Moka v Motor Vehicles Insurance Ltd [2004] PGSC 38; SC729 (1 April 2004)

SC729

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 51 of 2001

BETWEEN

ANDREW MOKA
Appellant

AND

MOTOR VEHICLE INSURANCE LIMITED
Respondent

Waigani : Hinchliffe, Sevua & Mogish, JJ
2002 : 1st August
&
2004 : 1st April

NEGLIGENCE – Liability – Contributory negligence – Collision between two vehicles – First vehicle broken down on road and being pushed to side of road – Second vehicle’s driver under influence of liquor collided with first vehicle – Whether appellant’s conduct in pushing vehicle off road amount to contributory negligence – Whether finding of contributory negligence at 50% against appellant correct in law.

Cases cited:
The Older [1949] WN 488; 66 LTLR (Pt 1) 105 CA
Nance v. British Columbic Electric Rasley [1951] AC 601 at 611; 2 All ER 448 PC
Robert Brown v. Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409
Davies v. Swan Motor Co [1949] 2 KB 291 at 326; 1 All ER 620 CA
Tambi v. The State [1988-89] PNGLR 648
Rock Kuri v. Motor Vehicle Insurance (PNG) Trust, unreported and unnumbered, 19th November 1998
Anton Johan Pinzger v. Bougainville Copper Limited [1985] PNGLR 160

Counsel:
T. Boboro for Appellant
V. Mirupasi for Respondent

1st April 2004

BY THE COURT: This is an appeal against the whole of the judgment of the National Court given on 18th May 2001 at Waigani.

The proceedings before the National Court was a claim by the appellant for damages for negligence arising out of a motor vehicle accident, which occurred at Waigani Drive, near the old Germania Club, on 18th July 1996 at approximately 8.30pm.

The brief facts were that the appellant and the deceased Mark Wara were pushing their vehicle from the road to the side of the road after the vehicle had broken down, when they were struck by a vehicle from behind as they were pushing their vehicle off the road. As a result of this mishap, Mark Wara died from injuries he sustained, while the appellant suffered serious injuries.

The trial Judge made a number of findings and reached conclusions which are now challenged in this appeal. The significant findings that the appellant is challenging are the trial Judge’s findings of contributory negligence and subsequent apportionment of blame on the appellant to the extent of 50%. The grounds of appeal are as follows:

1. The learned trial Judge erred in law:-
   
   • (a) His Honour erred in that there was no or no sufficient evidence to find that the appellant was guilty of contributory negligence or alternatively guilty of contributory negligence to the extent of 50%.
   • (b) The apportionment was not just and equitable having regard to the relative fault of the appellant and the respondent’s insured.
     
   • (c) His Honour failed to take into account the following facts or circumstances either at all having given sufficient weight.
     
     • (i) That the appellant was a passenger in a motor vehicle which had broken down and he was trying to move it off the roadway;
       
     • (ii) That the appellant was at, most, endangering his own safety, whereas the respondent’s insured was a danger to all road users;
       
     • (iii) The respondent’s insured liability for the injury suffered by the appellant was considerably more blameworthy than any conduct on the part of the appellant;
       
     • (iv) That the respondent’s insured was driving at high speed, failed to keep a proper look out and was guilty of dangerous driving.
       
     • (v) His Honour failed to take into account that the respondent’s insured failed to give any evidence to explain his conduct or as to the circumstances of the accident;
       
     • (vi) His Honour erred in failing to accept the evidence of the appellant in circumstances in which there was no contrary evidence and the appellant’s evidence was not far fetched or fanciful.
       
2. The decision is against the evidence and weight of the evidence.
   
3. The decision on the issue of contributory negligence is wrong and should be set aside.
   

The orders sought by the appellant therefore are:-

(a) That the order of His Honour Justice Kandakasi of 18th January 2001 be quashed.

(b) That judgment be entered in favour of the plaintiff against the defendant.

(c) That the Supreme Court assess damages to what the plaintiff is entitled as follows:-

(i) General damages at K73,000.00

(ii) Future income loss at K47,264.00

(iii) Past income loss at K20,000.00

(iv) Interest on past general damages at K 240.00

(d) That the defendant pays the plaintiff’s costs.

Having heard oral submissions from both counsel and reading their written submissions, we consider that the central issue in this appeal is the trial Judge’s finding and conclusion that there was contributory negligence on the part of the appellant thereby concluding that the appellant was 50% negligent and blameworthy.

It is significant to refer to parts of the trial Judge’s judgment. At page 4 of his judgment, the trial Judge made various findings. We emphasise the following:

"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 (sic) Martin Vele. The defendant’s liability is by virtue of s.54 of the Motor Vehicle Insurance Trust Act".

Then on page 5 of his judgment, the trial Judge made further findings on two possibilities, which we consider to be quite erroneous and contrary to the sworn testimony of the appellant. His Honour said:

"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 another 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".

On the basis of these findings, which we consider to be erroneous, the trial Judge concluded there was contributory negligence. In that paragraph he said:

"I find the plaintiff either placing himself in the way of the on coming traffic or position himself at a point that was unsafe for him to do so, I find therefore that he failed to exercise reasonable care and attention for his own safety. He was therefore partly responsible for his own injuries... I find the plaintiff’s conduct was equally blameworthy as that of Martin Vele in the particular circumstances of this case. It is therefore fair and reasonable, to also find that the plaintiff contributed to his injuries by his own negligence up to about 50%......."

With respect, we are of the view that the learned trial Judge made some serious identifiable errors which has resulted in an injustice to the appellant, the consequences of which, is that, he has been denied compensation he is legally entitled to.

We consider that the trial Judge’s findings that we have alluded to are not supported by evidence. The uncontested testimony of the appellant was that between 7.00 and 8.30 pm on the evening of the day he and Wara were injured, their vehicle had broken down on the main lane. They then switched the emergency blinkers on and were pushing the vehicle towards the side of the road. A vehicle came from behind them and struck them while they were pushing the vehicle. That piece of oral evidence is consistent with the appellant’s affidavit sworn on 4th April 2001, Exhibit "E".

The appellant’s evidence that we have alluded to was never refuted by the respondent. The respondent did not adduce any evidence to suggest that the appellant was blameworthy. So what is the basis for the finding of contributory negligence? In any event, the defendant’s insured driver, Martin Vele, was driving under the influence of alcohol. He collided onto the appellant and the deceased. Martin Vele was drunk and solely to be blamed for this accident, not the appellant. In our view, there is no basis whatsoever for the trial Judge’s findings of 50% contributory negligence by the appellant. His findings are not supported by facts.

"Contributory" in modern cases of negligence means "causing directly". The onus is on the defendant. In this case there was undisputed evidence that the respondent’s insured was intoxicated. He collided with the appellant and the deceased who were pushing their vehicle off the road after it broke down. Certainly, if the insured driver had not been drunk, he might have avoided the collision. The appellant did not intentionally run onto the road thereby directly causing the collision. Neither was the act of pushing the vehicle of the road an intentional act to cause the collision. The respondent’s driver was intoxicated and he collided with the appellant and the deceased. Given that evidence, which was undisputed, we are unable to agree with the trial Judge’s finding of contributory negligence. The injuries were directly caused by the negligence of the defendant’s insured.

We are reminded by what Buckwell, LJ said in The Older [1949] WN 488; 66 TLR (Pt 1) 105 CA:

"It is a very salutary principle .................. that when one man puts another in a position of difficulty the Court ought to be slow to find the other man negligent, merely because he may have failed to do something which, looking back on it afterwards, might possibly have reduced the amount of damage."

With respect, we are of the view that the trial Judge was quick in finding that the appellant caused the accident therefore liable of contributory negligence.

Furthermore, by implication, the trial Judge seemed to have shifted the duty of care to the appellant when it was the respondent’s insured driver who owed a duty of care. There is no evidence that the appellant did not take reasonable care. Perhaps Lord Simon’s statement in Nance v. British Columbia Electric Railway [1951] AC 601 at 611; 2 All ER 448 PC would demonstrate this point.

"But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such defence is to prove.............. that the injured did not in his own interests take reasonable care of himself and contributed to his own injury."

We accept the appellant’s submission that although the respondent did raise the issue of contributory negligence in the trial, it failed to adduce evidence to support that defence. The appellant relied on Papua New Guinea Institute of Medical Research v. Papua New Guinea Banking Corporation, unreported, N.1934, 24th September 1999 where Kirriwom, J held inter alia,

"3. A party who relies on negligence or contributory negligence must adduce appropriate evidence to substantiate its claim for negligence or contributory negligence of the other party as the case may be."

We agree with that statement. The trial Judge in the present case had found that since the appellant was on the road pushing his vehicle onto the roadside he was liable for contributory negligence and was held to be more blameworthy. This is clearly an erroneous conclusion in our opinion. It is trite law that a party setting up contributory negligence as a defence must produce evidence of contributory negligence.

The standard of care attributed to a driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver. See Robert Brown v. Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409. He also owes a duty of care to other road users. Once he breaches that duty of care, he is liable in damages for negligence.

The driver of the insured in the present case cannot turn around and blame the appellant for contributing to his injuries. We are satisfied that there was no contributory negligence therefore we are of the opinion that the trial Judge erred in finding contributory negligence on the part of the appellant.

In the light of that, we consider that the apportionment of negligence must also be affected. We assume that in finding that the appellant had contributed to his injury by 50%, the trial Judge had determined that the appellant was blameworthy. Mindful of the fact that accusation and blameworthy are both factors in apportionment of negligence and consequently damages, we think that the trial Judge erred in only considering blameworthiness, and subsequently this is reflected in his assessment of damages. We find that the respondent’s insured driver caused the collision and is to be solely blamed for the accident. It follows therefore that the apportionment of negligence cannot stand and we quash that finding.

As Denning, LJ said in Davies v. Swan Motor Co [1949] 2 KB 291 at 326; 1 All ER 620 CA:

".... the amount of the reduction involves. a consideration, not only

of a particular factor but also of its blameworthiness."

We have noted the explanation by the appellant as to why they were pushing the vehicle, as in doing so, it was suggested, he was putting himself at great risk. At page 63 of the transcript the appellant gave this answer:-

"If we had left the vehicle in the centre of the road then other vehicles would be colliding into it and there would be further accidents so to avoid that we decided to push it to the side of the road".

We consider that to be the wise thing to do, and was quite reasonable in the circumstances. The respondent did not object to part of that answer which might seemed to be an assumption, but we consider that it would be very foolish and dangerous to leave a broken down vehicle in the middle of the road at 8.30pm in the evening. Despite the suggestion that the appellant had placed himself at high risk, we consider that he was doing the right thing a reasonable man would have done. Should the Court thus find him more blameworthy as the negligent drunk driver who collided onto the appellant? There is no law that says when your vehicle breaks down on the middle of the road, you must not push it off the road. If such a law exists, a finding of contributory negligence will obviously not be erroneous.

We are of the opinion that the finding of contributory negligence was erroneous and we also find that the extent of the contributory negligence, that is, the 50% blame apportioned against the appellant was erroneous as well.

In relation to assessment of damages in the orders sought on paragraph 4 of the notice of appeal, we note that the trial Judge had discussed assessment on pages 7 to 15 of his judgment.

Since the issue of assessment is raised in the notice of appeal, we are of the view that this Court must assess damages or review the assessment by the trial Judge on the basis that if assessment is remitted to the National Court, it will take the appellant unnecessarily longer to have a date of trial fixed for assessment. The effect of this is that he is deprived of what he is legally entitled to. We therefore consider it appropriate to review the assessment of damages in the Court below in view of what we have concluded. The appellant seeks an order that the Supreme Court assess damages so there is no reason why we cannot do this.

In general damages, the trial Judge awarded the sum of K23,000.00 for pain and suffering, after considering Tambi v. The State [1988-89] PNGLR 648 and Rock Kuri v. Motor Vehicle Insurance (PNG) Trust, unreported and unnumbered, 19th November 1998. We note the awards in both cases and we think that the two Judges’ views that the awards should be slightly higher were correct. We are of the opinion that in the light of the high rate of inflation existing at the present time the Courts ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher now then what the Court was awarding in 1988 and 1998, when the above cases were decided. Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case. In the present case, we have considered the medical reports relating to the injuries sustained by the appellant and we are of the view that such injuries are quite serious warranting a higher award for pain and suffering and loss of amenities of life than what the trial Judge had awarded. We would therefore assess general damages for pain and suffering at K35,000.00. In accordance with the principles in Anton Johan Pinzger v. Bougainville Copper Limited [1985] PNGLR 160; in respect of interest, we will award the usual rate of 8% from the date of service of the writ to the date of trial. Unfortunately, the National Court file in this matter has gone missing therefore we are unable to quantify the interest. We will leave it to the parties.

In relation to past economic loss, the trial Judge found that there was no evidence from the appellant’s former employer as to when the appellant was terminated (if he was) and that he was terminated because of his injuries. In our view, there is some evidence in the letter, Annexure A, to the affidavit of the appellant sworn on 4th April 2001 and which went into evidence in the trial. The letter from Securimax Security Pty Limited dated 24th September 1996 sets out the rate of pay the appellant was receiving. It is the appellant’s evidence that he ceased to receive his wages after he was hospitalised.

However, having said that it is our view that the trial Judge made no error in his findings on past economic loss. The appellant claims the sum of K12, 320.00 in his writ as past economic loss plus interest. This is based on a weekly earning of K70.00 prior to the accident. In his notice of appeal, he asked the Court to award him K20, 080.00 for past economic loss. However, there is no evidence as to how the appellant arrived at the sum of K20, 080.00. The appellants written submission doesn’t show how the amount was calculated neither is there a calculation that the Court can follow. We agree with the trial Judge that both the appellant’s submissions in the trial and his pleadings do not show how he could claim the sum of K20, 080.00 in past economic loss. We therefore make no award for past economic loss.

We confirm that the trial Judge did find that the appellant has lost 40% of the efficient use of his left leg. This is found in page 11 of his judgment. It is therefore not correct that he rejected that evidence. There is no basis for the appellant’s submission that the trial Judge found otherwise.

In respect of the appellant’s future economic loss, we disagree with the trial Judge’s assessment, especially, in reducing the sum of K47, 264.00 by one third which amounted to K15, 754.67. Whilst we agree that the appellant did not mitigate his loss, we think the reduction of K15, 754.67 was too excessive and unfair. We are of the view that one quarter reduction is reasonable therefore we have allowed the sum of K47, 264.00 for future economic loss to be reduced by one quarter for failing to mitigate his loss. Therefore the award is reduced to K35, 445.00. A further 5% for contingencies alluded to by the trial Judge brings that amount to K33, 672.75. We therefore award that sum for future economic loss.

The summary of awards of damages we will award are therefore as follows:-

1. General damages for pain and suffering K 35, 000.00

2. Future economic loss : 33, 672.75

Total : K 68, 672.75

We order that the appeal be upheld and that judgment be entered for the appellant in the sum of K68.672.75 together with costs and interest.
____________________________________________________________________________
Lawyer for Appellant : Pacific Legal Group
Lawyer for Respondent : Mirupasi Lawyers