Stephens v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 82; N1210 (18 April 1994)

N1210

PAPUA NEW GUINEA
[In the National Court of Justice]

WS 70 OF 1991

PATRICK STEPHENS

v

MOTOR VEHICLE INSURANCE (PNG) TRUST

Mount Hagen: Woods, J
3, 4, 14 February and 18 April 1994

Negligence - motor vehicle accident - collision between two vehicles - identity of the other vehicle - identified but uninsured - or unidentified - pleadings - liability.

Damages - personal injuries - back in jury - continuing pain - retail supervisor.

Cases Cited:
The following cases are cited in this judgement.
Kilte v M.V.I.T. [1992] Unreported N1085
Pakau v M.V.I.T. [1993] Unreported N1160

P Dowa for the Plaintiff.
A Kandakasi for the Defendant.

18 April 1994

WOODS, J: This is a claim for damages for injuries received by the Plaintiff when he was involved in a motor vehicle accident on the 11 May 1990. The Plaintiff was the driver of a motor vehicle a Mitsubishi Canter Registration No AFZ 190 which was proceeding from Wabag to Mount Hagen and it is alleged that it collided with another vehicle near the Tomba Gap. The Plaintiff alleges that the other vehicle was an unregistered vehicle a Mazda utility with the registration AEU 325 which was driven either by a Paul Epe the owner of the vehicle or a driver employed by him.

The other vehicle whilst not identified fully at the time of the collision was traced later and believed to be the above named vehicle but which was unregistered.

Initially it was believed that the vehicle may have been registered and that was the original wording of the Statement of Claim however subsequently it was discovered that the subject vehicle was unregistered. The Plaintiff sought leave to amend the Statement of Claim to record the supposed unregistered status of the vehicle and leave was granted to amend. So the claim proceeded to trial on the basis that it was an unregistered and uninsured vehicle however from due research and investigation the Plaintiff was satisfied that he could clearly identify the vehicle.

The evidence on the accident itself is that the plaintiff was driving his vehicle from Wapenamanda and late in the afternoon but still during daylight hours as he was going up a hill near the Enga and Western Highlands border a vehicle driving fast and erratically down the hill towards him swerved across to his side of the road and struck his vehicle. The Plaintiff was pinned inside his vehicle however he describes the other vehicle as a green Mazda truck with people on the back. The other vehicle did stop a bit further down the hill after the accident for a few moments but the Plaintiff being pinned inside his vehicle was unable to go out and identify the other vehicle exactly with its registration number.

And unfortunately the other people with him in his vehicle did not positively identify the other vehicle although they later somehow came up with a registration number and identification of the vehicle named in the Statement of Claim. So following search and enquiries they came up with a Mazda Truck registration No. AEU 325 apparently owned by a Paul Epe. Paul Epe admitted owning the vehicle with that registration but denies it was involved in the accident, rather it had been earlier damaged and off the road at the time of this accident and also it had not been registered for some time since the earlier incident.

Police apparently tried to find the other vehicle but did not really establish the identity of the other vehicle except they were told that it may have been the said Mazda Truck 325 but they had not firm evidence themselves.

So at the end of the Plaintiff's evidence do we know this other vehicle. Whilst the Plaintiff called the alleged owner of this vehicle he the owner denied his vehicle was involved in this accident. So the Plaintiff's own evidence is against this identification. So there has been no positive identification of the registration number, only hearsay suggestions, and no follow up to put this vehicle on that road that afternoon. The evidence also suggests that this vehicle had been out of registration for some time so this also casts doubts on being on that road that day as it was a fairly new vehicle and being a vehicle that seemed to have been operating regularly in the Western Highlands Province it would more likely than not have been properly registered and insured.

The Plaintiff has proceeded against the Motor Vehicles Insurance (PNG) Trust under Section 54 of the Motor Vehicles (Third Party Insurance) Act Ch 295. To so claim against the Trust you must prove that your injuries were caused by or arose out of the use of –

1. a motor vehicle insured under this Act; or
2. an uninsured motor vehicle in a public street; or

100. a motor vehicle on a public street where the identity of the motor vehicle cannot after due enquiry and search be established.
     

It is therefore necessary to establish the basis of the claim under one of the above three categories. And of course it goes without saying that you must plead your claim to put the Trust on relevant notice on which basis the claim is based.

As noted above in the Amended Statement of Claim the Plaintiff has claimed against a definite vehicle, the Mazda AEU 325 owned and driven by Paul Epe or alternatively by an unidentified driver, and has also claimed that this vehicle was uninsured.

The Defendant submits that at the end of the evidence the vehicle that caused the accident has not been identified so it is not merely a claim under Section 54 (1) (b) namely an uninsured vehicle, but it is an unidentified vehicle under Section 54(1) (c), and it was necessary to specify clearly in the Statement of claim that it was a claim against an unidentified vehicle.

However the whole claim was against a vehicle that was uninsured and the plaintiff clearly said he did not know the driver. Whilst there had been a due enquiry and search both by the police and his own people and they thought they may have found the vehicle concerned just because it now appears on the evidence doubtful that the due search and enquiry has actually uncovered the correct vehicle does that mean that the plaintiff has not done as much as the law expects.

In earlier cases it has been clearly stated that the plaintiff must put himself into one of the three subsections of Section 54 (1). See Kilte v M.V.I.T. [1992] Unreported N1085. Surely he has clearly done that by claiming it was an uninsured vehicle which he thought he may have found although was not sure if the driver was identified and even though the vehicle that everyone thought was the one may not be the one should he therefore lose because the pleading was not all the exact. Surely the plaintiff has done as much if not more than could be expected. He searched and found a highly likely vehicle.

If there is doubt about the vehicle responsible for an accident the law and the Act required due enquiry and search. This has clearly been done in this case. The Defendant was put on notice in the pleadings that there were difficulties about the identification and insurance of the vehicle and the plaintiff had made enquiry and search. I am therefore satisfied that the Plaintiff has done as much as is required under the legislation and I am satisfied that there was an accident in which the plaintiff was injured through the negligence of some other driver and vehicle who remain unidentified. And I am satisfied that by virtue of the Act the Motor Vehicles Insurance (PNG) Trust is liable. There has been no suggestion of any contributory negligence in the Plaintiff.

QUANTUM

In the accident the Plaintiff was pinned in the vehicle, "the front of the vehicle punched and wrapped around the ignition and the steering column hit my right knee and my back was pushed up against the back of the seat and I was squashed". The Plaintiff is claiming for back injuries which the medical evidence refers to as inflammation and pain and the suggestion of a ruptured disc and compression of a disc.

At the time of the accident the Plaintiff may not have realised that there may be long term residual effects and initially it seemed he was only treated with pain killers and antibiotics. Whilst there may not have been any obvious apparent open injuries at the time of the accident I am satisfied that in such an accident there is a good likelihood of the less exact back complaints referred to.

This type of injury is very hard to assess, it is often a matter of general pain and difficulties. The Plaintiff is not a manual technician or worker, he had a supervisory role in a retail business and has a Higher School Certificate with no special expertise. His claim is for general damages for pain and discomfort and although he mentions economic loss there are no details of how this economic loss can be assessed. Estimates of disability are 20 to 25 percent permanent disability to the spine.

In the case Pakau v M.V.I.T. [1993] Unreported N1160 general damages was assessed at K15,000 for a similar percentage of disability. Many of the other cases where the end result was serious back injuries or difficulties involved serious fractures to the hip or pelvis or leg or foot so were easier to pinpoint with more exactitude. There is nothing here in this case to give the court much help so I can only assess a general difficulty. For general damages I assess an amount of K20,000.

Whilst future medical expenses have been claimed there has been no real evidence to support this or to help with any specific amount. So I am unable to consider this heading. There has been no particulars of economic loss pleaded and then no real evidence presented apart from an affidavit from the plaintiff's employer suggesting a lowering of business performance. There has been nothing to help with any exact assessment.

I can therefore only give an award for General Damages as stated at K20,000, I will award interest at 8 percent on K6,000 of that from the date of the write to to-day which assesses at K1,531.00.

I order Judgement for K21,531.00.

__________________________________

Lawyer for the Plaintiff: P. Dowa
Lawyer for the Defendant: Young & Williams