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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS. 302 of 2000
ANDREW MOKA
Plaintiff
MOTOR VEHICLE INSURANCE
Defendant
LAE : Kandakasi J
2001 : 11 April
: 18 May
NEGLIGENCE - Liability – Collision between two vehicles - First vehicle broken down in the inside line of a double lane road – Second vehicle driven under influence of alcohol collided into first vehicle – Plaintiff’s conduct – Doctrine of res ipsa loquitur applied - Plaintiff guilty of 50% contributory negligence.
DAMAGES – Personal injuries – Particular awards of damages – Comminuted fracture of left tibia and fibula and minor head injury with no disability – 40% estimate loss of efficient use of left leg – Male aged 32 – Security Guard – Assessed K23, 000.00 for general damages and K29, 932. 88 for economic loss before contributory negligence.
Cases Cited:
Porter v. Morrison-Knudsen International Co. Inc. & Anor [1973] PNGLR 240
Bepiwan Ambon v. MVIT N1116.
Alfred Moia v The State [1988] PNGLR 299
Tambi –v- The State [1988-89] PNGLR 648,
Kiak –v- Tora Enterprises Pty Ltd &MVIT [1986] PNGLR 265,
Alphonse Kopi v the State [1994] PNGLR 475
Paim –v- The State [1988-89] PNGLR 651
Rock Kuri v. MVIT (unreported and unnumbered judgement delivered on 19th November 1998)
Margaret Oii v. MVIT (unreported and unnumbered judgement delivered on 15th of October 1998)
Richard Tom Mandui –v- The Commissioner of Corrective Institution Services and The State [1996] PNGLR 187
Korrolly, Tovue and Kolita v. MVIT [1991] PNGLR 415
Rose Terema v. MVIT [1994] PNGLR 41.
Counsel:
Mr. I. Shepherd for the plaintiff.
Mr. V. Mirupasi for the defendant.
18 May, 2001
KANDAKASI, J: The Plaintiff is claiming damages for personal injuries allegedly received from a motor vehicle accident on the 13th of July 1996 along the Waigani Drive outside the old Germania Club. He claims the negligent driving of a motor vehicle, Toyota Corolla registration No. BAH 617 ("the Corolla") which collided into a vehicle he was in and broke down on the road due to an unspecified mechanical fault ("the first vehicle") caused the accident. The Defendant is being sued under s. 54 of the Motor Vehicles (Third Party Insurance) Act (Chp. 295) ("the MVIT Act), which allows such claims against it. The Defendant denies liability and pleads contributory negligence against the Plaintiff in the alternative and is taking no other issues.
Issues
The main issues for determination are; (1) was the driver of the Corolla negligent and therefore the Defendant is liable to the Plaintiff in damages, (2) Did the Plaintiff contribute to his injuries by his own negligence, and (3) if the Defendant is liable what are the Plaintiff’s damages?
The Evidence
The Plaintiff admitted into evidence (exhibit "E") an affidavit sworn by him on 4th April 2001, excluding paragraphs 6 and 7 which were successfully objected to by the Defendant. He also gave some oral evidence under examination in chief and cross-examined.
The Plaintiff’s story is this. On 13th July 1996, he and a cousin brother, Mark Wara were travelling along the inside lane on the Waigani drive in his cousin’s vehicle and the vehicle broke down due to an unspecified mechanical problem outside the old Germina Club. So they got out of the vehicle to push it to the side. Before they could do that, they saw the Corolla travelling toward them on high speed. The Plaintiff was sure the Corolla was going to collide into them. To avoid being hit, he and his cousin moved to the front of their vehicle. The Corolla then collided onto the back of their vehicle. That resulted in serious injuries to both of them. Mr. Wara, later died and the Plaintiff recovered from the injuries they respectively sustained from the accident.
The Plaintiff’s injuries were a fractured leg, cuts to his face, left hand, wrist and thigh. He also sustained a broken nose injury and was knocked unconscious. He recovered from the Port Moresby General Hospital. He was hospitalised and treated there until discharged some six weeks later. He was readmitted on 27th of January 1997, because his fracture leg injury failed to reunite. He underwent a corrective surgery for that and was later discharged with a long course of antibiotics and advice to under go physiotherapy. Eventually, his injuries and disabilities stabilised and was left with an estimated 40% permanent loss of efficient use of his left leg.
Most of the questions in cross-examination were centred around the way and manner in which the Plaintiff placed himself on the road and the steps he took and could have taken to avoid sustaining the injuries, his residual disabilities and his employment. The Plaintiff maintained his story and stated further that, the accident happened in the night between 8:30 and 9:30pm and the road was busy with many cars travelling on either side.
A number of documents were also admitted into evidence for the Plaintiff with the Defendant’s consent. They were, (1) a discharged summary from the Port Moresby General Hospital - Exhibit ‘A’, (2) an interim medical report by Dr. M. Garo dated 26th March 1997 - Exhibit ‘B’, (3) a final medical report dated 21st April 1998 by Dr. Ikau Kevau - Exhibit ‘C’, (4) original of clarification letter dated 29th May 2000 by Dr. Ikau Kevau – Exhibit ‘D’, (5) a copy of Police Accident Report consisting of 2 pages - Exhibit ‘F’ and (6) a District Court order and Certificate of conviction dated 16th July 1996 confirming a conviction and sentence of a Martin Vele for dangerous driving causing bodily harm to one Andrew M. Moka - Exhibit ‘H’.
These documents supported the plaintiff’s evidence. In addition to that, they confirmed that police investigated into the accident and charged the driver of the Corolla, Martin Vele. Mr. Vele was found guilty of dangerous driving causing injuries to the Plaintiff. The certificate of conviction established a prima facie but rebuttable case of negligent driving resulting in injuries to the Plaintiff. The Defendant called no evidence. So the plaintiff’s evidence stood unrebutted.
Findings
On the above evidence, I find that the plaintiff was a passenger in the first vehicle, driven by Mark Wara on 13th July 1996. Due to an unspecified mechanical problem, that vehicle broke down on the inside lane along the Waigani Drive outside the former Germania Club. I also find that Mr. Martin Vele negligently drove into the first vehicle. The certificate of conviction (Exhibit "H") confirming the negligence of Mr. Vele was not rebutted by any evidence from the Defendant. Mr. Vele’s negligent driving resulted in serious injuries to both Mr. Wara who later died and the Plaintiff, who sustained injuries from which he has recovered but with some disability. The Defendant is thus liable in damages to the plaintiff for the negligent driving of the Martin Vele. The Defendant’s liability is by virtue of s. 54 of the MVIT Act.
I do not accept the Plaintiff’s claim that he and Mr. Wara were in front of the first vehicle when the collision occurred. This is because, if indeed they were in front of their own vehicle, that vehicle could have protected them from being injured. There is no evidence of how it was possible for the Corolla to by pass their vehicle and cause injuries to them. There is no evidence of their vehicle being smashed into pieces or something like that, before the Corolla could reach them. Further, there is no evidence of the first vehicle being damaged and how that could in turn have led to he and his cousin’s injuries and the eventual death of his cousin.
I find either of two possibilities was the case. Firstly, the Plaintiff and his cousin were pushing their vehicle from the back of their vehicle, which exposed them to the risk of being hit, by an other vehicle and that is what happened. Or secondly, they were in the process of abandoning their vehicle when it was unsafe to do so and were hit by the Corolla. The onus was on the Plaintiff to show exactly how the accident led to his injuries but he failed to do so. I call on the assistance of the doctrine of res ipsa loquitur or let the thing (accident) speak for itself to help determined how the plaintiff could have sustained his injuries. In so doing, I note the Defendant has pleaded that doctrine and the doctrine has been applied in a number of cases already, when there was no clear and direct evidence of what could have really happened in the context of motor vehicle accidents. See for example Porter v. Morrison-Knudsen International Co. Inc. & Anor [1973] PNGLR 240 and Bepiwan Ambon v. MVIT N1116.
Going by the above doctrine, I find that the Plaintiff either placed himself in the way of an on coming motor vehicle or positioned himself at a point that was unsafe for him to do so. I therefore, find that he failed to exercise reasonable care and attention for his own safety. He was thus partly responsible for his own injuries. I find that, if the plaintiff exercised reasonable care and attention for his own safety, he would not have sustained his injuries. He could have, for example, run away very quickly in a save direction from the way of the on coming traffic, or give a fore warning of some sort to other users of the road of the presence of their vehicle. They could have even waved the Corolla away from their vehicle. Further, they could have taken steps to clear other traffic first before trying to push their vehicle to the side. There is no evidence of any or all of these steps being taken. I find the plaintiff’s conduct was equally blameworthy as that of Martin Vele in the particular circumstances of this case. It is therefore, only fair and reasonable, to also find that the plaintiff contributed to his injuries by his own negligence up to about 50% because if he took all or any of these or other steps, he could have avoid the injuries.
Damages
The plaintiff is an adult male aged about 33 years (32 years at the time of filing of the Writ). I was employed by Securimax for 2 years prior to the accident and did not continue with that employment after the accident. There is no pleading and evidence to support his claim in his submissions that he is married and was supporting his family from the income he received from his employment with Securimax. I therefore reject that part of his submissions.
(a) General Damages
As noted earlier, the Plaintiff sustained a fracture leg injury and other laceration injuries to some other parts of his body. He was hospitalised and treated and discharged twice. After the second discharge from hospital, Dr. Kevau reviewed the Plaintiff’s condition on 21st April 1998. At that time, the plaintiff complained of occasional episodes of severe headaches (migraine) associated with dizziness with a sensation of discomfort. He did not however, experience any seizures or fits. Dr. Kevau found no associated power or sensory loss but found that the complaints were the genuine sequalae of severe head injury, which is known as post traumatic syndromes. He then estimated the plaintiff’s disability to be at 10 percent for that part of his body.
The doctor found that the plaintiff was still on crutches, his attempts to walk independently caused intense pain over the fractured site of his left leg with weakness over the affected limb. Consequently, he could not support any full weight bearing. There was moderate wasting of the left thigh muscle because of disuse. No recurrent neurological deficits were found save for a large scar from the compound wound over the anterior-medial surface of his left leg. The Plaintiff was severely restricted from walking long distances and standing for longer periods. He could not sit with his legs folded or squat. His knee flexion was 40 degrees with full extension of 30 degrees. Lucency or gaps were present in some areas of the fractured site suggesting a non-union. There was some degree of post traumatic osteoporosis, which partly explained his on going pain, weakness and inability to bear weight fully on his leg.
The plaintiff was recommended to continue his physio therapy exercises. At that time, he had an estimated 40 % loss of efficient use of his left leg and an estimated 5% for cosmetic disfigurement due to the multiple scars over his face and body.
In May 2000, the plaintiff was again reviewed by Dr Kevau, on the basis of which he gave his letter of 29th May 2000 (exhibit "D"). According to that report, the plaintiff was mentally sound and he was walking unaided. By that time, he complained only of pain on walking long distances and still could not run or even jog as they tended to bring intense pain and discomfort when direct pressure was exerted onto the fractured limp. Clinically, the bulk of the muscles in the vicinity had not improved significantly, hence, the power of the leg remained poor. Flexion and extension of the knee had improved minimally. The doctor opined that the disabilities had not improved from his last examination and assessment. He therefore re-affirmed his earlier estimated of 40% loss of efficient use of the left leg and recommended against any corrective surgery.
Based on the medical evidence, I find that the plaintiff has fully recovered from his head injury and the scars. His only disability is the 40 % estimated loss of the efficient use of his left leg. The Plaintiff accepts that position in his submissions filed on the 11th April 2001 from paragraph 4 onwards which proceeds on the basis of a fractured leg injury and residual disability to that part of his body. Hence, I will assess his damages on that basis.
The Plaintiff points to the injuries and the treatments he received and the residual disability of 40% loss of efficient use of his left leg and claims K40, 000.00 for general damages. He submits that, he is now unable to walk properly and is incapable of remunerative employment. Further, he argues that his other pre accident activities have been curtailed and he is unable to even assist in the family garden. Furthermore, he submits that, his enjoyment of amenities of life has been severely curtailed. These later aspects have not being pleaded and there is no evidence of his other activities except being employed has a security guard. I therefore reject these claims before going any further.
(i) Comparable Verdicts
The Plaintiff relies on three cases. The first is Alfred Moia v The State [1988] PNGLR 299, where a 36 year old plaintiff (39 at trial) and employed as a bus driver, suffered fractures to his tibia and fibula to both of his legs. His disabilities included a shortening of his left leg, wasting and some scarring. The medical evidence estimated a 75% and 50% loss of efficient use respectively of both his legs (left and right) both below the knee for heavy manual labour. That was due to a non-union of the fractures. He was awarded K20, 000.00 in general damages.
The second case is Tambi –v- The State [1988-89] PNGLR 648, where the plaintiff a male, aged 32 (36 at trial) employed as a driver, and sometimes working in his village garden suffered a fracture of his femur which required pinning and was slow to heal. He suffered muscle wasting and osteoarthritic changes and a 35% loss of the efficient use of his leg. He was unable to continue his employment as a driver and was severely restricted in his gardening activities. He was awarded K15, 000.00 for general damages.
The final case is, Kiak –v- Tora Enterprises Pty Ltd and Motor Vehicle Insurance (PNG) Trust [1986] PNGLR 265, where the plaintiff a Grade 1 Magistrate aged 35 years suffered a penetrating injury to his leg causing a severe compound fracture to his lower third of the left fibula and tibia. There was substantial skin loss with damages to the muscles, arteries and veins. The plaintiff underwent 8 operations with the leg being saved from amputation. He suffered a permanent disability of about 50% with serious scarring and prognosis of arthritis and arthrodesis of the ankle joint. He was required to wear a built up shoe and calipher. At the time of the trial, he walked with a stick and limp. He was awarded K29, 000.00 in general damages.
The above cases were referred to by Woods J., in Alphonse Kopi v the State [1994] PNGLR 475. In that case, the plaintiff escaped from the Baisu CIS in Mt Hagen and was shot at severing his Achilles Tendon. Medical evidence estimated the Plaintiff’s disability at 50%. At page 479 of the, His Honour referred to above cases and assessed general damages at K14, 000.00. In so doing, the case was regarded closer to Paim –v- The State [1988-89] PNGLR 651, where a 50 year old man suffered a 50% loss of the efficient use of his knee and the Court assessed general damages at K8, 000.00.
The Defendant referred to two unreported and unnumbered judgements of Woods J. The first is, Rock Kuri v. MVIT (19th November 1998), where the Plaintiff sustained head injuries and multiple lacerations to the face and femoral fracture in the left leg. He under went corrective surgery and recovered with a 2 cm shortening of the left leg and some pain, which were expected to continue. At the time of the trial, he walked with a pronounced limp. The medical evidence estimated his loss of efficient use of the affected leg at 40%. General damages for him was assessed at K20, 000.00.
The second case is Margaret Oii v. MVIT (15th of October 1998), where the plaintiff a village woman, suffered shock, cuts to her legs and internal bleeding as well as injuries to her back. She suffered some disability in her mobility due to the leg and back injuries. The judgement does not state the estimated percentage of loss she suffered. The Court awarded a global amount of K17, 000.00.
In my view, more serious leg injury cases are cases in which there is a 100% loss of the efficient use of a leg or both of the legs. Cases, which fall into that category, are amputee cases, both below and above the knee. They attract general damages at K40, 000 maximum as in Richard Tom Mandui –v- The Commissioner of Corrective Institution Services and The State [1996] PNGLR 187 where the plaintiff also suffered other injuries and disabilities and suffers other set backs in his life. At the lower end of awards in leg amputation cases is K25, 000.00 as in Korrolly, Tovue and Kolita v. MVIT [1991] PNGLR 415 and K26, 000.00 as in Rose Terema v. MVIT [1994] PNGLR 41.
(ii) Present Case
In assessing an appropriate amount of general damages for the Plaintiff in this case, I note that the injuries and disabilities suffered by the plaintiffs in Richard Tom Mandui –v- The Commissioner of Corrective Institution Services and The State (supra), Korrolly, Tovue and Kolita v. MVIT(supra) and Rose Terema v. MVIT (supra) Alfred Moia v The State, (supra), Kiak –v- Tora Enterprises Pty Ltd and Motor Vehicle Insurance (PNG) Trust (supra) and Alphonse Kopi v the State (supra) are more serious. These cases represent awards at the higher end of the scale and for more serious injuries, disabilities and losses.
I consider the present case comes closure to Tambi –v- The State (supra) and very close to Rock Kuri v. MVIT (supra). Hence, I consider that an appropriate amount of damages for general damages in this case has to be above K15, 000.00 and up to or slightly above K20, 000.00. Allowing for the rise in inflation and the decrease in the purchasing power of the Kina, I consider an award of K23, 000.00 for general damages for pain and suffering reasonable and I make an award for that amount.
(b) Economic Loss
Securimax employed the plaintiff as a security guard for about 2 years prior to the accident. From that employment he earned about K160 per fortnight and when he did overtime K200 per fortnight. He claims, he would have continued to be employed at that rate had it not been for the accident. He therefore, argues for an award of K20, 080.00 for past economic loss and a further K59, 228.00 for future economic loses.
The Plaintiff’s claim is based on a weekly loss of K80.00 over 23 years being his remaining working life given that, he is 32 years old now. The claim does allow for the usual contingencies of life, such as early retirement or death.
That claim has a number of errors. Firstly, the weekly loss claim of K80.00 is K10 more than the pleaded amount of K70.00. Secondly, in his statement of claim, the plaintiff pleads that he was 32 years old at the time of the issue of the Writ. The Writ was filed on the 22nd of March 2000. A year has since past. Hence, the plaintiff is about 33 years old now with a remaining working life of 22 years and not 23 years. Thirdly, there is no evidence confirming that the Plaintiff would have continued in his pre-accident employment if it had not being for the accident for the balance of his working life. Fourthly, the plaintiff produced no evidence of trying to return to his pre-accident employment or seek alternative employment. Further there is no evidence say from his former employer, indicating, (1) when the Plaintiff got terminated (if he was) from his pre-accident employment and (2) that he was terminated because of the injuries and disability he received from the accident. Furthermore, there is no evidence of the Plaintiff not receiving his pay during the period of his incapacity. Finally, it assumes that the plaintiff is totally incapacitated when in fact he only has a 40% loss of efficient use of his left leg.
The onus was on the Plaintiff to firstly, properly plead with sufficient particulars the full extent of his loss and then produce the appropriate evidence, to succeed in his claim against the Defendant. The plaintiff failed to discharged fully either or both of those obligations. For example, he failed to specify in the pleadings and establish by appropriate evidence when he left his employment and therefore his source of income to form the basis to calculate is past economic loss. The Plaintiff’s own submissions do not help either. It fails to show how the figure of K20, 080.00 was arrived at. The pleadings do not even assist on the issue.
Given the above, I am not satisfied that the Plaintiff has made out his claim for past economic loss. There is no evidence of him missing out on his pay during the period of his incapacity. The law for example under the Workers Compensation Act, generally allows for a payment of salaries during the period of an employee’s incapacity. If it was not the case, for the Plaintiff, then the onus was on the Plaintiff to establish that by appropriate evidence but he failed to do so. Hence, in the absence of any evidence to the contrary, I find that the Plaintiff received his salaries during the period of his in capacity and until he left his pre-accident employment, whenever that might have been. In the circumstances, I decline to award any damages for past economic loss either as claimed or at all.
Now moving on to future economic loss, I note the evidence shows that the plaintiff is partially incapacitated. He has an estimated 40% loss of the efficient use of his left leg. There is no evidence to show how that loss affects him as a whole. In the absence of any evidence to contrary, I am of the view that the general impact on the Plaintiff could be lower that 40% because he is otherwise fit and able. Thus, he could have easily found an alternative employment and failing that, return to his village subsistence level. There is no evidence of the Plaintiff attempting to either return to his pre-accident employment or find an alternative one.
A plaintiff is always under an obligation to mitigate his loss. In a case like this, there should be evidence of the attempts the plaintiff has made to secure alternative employment after first establishing that his pre-accident employment was terminated or lost as a result of the injuries and disabilities he sustained. The Plaintiff in this case appears to have chosen to leave his employment. That is supported by the lack of any evidence confirming his termination because of the injuries and disabilities. There is also no evidence of the plaintiff having tried to be engaged in other aspects of his former employer’s operations. Likewise, there is no evidence of attempts, if any, the plaintiff might have made to secure other employment.
The obligation to mitigate one’s loss is well settled in our jurisdiction. Where a party fails to do so, he stands the risk of having his damages reduce by his failure. That has been made clear in a number of cases. An example of that is the Supreme Court decision in Motor Vehicle Insurance (PNG) Trust –v- James Pupune [1993] PNGLR 370 at 380. In that case, the Supreme Court upheld an appeal against a failure of the trial judge to deduct part of the plaintiff’s damages for his failure to undergo a corrective surgery, which could have minimised his disabilities and therefore, damages. The Supreme Court decided to reduce the damages by one third of the damages.
In Abel Kopen –v- The State [1998-89] PNGLR 659 at 660, His Honour, Justice Woods in a claim for damages done to a motor vehicle stated the position in these terms:
... the plaintiff is saying that, in effect because of the damage to the vehicle, the plaintiff had his vehicle repossessed. However, I fail to see how the repossession can be a reasonable consequence of the damage. The plaintiff is suppose to mitigate his damages and in this case this would include taking appropriate steps to get the repairs done effectively and without any unreasonable delay. Instead, however, the defendant left everything to his finance company which, it would appear, was grossly careless, even negligent, in looking after the interests for its client. However, why should the defendant pay for the consequences of the careless or negligent financial arrangement of the plaintiff. The defendants are entitled to assume the plaintiff will take the appropriate steps to repair his vehicle and the defendant cannot be liable for the consequent failure of the plaintiff to act reasonable.
Noting the above, I will calculate the Plaintiff’s future economic loss in this way. I will start with his pre-accident weekly income of K70.00 and have that reduced by the Plaintiff’s disability of 40 % and arrive at a sum of K56.00. I multiply that using the 3% compound interest tables by his remaining working life of 22 years. That produces a sum of K47, 264.00. I will have that deducted by one third for the plaintiff’s failure to mitigate his loss to bring the figures to K31, 509.34. I then allow for the usual variables in life such as, early death or early retirement and reduce it by a further 5%. The end result is K29, 932.88. I award that amount for future economic loss, less 50% contributory negligence.
Other Claims
The plaintiff has made an additional claim for home care in the amount of K400.00. I reject that claim on the basis that there is no pleading for that and lack of evidence of such expenses being incurred. It is now well settled law that unless a plaintiff has his claim founded on the pleadings, no claim outside what is pleaded can be awarded. This has being made clear in numerous judgments of both the Supreme and the National Courts. An example of that is the Supreme Court decisions in Motor Vehicle Insurance (PNG) Trust –v- James Pupune (supra) at pp. 373 –374 as well as of Motor Vehicle Insurance (PNG) Trust –v- John Etape [1994] PNGLR 596 at 598 – 599.
Finally, the plaintiff is claiming interest at the usual rates. The law on interest is also well settled. A plaintiff is entitled to interest as a form of compensation for being kept out of his money, which theoretically was due to him at the date of his injuries. Whether or not to award interest is a matter within the discretion of the Court. When exercising that discretion, the Court has to have regard to the distinction between past or pre-judgment losses and future losses, which is from the date of the judgement onwards. The Supreme Court in Johan Pincgar –v- Bouganville Copper Limited [1985] PNGLR 160 fix the appropriate rate for calculation of interest in personal injuries claims at 8%. At the same time, the Court said the power to award interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act (Chp. No. 52) must be exercise according to the following principles:
(1) Interest on special damages (including loss of wages) should be awarded from the date of the accident to the date of the trial at half the appropriate rate;
(2) Interest on damages for pain and suffering and loss of amenities should be awarded at the appropriate rate from the date of the service of the writ to the date of the trial;
(3) No interest should be allowed on damages for loss of future earnings.
Going by these principles, I am prepared to allow K3, 000.00 for the past component of the general damages and calculate interest at 8% per annum on that amount which gives a total of K240.00. Since there is no award for any past lost of wages or out of pocket expenses, there is no basis to award interest for such damages.
Summary
In summary I find and award damages as follows:
There shall be judgement for the Plaintiff in the sum of K26, 706. 44 with cost to follow the event.
___________________________________________________________________________
Lawyers for the Plaintiff: Pacific Legal Group Lawyers
Lawyers for the Defendant: Mirupasi Lawyers
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