Koli v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 43; N1556 (16 April 1997)

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NEGLIGENCE - Motor vehicle accident - Personal injuries - Fracture to left arm - Injuries - Nature of - First medical treatment evidence by report on subsequent treatment.

DAMAGES - Motor vehicle accident - Villager and subsistence farmer - Injuries - fractured left arm - Internal fixation by - Intra Medullary rod.

(1) &#1n the balance of probabiobabilities, the driver and Defendant Insurer are liable for plaintiff’s injuries and inspite of the fact that, there was no evidence of the first medical treatment received, it was sufficiently evidenced by the subsequent medical report that, the plaintiff’s injuries were the result of the accident occurred on 10th of December 1993.

Pep v Bakri Yamba and the Independent State of Papua New Guinea [1987] PNGLR 485

LENALIA AJ: This was a trial for which the Plaintiff is claiming damages for injuries she received on her left arm when the vehicle she was riding on being a Toyota utility Registration No AGK 463 owned by Isai Mose and driven by Ross Komba on 10th of December, 1993 went off the road into a drain. Thcident occurred near Surr Surunki Village between Laiagam and Wabag.

The Plaintiff’s case consisted of five witness who gave oral evidence including the plaintiff herself and an affidavit sworn to by the doctor who due to work commitment could not turn up to give oral evidence. The Plaintiff pleads in her Statement of Claim that because of the negligent driving of the driver by driving at a speed which she claims to be excessive, failure to keep a proper look ouiving with due care and attention and failure on the part oart of the driver to control the vehicle resulted in or caused the accident on which she sustained a fracture on her left arm. She fr claims that from thom this injury she continues to suffer pain and inconvenience. Her claim i general damageamages, economic loss and the interests accruing to the amount she claims.The Plaintiff herself a ho a house-wife said she and another five (5) passengers were riding at the back of the vehicle owned by Isai Mose driven by driver Ross Komba with another two in the cabin when the vehicle got involved in an accident. It is unfortunat did not dnot describe the manner of driving. She only said, sh at the bthe back and was not really aware of what was goinbut was only surprised when the vehicle went off the road into a drain. According to g to her all passengers were thrown out whhe was thrown against the bthe body of the vehicle still inside the tray thereby causing her a fracture on her left arm. She sae ret to Surunki Heai Health centre where she was told by a by a medical officer to immediately report to Sopas Hospital. Thereno eve of a letter ofer of referral from Surunki to Sopas. She claimt at Sopas Hpas Hpas Hospital she was hospitalised for two s two weeks during which time her hand was covered with a cast. The d of hospitaspitalizatlization is contradicted by the evidef Dr. Stephen Lutz who says says in paragraph (1) of his report on the plaintiff that according to the plaintiff’s bed number aas Hospital, she was admittdmitted on 10th of December 1993 and discharged 17th December the same year.

It is not clear from her evidence whether the cast applied at the Sopas Hospital was removed or not prior to seeking treatment at the Immanuel Lutheran District Hospital at Mambisanda on 22nd of February 1994 some two months and five days later complaining of pain and inability to use the left arm. The r’s remarks on h on his report dated 21 November 1994 was that the fractured bones were healing with severe angulation. Il return to the doctoror’s evidence latter. Part of thintiff’s e7;s evidence is that her husband is a Pastor in the Lutheran Church who has to travel from place to place and she has to do all gardening by herbut she cannot now be able to carry out her normal gardenindening duties she once used to do.

George Gugube was the duty officer at the Surunki Police Station when the matter of the accident was reported to him. He aed the scene and also also compiled an accident report on his findings. George’s observatn t on the scene was that the front of the vehicle was in tain while the back was still up the side of the road. #160; He brieflcked the vehe vehicle and found that the steering was too l Aftking notes htes he aske asked the driver to accompany him back to the Surunki Police Station. Titness said he we Wababribabring a mechanic anic to check the condition of the vehicle but despite reporting to the O.he O.I.C. of the Department of Works in Wano mechanic accompanied him back to the scene. Seeingeeing ther no mechanechanic the vehicle owner was mindful about his vehicle being left unattended to in fear of vehicle theft, the vehicle was taken back to a nearby workshop.

John Pyatti was a pger riding in the cabin witn with vehicle owner Isai Mose and driver Ross Komba. He is an High l Teacher aner and was then teaching at the Surunki High School at the time of the accident. Hiollection of the accidencident is that, when he boarded thecle at Surunki the driver was travelling at high speed.&#16. They aphed a corner at Kekt Kekaplam village, the driver tried to iate the bend but it was toas too late, he skidded and ran off the road with the front of the vehicle landing directly in the drain.& His evidence is also that,that, one of the passengers a female broke her arm and was taken to Tobens Health Centre then latter referred to Sopas Hospital. Nonthe other passengers rers received any injuries except the female he referred to earlier.

Isai Mose is the owner of the vehicle which was involved in this accident. His evidence is thathe date date of this accident, he travelled with his driver and between Surunki and Wabag when his vehicle got involved in an accident. He said as they approache bend and just prior to reaching it, the vehicle went offt off the road and hit the drain at a village called Kekaplam. Thereloose gravel on the rthe road and the only person who received evidence was the Plaintiff who complained of a broken arm. askedhief when did his vehs vehicle went through the last service, he said it was two to thto three weeks prior to the accident.

The medical evideevidence in support of the Plaintiff’s claim is contained in annexure “A” to Dr. Stephen Lutz’s Affidavit sworn before the Commissioner for oaths on 11th of July 1996. Dr. Lutz rmed the Plaintifintiff’s evidence that, Levakia Koli was admitted to the Immanuel Lutheran District Hospital at Mambisanda on 22nd of February 1994.&#160 then complained of pain and inability to use the left arm arm and the bones affected were healing with severe angulation. On ame date the plaintiff tiff underwent an open operation on the left radius and there was placed an internal fixation by means of#8220;intramedullary rod”. The report does not say how long was she hospitalizealized at the Mambisanda Hospital. The Plff returned to Dr. LDr. Lutz on 21st of November 1994 seeking a medical report. The doctor&#821indings thes then were the was healing well well. The alignmenthe bones was was good and she had a full range ange of flexion and extension of both the elbow and left wrist. Despite that, ion of the fthe fthe forearm was now limited. She underwent an generallerally showing good healing but there was a line of “radioluency” extending part of the way through the fractured region suggesting the posity of delayed or non union. Thtor concluded thad that that the plaintiff would now have 15-20% loss of function of the left arm and an overall permanent disability of five percent.

The defendant did not call any witnesses. There is no doubt the ant dent occurred as the result of the careless driving of the driver concerned.

There is evidence that the said vehicle woperly registered and insured with the Defendant pursuant to S. 54 of the Motor Vehicles (Tes (Third Party Insurance) Act - Ch. No. 295. The defence Counsel raa nu a number of issues in his final submission. The first is there was lacs lack of description by the plaintiff as to how she received her injuries. Secondlt there is lack of k of contemporaneous medical report as ece to corroborate the view that the injury resulted from thom the accident of 10th of December 1993. Two other factors in relato conflict of evidence on h on how the injury arose and whether the vehicle was fitted with proper seats for passengers to sit on.[1993] PNGLR 485. I distinguish that case thom the instant claim. The plaf in that case did did not produce any medical reportelation to treatment he received nor was there any police aice accident report. His Honour said there thal a claim of such nature mu supported by a contemporanporaneous medical evidence together with a possible police accident report.

In relation to coons referred to in the defence submission Woods J discussedussed in Kulno Kanzie v Motor vehicles Insurance (PNG) Trust N1030, that twas total confusion as to whether the vehicle in that accidaccident actually overturned or merely skidded to the side of the road.

While it is submitted to me that, there was no evidence of referral from the Health Centre at Surunki to the Sopas Adventist Hospital and no evidence produced to support the view that the plaintiff had sought medical treatment at Sopas Hospital, I am equally convinced by the evidence of the plaintiff that she must have at some stage been admitted to the Sopas Hospital. Dtz refereed to her bed nued number being 55808 at the Sopas hospital. Apart from this, Senior Cbnstable George Gugube and Pyatti both confirmed that the Plaintiff’s arm was broken. Dr. refers to t to the tree treatment received by the PlaintifSopas as a fracture to the left radius and ulna treated by d by closed “reduction and casting”. There is sufficientence otom other witnesses tses that the plaintiff was on the vehicle and she injured her left arm against the body of the vehicle thecausing her a fractured left arm. From this evidence I am satisfied on the balance ofce of probabilities that the plaintiff’s injuries were the result of the accident that occurred on 10th of December, 1993.

However, I am not satisfied that tiver of the vehicle and thed therefore the Trust is wholly liable for any loss caused by the accident. The vehicle involved wasdeot designed for the safe carriage of passengers as it had no proper fixed seats for people, nor was it registered as a public vehicle as the registration certificate shows that the vehicle was registered as a privateivate vehicle. Despite this, the vehwas pwas properly insured with the Defendant. A degree of respolity must must be placed on people who accept to sit at the of open back vehicles without proper fixed seating facilities. I fiat the plainplaintiff tiff was also negligent. I also that the r of drividrivingiving was negligent for the purpose of this claim. He was obviously driving down a hill at a hpeed knowing that it w it was a loose gravel road with a curve ahead of him.

I find theretherefore that there was negligence in theer ofing of the said vehicle. I also that that there wase was contributory negligence on t on the part of the plaintiff for riding at the back of the vehicle not designed and fixed with proper seating facilities. I assess contrry negligencigence at 20%.

The Plaintiff suffered a fracture on the left arm as the result of the accident. The cast applied r hanSopa Sopas Hospital had to be removed on 22nd of FebruFebruary 1984 and on the same date was operated upon to effectuate an intefixation by means of “an meduallary rod&#rod”. It t disclosed osed by they the evidence how long she was hospitalised at the Mambisanda Hospital. The doctor has said in evidence that Levakia Koli is only able to do light work with her lrm but has to limit her worr work considerably due to pain and loss of range of motion. On the resulthe X-ray cond conducted on November 1994 the doctor stor suggested that if there was “non union” of the left ulna, the plaintiff would require boneting to achieve “solid union and pain free function oion of the ulna”. She as the r of the accideccident suffered 15 - 20 percent loss of function of the left arm. The overall pent disabilitbility was put by the doctor at 5 percent.

The Plaintiff is aged abed about 40 years now and mostly involved in the village subsistence economy. She has suffered a fra on e on her left arm. She requhospitalisation foon for some weeks. She has to live alone without the assistance of usband while her husband is carrying out pastoral care to various congregations in his Dist District. If laintiff is right handehande use of the left arm would be limited to lifting and laboulabouring jobs. If she is however laft-h it will affl affect hpacity to work considerably. There is no nce to e to suto support the latter version. Certainly with thercent pent permanisabiwill cause a degree of discomfort. This case is e is also leso less serious than Anna Endeken v The State [1988] PNGLR 286 where thentiff claimed for the left and dominant arm which was totaltotally and permanently useless. An award36,000 was allowedlowed. In Tumotor Vehicles Insuransurance (PNG) Trust [1988-89] PNGLR 638, the plaintiff sued for personal injuries for a fractured wris awar8,484 less a 50 percent contributory negligence.&nce. The instase is also less sess sess serious than the case of Pep v Bakri and The IndepIndependent State of Papua New Guinea [1987] PNGLR 485 in which the plaintiff was awarded K15,000.00 for geneamagene for bone graftgraft and a 50 percent efficient use of an arm. Levakia Koli lost 15st 15 - 20 percent loss of function and an overall 5 percent disability of the use of her left arm. I wousess damages at K10,0K10,000.00.

ECONOMIC LOSSI have mentioned that the plaintiff shall have partial tial use of her injured arm. She will stie it to perforerform light s. S basically ally a villagellager and gardener. Both Counsels&#16ve suggesuggest a figure of K5.00 of earning capacity eek.& The plaintiff is now 40 years. I aca pt a figure of 15 ye15 years for her life expecexpectancy. I s her past economss at K at K875.00. I asse assess a figure of K3,900.00 for the future economic loss.

By the principle laid down in Pinzger v Bouglle Copper Ltd [1983] PNGLR 436. I aan interest rest of&#16f 8% on mount awarded for geor general damages from the date of issuance of the writ of summons.

K1,707.84

width="289" val" valigvalign="top">

K875.00

K14,482.84

Generalneral Damages	K10,000.00
Less 20% contributory negligence	K2,000.00	K8,000.00
Plus interest of 8%
Past EconLoss
Future Economic Loss	&#160v>	K3,900.00
TOTAL

National Court of Papua New Guinea

Koli v Motor Vehicles Insurance (PNG) Trust [1997] PGNC 43; N1556 (16 April 1997)