Etape v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 84; [1992] PNGLR 191; N1064 (1 June 1992)

N1064

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

JOHN ETAPE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

18-19 December 1991
4 February 1992
4 March 1992
1 June 1992

NEGLIGENCE - Liability - Collision between two vehicles - Identification of vehicle - No contributory negligence.

DAMAGES - Leg and thigh injuries - Permanent disability - Employment affected - Store supervisor - General damages K29,000 - Total damages including economic loss K91,553.53.

Facts

The plaintiff is claiming damages for personal injuries sustained as a result of a collision between the car he was driving and another car at Kagamuga near Mount Hagen. The injury caused him to be unconscious and later hospitalised. The injuries sustained from the accident became permanent, which made him disabled and unable to perform the job he occupied prior to the accident. The issue before the Court was the measure of damages.

Held

1. No contributory negligence by the plaintiff.

2. Damages of K91,553.53 ordered for the following headings: pain suffering and loss of amenities, past economic loss, interest on past economic loss, interest on past general damages and future economic loss.

Cases Cited

Kiak v Tora Enterprises [1986] PNGLR 265.
Koieba v Motor Vehicles Insurance Trust [1984] PNGLR 365.
Kunjil On v The State [1986] PNGLR 286.

Counsel

DL O'Connor for the plaintiff
K Yalo for the defendant.

1 June 1992

WOODS J: The plaintiff is claiming damages for personal injuries he received when the vehicle he was driving on the evening of 4 January 1989 along the Highlands Highway towards Mount Hagen at Kagamuga was struck by a vehicle travelling the other direction and forced off the road. The plaintiff lost consciousness at the time of the collision, was hospitalised for some time and has received permanent disabilities, which has led to him being unable to do the work which he was doing before the accident.

He says that as he was driving along the highway he came up behind and was following a Datsun 1200 when he realised an oncoming vehicle was coming across to strike the Datsun. He pulled off to the side of the road but was unable to avoid being struck by the oncoming vehicle. As he lost consciousness, he did not himself identify the vehicle that struck him. The vehicle he was driving was a Mitsubishi Cantor owned by his employer, Bromley and Manton.

John Atep was in the vehicle with the plaintiff. He confirms the plaintiffs story of the collision and states that he saw the other vehicle coming towards them but it was too late for the plaintiff to do anything. He was also injured in the accident.

A police officer, Constable Allan Abong, did the investigation into the accident and prepared the road accident report. However, he did not attend the scene that night but did so the next day. He confirmed the identification of the oncoming vehicle that ran into the plaintiffs vehicle as a red Toyota station wagon registered ADP 314. There appeared to be some doubt as to who was the owner of that vehicle at the time of the accident. Constable Abong noted it as a Constable Tandi, who was the driver at the time, whereas the defendant produced evidence that a Nathan Paul was the registered owner. Whoever may have been the registered owner, there is no evidence before me to dispute the identification of the vehicle and, thus, the evidence is sufficient for the purposes of a claim against the Motor Vehicles Insurance Trust pursuant to the Motor Vehicles (Third Party Insurance) Act s 53(1)(a).

I find no evidence of any contributory negligence in the plaintiff. The evidence satisfies me that he was driving on his correct side of the road. Even though he attempted to avoid a collision when he realised one may be imminent, he was unable to do so; and the collision was completely the fault of the driver of the oncoming vehicle.

On damages: The plaintiff suffered injuries to the left arm, right hip and right foot and was in some pain. He was hospitalised for 12 weeks after the accident. His arm and foot were immobilised in plaster and he had an operation on his thigh. After his discharge from hospital, he spent a year with relatives recuperating. He returned to employment with Bromley and Manton in March 1991 but was unable to work in his former position and has had to accept a less senior and responsible job with reduced pay. A senior officer with the company has given evidence that the company only accepted him back and is continuing to employ him because of their loyalty to him as a long-serving employee of good standing. They may be unable to continue to employ him because of his seriously reduced efficiency. Before the accident, he was a store supervisor at Banz and before that had been at Wapenamanda.

The injuries have left him with difficulty in walking, he is unable to carry store goods, he can only sit down and work and is in continual pain. He also has trouble sleeping. He has had to have many days off, and it is quite clear that the company will have to terminate his employment. In effect, the accident has cost him his job and his lifestyle. Amongst other things, as a store supervisor he had company accommodation, which he has now lost. He had worked for the company for around 13 years as a trusted employee.

The medical report does confirm a severe fracture dislocation of the right hip and fracture of the left humerus. He was left with a shortening of the right leg. The doctor estimated a 50 percent disability in that leg.

So the plaintiff has suffered injuries which have cost him his job and his lifestyle and security, and he will probably be unable to get a job again. The company has only kept him on till now out of loyalty and not because of his work ability now.

On general damages, I note the case Kiak v Tora Enterprises Pty Ltd [1986] PNGLR 265, where the plaintiff suffered dreadful injuries to his leg which required a number of operations to save the leg and he is left with a cumbersome shoe and calipers for the rest of his life. General damages there were assessed at K29,000.

In Kunjil On v The State [1986] PNGLR 286, the plaintiff suffered an injury to the hip, back injuries and severe contusions from hip to ankle, which left him with an 80 percent loss of ability to perform normal walking and other activities. General damages here were assessed at K18,000.

In Koieba v Motor Vehicles Insurance Trust [1984] PNGLR 365, the plaintiff suffered a complicated fracture of the leg which resulted in a permanent shortening of the leg. Because of the injury, he was unable to perform his duties and had to be compulsorily retired. General damages were assessed at K19,000.

There are other cases with similar injuries where figures around K22,000 and more have been awarded. From the established cases, and allowing for inflation, it seems that a figure of K27,000 would be appropriate for general damages.

The plaintiff has suffered and will suffer economic loss. He is clearly unable to perform the senior job he did before the accident and will be retired early because of his inability to perform work expected of him. The plaintiff did not work from the date of the accident until 24 March 1990. After that date, he was employed at a lower job and reduced salary and it is suggested that the company may have to retrench him as there is no job for him. Before the accident, he was earning K174 net per fortnight and was supplied with company housing. The loss of the housing can be assessed at K50 per fortnight. After resuming employment in March 1990, his salary was net K143 per fortnight.

I will allow for past loss at K174 per fortnight from 4 June 1989 to 24 March 1990, being 47 fortnights, which totals K8,178. I will allow the difference of K31 per fortnight from 24 March 1990 to date of judgment plus an allowance for loss of housing benefits of K50 per fortnight, which totals, for 30.8 fortnights, K2,494.80.

With respect to future loss, I cannot calculate that at the full loss of income as it is clear that he is able to do some work. However, it is clear that he has lost all opportunity of earning the former salary of K174 together with the accommodation benefit. On the other hand, I do not think I can assume that he will always be able to earn K143 net a fortnight. I must, therefore, assess an amount to take some account of the former total salary and benefit and the possible lesser income he may be able to earn. I will estimate a figure of K120 per fortnight until he attains the age of 55 years. He is now about 29 years. I will calculate the future loss on the 3 per cent tables for 26 years. This comes to K56,820. I will reduce this to K51,000 to allow for the vicissitudes of life.

Interest will be included on the past loss of income at four (4) per cent from the date of the accident till the date of judgment. I will allow interest at eight (8) per cent on K10,000 of the general damages from the date of the issue of the writ till date of judgment.

DAMAGES ARE AS FOLLOWS:

Pain, suffering, loss of amenities K27,000.00

Past economic loss 10,672.80

Interest on past economic loss 1,280.73

Interest on past general damages 1,600.00

Future economic loss 51,000.00

K91,553.53

I order judgment for K91,553.53.

_________________

Lawyer for the plaintiff: O'Connor & Hasu
Lawyer for the defendant: Young & Williams