That does not preclude in my opinion other evidence on the point, when no n no certicertificate or extract under ss. (2) of s. 42 of the Motor Traffic Act has been tendered. The Constable hven oral eval evidence of search without producing the record for the Court. While not the bestence, I e, I am prepared to allow the Constable's statements in as proof of the facts.&#160ay this having regard to cito circumstances appertaining to production of records of this nature at Wabag and the general practice in the past which seems to have equated the assertion with the fact. While that latter is no reason, it goes someway to explain why no better or primary evidence is available here. With that, not agree with with my brother Woods J where he says in Marilte v MVIT (unreported N1085 of June 1992) that tender of r of the Motor Traffic Accident report is proof of registration and insuraf shown, without anything fing further. Such an assertion seemse t me to be contrary to the requirements of s. 42 but in this case I am prepared to allow secondary evidence of the details of the record kept, under ss. (1) of particulars of registration.&#I accept the policeman̵’s evidence of search as sufficient for the presumptions the plaintiff wants me to make. Here,policeman gave viva viva voce evidence to show where he derived his information. It is his evid not just thst the tender o traffic accident report, on which I place credence.

I am satisfied that the vehiclehicle REG: AGO-158 was registered in the nf Jolsom Kutato, PO Box 484, Mount Hagen and had a current rent policy of insurance No 0062034 at the time of this accident. Thst, having notice of thef these particulars had opportunity to refute the facts.

I come then to the claim for general damand special damages pleaded to include future economic loss. Ths particularised ised ated at K10 per week for 40 years using 5% actuarial tables to give a present value of K12,400. At the trr Thoke claimed emed economic loss of 50t per day of K5 per for the years leading up t up to trial. The girl still remains at school, no evidence was led to explain why that claim was macept for a passing referencerence to gardening. That claim and the or futu future economic loss must fail for no evidence has bed to support such a claim.laim. In circumstances the doct doctor who was called opinioned that her chances of marrying may beced. But how that cant can be translated, if at all, to an economic loss was unexplained. It is cleat, if I accept hept her chances of remarriage have suffered then that fact may be reflected in general damages, as a disability, but in Enga is not the lot of e but drudgery, would that loss of opportunity give rise tose to a claim?. In any event no realence ince is before me of her claim to support from her parents clan or whoever. She obviously ustomary supy support. Woods J.erated the clear near n the point in the recent case of Repas Waima v MVIT (WoodsWoods J unreported decision - Mount Hagen - August 1992) where he said spedamagst be strictly prly proved by evidence. That also appo applies stocustomary claims. That part r claim fails.

General damages for pain and suffering, loss of enjoyment of life through this disability and loss of opportunity remain to be aed.She tendered in d in evidence a report by Dr. Jacob Ollapallapallil, her treating surgeon of Mount Hagen General Hospital. I qfrom his report to show show the extent of her injuries.

“This lady was involved in a motor vehicle accident and sued a crush injury to the left forearm and lost the left elbow. as admitted in a in a very very critical condition on 26.08.88. She was transferred (sic) with blood and started on antibiotics. The ragged amputation stump was repeatedly debridedake it clean. On 11th 11th October the stump was skin grafted. The woundled well and she she was discharged on the 19.10.88.& I have examined her on 05.10.88 and the amputation stump iump is healed well and there is 90% loss of efficient function of the left uppeb. She needs to be fibe fitted with a prosthesis.”

She had then a shocking accident where her arm was crushed. Wh or not she lost conscionsciousness I do not know. She was neveed. I ac I accept however, that the pain leading up t first operation to formally amputate the useless remaining flesh and bone would have been been excruciating. Then she underwenecondation some weeks eeks later to skin graft the stump. 160; The debridof her skin skin at the injury site would have been continuexcruciating, scrubbing the raw skin and exposed nerves. She cannot n properly, rly, rly, she cannot expect to type two handed,is awkward clothing herselfrself and carrying out all those personal things which two handed people take for granted. Just as iantlyis always coys conscionscious of her loss and it causes her continuing embarrassment. She hidesstump in clothingthing, as id in Court.

She is an engaging young woman with a quick personality who must sufferuffer this stigma for the remainder of her. It is a mental as well as a physical burden. 160; I am not scerned by h by her lesser lacerations to her toes, which have completely healed nor to her thigh, a superficial injury.

In the circumstances I consider K35,000.00 to be an appropriate afor general damages encompacompassing those heads I have touched on. I do not propose to canvass the various awards given for similar injuries reported and unreported for the older awards are of little value as a guide with the passage of time and the pec circumstances of each claimant deserves to be considered ared afresh. The particular circumstaofes of a traditional villager in Papua New Guinea are so disparate from province to province that it is dangerous to generalise. I also allow K150.00 speilst at hospital for her support. Thts of the vahe various mous medical reports are medico/legal costs to be included in the plff lawyers bill of costs.

There has been compensation of some 31 pigs paid by the drhe driver’s line to the girl’s line. The fact of compensation bust be taken into account when assessing the damages so that, in accordance with the principle in Aundak Kupil & Kauke Kensi v The State (1983) PNGLR 350 I propose to deduct the value of such customary compensation from my award. It is in the publicrest thst that I do so, otherwise the girl shall be doubly compensation for the same injury. I t, however, know just whst who has the benefit of the pigs, and what obligations flow in favour of the girl if she does not have. I propose then to discount the value of the traditional compensation to be deducteducted for the onus of showing the whole of the benefits have flowed to the girl rests with the defendant. I also assess the value of the pigs in 1988 terms at on average K150 each doing the best I can without guidelines apart from the range of values put by Mr Kandakasi for the pigs from K50 to Kach - 31 pigs @ K150 each totals K4,650.00. I consequnsequentlyce the the damages of K35,150 by K3,100 (discounted) for the traditional compensation, and then deduct the percentage for her contributory negligence.

That gives me K32,050 times 70% fr share ie. K22,435 as her her damages which will attract interest at the rate of 8% from the date of institution of proceedings to judgment. There shall be aict and jund judgment on the claim in the sum of K32,050 less the amount of the defendant’s judgment of K9,615 on the cross claim for contribution.

The plaintiff shall have her costs to be assessed or taxed reduced by 30%. I make no order as sts on s on the cross-claim.

Lawyer for the Plaintiff: Ml C Thoke Lawyers

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Lawyer for the Defendant: Young & Williams Lawyers