Oka v Motor Vehicles Insurance Ltd [2001] PGNC 109; N2122 (29 June 2001)

N2122

PAPUA NEW GUINEA

[In the National Court of Justice]

WS. NO. 8 Of 1991

BETWEEN:
BOSIP OKA

Plaintiff

AND :
MOTOR VEHICLES INSURANCE LIMITED

Defendant

Mt. Hagen: Hinchliffe J
2001: June 29

DAMAGES – Personal injuries – Defendant denies liability – Accident between motor vehicles – General damages awarded in the sum of K35,000.00 for severe leg injuries.

Counsel:
P. Kopunye for the plaintiff
M. Pokia for the defendant

29th June, 2001

Hinchliffe J: This matter arises out of an accident between two motor vehicles on the 12th May, 1989, which occurred between 7.30 am and 8.00 am. The scene of the accident was at or around the junction of the Highlands Agricultural College and the Okuk Highway, Mt. Hagen. A motor vehicle registered number AFP 512 driven by one Paul Yapo and owned by Mosslin Kiniwi collided with the other motor vehicle registered number ZGN 806 owned by the Independent State of Papua New Guinea and driven by the plaintiff, who sustained personal injuries.

The defendant denies liability in that it claims that no proper identification of the vehicle or its insurance standing has been made and also that the plaintiff’s driving was such that he was negligent and caused the said accident or at least he contributed to it.

In relation to the said vehicle, registered number AFP 512, there should be no query as to its identification, ownership, insurance and so on. I say that because all the particulars of same are set out in a Road Accident Report which is annexure "A" to the affidavit of Constable J. Lalaona, sworn on the 25th November, 1997 and filed on the 26th November, 1997. The affidavit was tendered into evidence by consent of both parties and in fact the said Constable was cross-examined by the defendant’s Counsel. Most of the cross-examination was directed to the manner in which the accident occurred. The defendant now seems to be raising the issue of insurance and like matters in its lawyer’s written submissions. I am of the view that they are matters that should have been raised in cross-examination, but they were not. In any event the Road Accident Report was never objected to by the defendant’s lawyer and I am of the view that it is now far too late. I am well satisfied that the defendant is the correct party in these proceedings.

There have been two versions given as to how the accident happened and to my mind there is a possible third version that has not been referred to by Counsel. Before I go to the different versions I should set out some facts that seem not to be in dispute.

1. That the plaintiff, an employee driver for the Department of Civil Aviation, was driving the vehicle registered ZGN 806, with two passengers seated next to him.
   
2. That it was between 7.30 am and 8.00 am on the 12th May, 1989 when the accident occurred.
   
3. That the plaintiff’s vehicle was travelling behind the other vehicle shortly before the accident.
   
4. That the accident occurred on the Okuk Highway about 8 Kilometres from Mt. Hagen whilst the two vehicles were travelling in the direction of Kudjip, ie. away from Mt. Hagen.
   
5. That the plaintiff suffered injuries due to the said accident.
   

The first version of events was that as the plaintiff approached the defendant vehicle from behind, the plaintiff attempted to pass the other vehicle on the left. The defendant vehicle had indicated to turn left and that the plaintiff had not seen the left indicator in action. As the plaintiff proceeded to pass on the left, the defendant vehicle turned into the plaintiff’s vehicle causing damage to the left side of the defendant vehicle and to the driver’s side and front of the plaintiff’s vehicle thus causing injury to the plaintiff who was in the driver’s seat.

The second version of events was that the defendant vehicle indicated to turn right and that when it commenced to proceed to turn the plaintiff commenced to pass the vehicle on its left. Suddenly, without warning, the defendant vehicle broke its right hand turn and then swung back and whilst doing so smashed into the right and front sides of the plaintiff’s vehicle, also causing damage to the left side of the defendant vehicle.

The third version, which was not raised by Counsel, but something that went through my mind, goes as follows. That the driver of the defendant vehicle, on seeing the plaintiff’s vehicle behind him engaged his right indicator to call the plaintiff past. That is a dangerous practice which we see not only in Papua New Guinea but also some other countries around the World. It is a practice that is unlawful and it should not be encouraged. It can be confusing as to what the real intention of the front vehicle is. If it did occur in this case then quite clearly the plaintiff thought that the defendant vehicle was about to turn right when, in fact, all it was doing was indicating to the plaintiff that it was clear to go past. Chaos then arose as the plaintiff went to the left of the defendant vehicle when its driver expected the plaintiff to pass on its right. Hence the collision. As I have said, Counsel did not raise the third version of events but I am of the view that it should be mentioned.

Two of the passengers in the plaintiff’s vehicle had previously sworn affidavits for the defendant’s Investigator that they saw the defendant vehicle indicate to turn left and at more or less the same time the plaintiff proceeded to attempt to pass the defendant vehicle on the left. The collision then occurred.

At trial the two said witnesses stated that in fact the defendant vehicle indicated to turn right and that after commencing its right turn it turned back to the left thereby coming into contact with the plaintiff’s vehicle as it was going through on the defendant vehicle’s left as the defendant vehicle was negotiating its right hand turn.

The plaintiff also swore an affidavit at the request of the said Investigator and stated that he saw a right hand indicator engaged on the defendant vehicle and that when it commenced its right hand turn he commenced to pass on its left side. The defendant vehicle then turned back to the left and smashed into the right side of the plaintiff’s vehicle causing injury to the plaintiff and damage to the vehicle that he was driving.

At trial the two passengers in the plaintiff’s vehicle were adamant that the defendant vehicle indicated to turn right, not left, and that is what they told the representative of the Investigating organisation. I should say at this time that the defendant only called one witness to give evidence and that was one Robin Yabara who is the proprietor of the firm, Complete Investigations and Research. The defendant did tender into evidence the three said affidavits of the plaintiff and his two passengers.

There appears to be some dispute as to whether or not the affidavits were read back to the said deponents and there is no doubt that there was a blank left in the affidavits relating to the value of pigs handed over, at a compensation ceremony, to the plaintiff. I must say that one would have thought that if the affidavits were read back to the deponents then the blanks relating to the value of the pigs would have been raised. After considering all of the evidence I am not satisfied that the contents of the affidavits were made completely clear to the deponents before signing and on that basis I do not accept their affidavits as being either accurate or reliable. That is, the affidavits drafted by the defendant.

On the other hand the affidavits drafted for those same witnesses by the plaintiff’s lawyer were accurate and thoroughly understood by the deponents before they signed. I far prefer the evidence of the plaintiff and his witnesses. I am satisfied on the balance of probabilities that on that unfortunate morning of the 12th May, 1989, the driver of the defendant vehicle indicated to turn right off the Okuk Highway when the plaintiff was driving his vehicle fairly close behind. I do not accept any suggestion that the plaintiff tried to pass the defendant vehicle on the left when the defendant vehicle had indicated to turn left or that the plaintiff attempted to pass on the left even if the defendant vehicle had made no indication at all. That, to my mind, would have been unlawful and very bad driving on the part of the plaintiff. There is nothing to suggest that the plaintiff was a bad driver, in fact he had been driving for the said Department for some years, with, it would appear, a good driving record. To pass on the left, as suggested, would be most unusual and quite dangerous.

I am further satisfied that the plaintiff, when it was clear to do so, commenced to pass the defendant vehicle on the left as it was making its right turn. For an unknown reason the driver of the defendant vehicle did not complete his right turn but in fact swung back to the left and collided with the right side and front of the plaintiff’s vehicle as it was passing the defendant vehicle in a lawful manner. The two vehicles then careered to the side of the road and came to a halt. The plaintiff was severely injured. I find the driver of the defendant motor vehicle fully responsible for the accident.

There is no doubt at all that the plaintiff suffered serious injuries, in particular to his legs.

Dr. Allan Kulunga swore and filed an affidavit on the 24th May, 1996 annexing his Medical Report dated the 21st May, 1993. He referred in particular to the compound fracture to the plaintiff’s left leg and he stated that the plaintiff had received intermittent treatment for three years since the accident. He also stated as follows, "He has 100% loss of his job as a driver. But has 25% permanent disability especially as mobility and other minor distress."

Dr. Jacob Ollapallil swore an affidavit (Exhibit "C") on the 28th May, 1996 which was filed on the 11th June, 1996. Annexure "A" to the affidavit is a Medical Report of Dr Ollapallil dated 20th June, 1990. He said, inter alia, as follows:

"........was admitted on the 12.05.89 following a motor vehicle accident and sustained fracture of the both legs. Since then the patient was under my care.

The left fracture was a compound and with lot of tissue loss and bony loss. Repeated operative procedures to fix the bone and soft tissues were done.

At present the bone is healing well. The final report on the detailed injuries and disabilities will be given later."

In annexure "B" to Dr. Ollapallil’s said affidavit, he indicates that "major operative procedures undertaken" and the "disabilities and loss of efficient function." Apart from other findings the doctor says that there is a 30% loss of efficient function of the left lower limb and a 5% loss of efficient function in the right lower limb

On the 6th June, 2000, Dr. Kulunga presented a further Medical Report and this is an important Report because it is the latest assessment available of the plaintiff. The said Medical Report reads as follows:

KINTIP SURGERY

Dr. ALLAN KULUNGA M.B.B.S., M.MED., SURGEON

P.O. Box 586

Mount Hagen 281, W.H.P.

Papua New Guinea

Telephone: [phone]

N1623PCK/ed. . . Your Ref.

20/ak/5-2000. . Our Ref.

06/06/2000

PETER KOPUNYE LAWYERS

P.O. BOX 687

MT. HAGEN – WHP.

MEDICAL REPORT

REF: BOSIP OKA. M/A.

PRESENTING HISTORY

I believe this man was injured in a motor vehicle accident on the 15/05/89. He sustained;-

(a) Both lower leg injuries
(b) Hip contusion
(c) Generalized contusion

HISTORY OF MEDICAL TREATMENT

Further clinical and radiological examination revealed;-

(a) Bilateral compound fractures of the tibia and fibula.
(b) Hip joint contusions and minor general abrasions.

He was therefore managed with;-

(a) Primary wound debridment
(b) Close reduction
(c) Antibiotics
(d) Daily dressing

He had numerous wound debridment, bone graft and skin graft over the leg especially left leg over many months. He was discharged after almost two years of bone and skin graft as well open reduction with internal fixation of left tibia.

PAST MEDICAL HISTORY

Not significant

OCCUPATION

Driver with PTB at the department of Works.

CURRENT PRESENTING COMPLAINTS

- Legs feel weak
- Left leg feels short
- Painful on taking heavy loads
- Not able to walk long distance or rough travelling
- Not able to drive vehicle
- Not able to take part in village activities

PHYSICAL EXAMINATION

General Appearance

Man in his early fifty’s (50’s), limping into surgery but without any distress.

VITAL SIGNS

Intact

HEAD & NECK

No evidence of trauma

SYSTEMS

CNS, CUS, Resp, GIT, GUT

Normal.

EXTREMITIES

Upper Right & left

Normal

Lower Left

- Hip joint movement intact
- Quadricepts intact
- Knee joint intact
- Most of anterior tibia had been skin graft with areas of retation flaps
- Good callus has occurred with union
- Wasting of calf muscle (L31 cm – R 35 cm)
- Loss of sensory over skin graft
- All ankle joint movements are still and resistant
- Intact neourvascular

Lower Right

- Hip joint intact
- Quadricepts intact
- Knee joint intact
- Mid anterior tibia also skin graft
- Lateral bowing of tibia
- Good union has occurred
- Leg is short by two centimetres. (R-77cm L-39 cm)
- Ankle joint intact
- No neourovascular deficit

INVESTIGATION

Ex-Ray (F-3098 –18-5-200) shows;-

(a) Left tibia has plate and screws in place
(b) Good callus has formed of left fracture
(c) Some osteoporosis of upper tibia of left leg
(d) Good union right fractured tibia and fibular with over capping of fractured end.

PROGNOSIS

The man suffered severe multiple compound fractures of both tibia and fibular of the lower leg with loss of some bone. He had under gone open reduction with internal fixation with bone graft of the left leg with numerous skin grafts and rotation flaps over several years.

CONCLUSION

He has shortening of right leg from over riding of fracture end as a result of incomplete reduction. He has screw and plating of the left tibia with bone graft of the fracture. He may remove the plates and screws some days if he wishes.

He is unlikely to drive heavy vehicle as he did before compounded with psychological problem when he is aware of years of operation on the legs. His shortening of the right tibia is due to over lapping of the fracture of the left leg. I believe he has 40% (forty percent) permanent disability in terms of strength of tibia, ankle joint stiffness and cosmetic disfigurement of the leg of the right he has 2½ (two and half percent) loss of skin and disfigurement.

He has shortening of two centimetres is insignificant to cause him any problem. He may develop osteomyelities later of anyone of the leg or both in rare cases.

Thank you,

Yours faithfully,

__________________

DR. ALLAN KULUNGA

The latter Report clearly demonstrates the enormity of the injuries received by the plaintiff. The plaintiff himself gave evidence at trial and stated, inter alia, as follows:

"I was smashed in the motor vehicle. I was still in it. Bones were broken, leg bones, I didn’t know what happened." When asked how long he stayed at the hospital he said "for one year and then I went back to the village. I had plaster on my legs and then I went back to the hospital. I was released in 1992." The plaintiff went on to say that his Doctor was Dr. Jacob and that he also saw Dr. Kulunga. The plaintiff, when asked how many operations he underwent, answered, "Seven". Part way through the examination in chief the questions and answers went as follows:

"Q. Did you go back to DCA and ask to keep working?

1. Yes. They said that I had bad legs from the accident and that they would not employ me.
   
17. Can you drive a motor vehicle now?
1. No.
   
17. Do you now stay at the Village?
1. Yes.
   
17. Can you drive a motor vehicle now?
1. No.
   
17. What sought of jobs do you do at the Village?
1. Nothing I can’t make gardens or break firewood.
   
17. Why?
1. My legs are unbalanced and I can’t sit down properly.
   
17. Can you do light jobs?
1. I can sit down to work but I can’t stand to work. All the bones pain. Iron was put in. The skin was cut and transplanted. One leg is now shorter then the other."
   

At trial, the plaintiff showed his leg injuries to the Court and after seeing them I am not surprised that the plaintiff is now reluctant to wear short pants as he is embarrassed about people looking at his legs which are very badly scarred and quite unsightly. The right leg also had what appeared to be a bone poking out under the skin.

As is usual in this type of case, Counsel referred me to a number of past cases involving leg injuries. Clearly there are not many, though, involving fractures of both legs. Past cases are a very useful guide in assessing damages but I remind myself that every case is different. In the matter of George Kiak v. Tora Enterprises Pty Ltd and The Motor Vehicles Insurance (PNG) Trust 1986 PNGLR 265, the plaintiff suffered fairly similar injuries to the plaintiff in the present case. He suffered a severe compound fracture to the lower third of the left fibula and tibia involving substantial skin loss with the leg being saved from amputation but he now suffers a permanent disability of about 50 per cent with severe scarring and a prognosis for arthritis and arthrodesis of the ankle joint; he is required to wear a built up shoe and caliper and walks with a stick and a limb. General damages of K29,000 were awarded.

Another similar case in that of Alfred Moia v. The Independent State of Papua New Guinea N677 (W.S. No 9. Of 1987, delivered on the 19th August, 1988.) K20,000 for general damages to the plaintiff who suffered a fracture of the tibia and fibula resulting in a malunion of the fractured bones.

I have no doubt at all that the plaintiff suffered severe injuries to his legs back in 1989. For three years after that he was being treated with skin grafts and so on and had a number of operations together with hospital stays. He clearly will not drive again and he can only do very light work in the village. His right leg is now 2 cms shorter than the left leg and both legs are severely scarred and an embarrassment to the plaintiff. The said most recent medical report of Dr. Kulunga speaks for itself in that the plaintiff has permanent injury and it would seem that his condition may well worsen as the plaintiff grows older.

I am satisfied on the evidence (in particular that of Dr. Kulunga) that the plaintiff was about 41 years old at the date of the accident.

The two said past cases were decided in 1986 and 1988 respectively and of course that was sometime ago now. The purchasing power of the kina has declined considerably since then and I am of the view that that must be taken into consideration. I am satisfied that this case is very similar to George Kiak (supra) and I am assisted by it when coming to a decision on damages for pain and suffering. I therefore Order that the appropriate figure be K35,000.00.

Past Loss of Wages

From the 3rd April, 1991 to 29th June 2001. That is a period of ten years and approximately three months, from the time of the plaintiff’s last pay up until today. I calculate that, in round figures, at 267 fortnights. So therefore there is a fortnightly loss of K130.96 over 267 fortnights which comes to K34966.32. The plaintiff is entitled to 4% interest on past economic loss and I cite the case of Wallbank v. The Independent State of Papua New Guinea (1994) PNGLR 78.

Therefore I arrive at a final figure for past loss of wages in the sum of K49302.50 (including interest at K14,336.18).

Counsel for the plaintiff, in his final submissions, mentions a 10% CPI adjustment. There is no evidence before me in relation to that and therefore such an adjustment is refused.

Future Loss of Wages

The plaintiff’s future loss of wages would be for two years which would then bring him up to the retiring age of 55 years. I calculate the figure as K130.96 by 52 fortnights which amounts to K6809.92 less 10% for contingencies of life which amounts to K6128.93.

The plaintiff is also claiming 8% interest under this heading. I am unable to agree. If the plaintiff is to receive his future loss of wages in a lump sum, then to that extent he has received his wages in advance. I therefore am unable to see why the plaintiff is entitled to 8% interest on that amount. Of course an award of interest makes sense when considering past loss of wages.

Economic Loss in Loss of Subsistence Farming.

The Plaintiff’s lawyer has put a number of past cases to me and I do not disagree with him when he suggests that K5000 is not an unreasonable figure. The plaintiff will be unable to do any heavy work again back in the village and will, for the rest of his working life, only be able to undertake light work and that is only when seated.

Customary Payments.

Any payment made under customary compensation would have to be deducted from the damages awarded to the plaintiff. In this case there was a .difference between the parties as to whether it was 15 pigs or 50 pigs handed over to the plaintiff together with K5000 cash. I am well satisfied on the evidence before the Court that 2 large pigs and 13 smaller pigs together with K5000 in cash was handed over to the plaintiff at a compensation ceremony. Also on the evidence I make the following calculation:

1. Cash money received K5000.00
2. Two pigs at K400 each K800.00
3. Thirteen pigs at an average of K90 each K1170.00

Total K6,970.00

Special Out of Pocket Expenses

I allow the sum of K250 as per the receipts tendered in Court.

I Order that there be judgment for the plaintiff in the sum of K100,000 plus costs made up as follows.

General damages for pain and suffering and loss K35,000.00
of amenities of life.

Interest at 8% (from the date of issue of the Writ
until today.) K29,399.00

Loss of past wages (including interest) K49,302.50

Loss of future wages K 6,128.93

Economic Loss of Subsistence Farming K 5,000.00

K124,830.43

Less customary payment K 6970.00

TOTAL K117860.43

As the limit to be awarded in this type of action is K100,000.00, I so Order. I further Order that the defendant is to pay the plaintiff’s costs, if not agreed then they are to be taxed.

Orders accordingly,
________________________________________________________________________

Lawyers for the plaintiff, Kopunye Lawyers

Lawyers for the defendant, White, Young & Williams.