PNG Law Reports 1995
[1995] PNGLR 214
SC480
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
MOTOR VEHICLES INSURANCE (PNG) TRUST
V
SALIO TABANTO
Lae
Kapi DCJ Hinchliffe Sevua JJ
27 March 1995
12 May 1995
NEGLIGENCE - Liability - Riding in the back tray of a vehicle which does not have a PMV licence - Whether contributory negligent.
PRACTICE AND PROCEDURE - Relevance of Order 8 r 33(1)(g) - Failure to plead all details - No objection at trial to admissibility of.
EVIDENCE - Evidence in lower court on matters not pleaded - Admissibility on appeal.
DAMAGES - Measure of general damages - Proper award.
Facts
The respondent received injuries to his left hand when he was thrown out of the back tray of a Toyota Dyna Truck when the Truck skidded on a corner and hit a cement culvert on the Highlands Highway. The trial Judge concluded that the driver was negligent but did not deal expressly with the issue of contributory negligence on the part of the respondent. The appeal raised issues of contributory negligence, and the accuracy in assessment and of measure of damages.
Held
1.       In formulating a principle of law, the Supreme Court must, take into account the conditions and the circumstanes of Papua New Guinea.
2.       Riding in the back of a vehicle which does nto have a PMV license is not ipso facto contributory negligent, but a relevant factor in considering whether or not there is contributory negligence.
3.       The question of whether or not a passenger is guilty of contributory negligence involves a wide number of considerations, and each case will depend on its own facts.
4.       A party who has not objected to evidence in relation to matters which are not pleaded and who proceeded to litigate the matter on its merits, cannot raise objection to the admissibility of such evidence on appeal.
5.       The Supreme Court will not disturb the damages award by a trial judge unless it is of the view that the amount awarded is so inordinately high that it is a wrong estimate of the damages.
Counsel
A Kandakasi for the appellant
W Neill for the respondent
12 May 1995
KAPI DCJ HINCHLIFFE SEVUA JJ:  Salio Tabanto (hereinafter referred to as “the respondent”) and the Motor Vehicles Insurance Trust (hereinafter referred to as “the appellant”) pursuant to s 54 of the Motor Vehicles (Third Party Insurance) Act (Ch 295) claimed damages for injuries received in a motor vehicle accident.
The motor vehicle involved in the accident carried registration number AGA.594. This vehicle is described as a Toyota Dyna truck with a back tray. It was registered but did not have a PMV licence. The evidence at the trial does not indicate in any detail the type of tray. The respondent was sitting in the back tray. There was another passenger Sagia who also sat with him in the back tray.
The vehicle was travelling along the Highlands Highway between Yonki and Kainantu in the Eastern Highlands Province and at a point along the road, called Kolwara, the vehicle skidded on a corner, turned about face and hit a cement culvert and the respondent was thrown to the ground and he received injuries to his left hand. 
A report by Dr Hudson dated 10 March 1987 described the injuries as follows:
“There is no injury of the left thumb. All points of the left hand fingers (index to little) are stiff, with about 10% of the normal range of motion. The thumb is opposable normally only to the index finger, and weakly to the others. He is unable to grasp or grip normally with the left hand. I would estimate that the function of the left hand for normal work activities has been reduced to about 10% of the normal function, and that this loss of function is permanent. Physiotherapy may be able to restore a small portion of the loss function.”
The trial judge estimated the loss of function of the left hand within the range of 60% - 90%. As a result of the injuries received, the respondent’s employment as a caretaker/janitor at the Aiyura National High School was terminated.
The trial judge concluded that the driver of the vehicle was negligent in causing the accident and the loss of employment by the respondent was a direct result of the injuries received. He awarded the following damages:
Pain and suffering and loss of amenities	K12,000	
Interest	K 480	
Loss of earnings	K 9, 338	
Interest	K 1, 868	
Total	K23, 686	
The appellant has appealed against the decision on the following grounds:
“3.      The grounds relied on in support of the appeal are as follows:
(a)      His Honour erred in finding that the plaintiff was not contributory negligent when there was no or no sufficient evidence before him upon which such a finding could be made;
(b)      His Honour erred in failing to find that the plaintiff was contributory negligent by reason of voluntarily sitting in the back tray of the vehicle where there was no proper seating for him;
(c)      His Honour erred in finding that the plaintiff’s net fortnightly income and loss was K77.00;
(d)      His Honour erred in awarding K12,000.00 for general damages, which award was excessive; and
(e)      His Honour erred in failing to place any or any sufficient weight on the evidence of the plaintiff’s old age and the fact that he was right handed, when awarding damages.”
CONTRIBUTORY NEGLIGENCE
Paragraph 4 of the appellant’s defence raised the issue of contributory negligence by the respondent alleging, inter alia, that the respondent was not sitting in a safe position in the vehicle. The record in the appeal book shows that neither the counsel for the respondent nor counsel for the appellant made any submissions on the issue. The trial judge in his judgment did not expressly deal with the issue.
Nevertheless, counsel for the appellant has submitted that there was some evidence which raised the issue of contributory negligence on the part of the respondent and that the appellant is entitled to raise the issue on appeal. He based this submission on the proposition that this Court has very wide powers under s 6 of the Supreme Court Act and may entertain a ground of appeal in relation to an issue which was raised by the facts at the trial but was not dealt with by the parties or the trial judge.
It is not necessary for us to decide this or consider the scope of the power of the Supreme Court under s 6 of the Supreme Court Act as counsel for the respondent has conceded that the appellant is entitled in the circumstances of this case to raise the ground of appeal relating to contributory negligence.
Counsel for the appellant submitted that under the Motor Traffic Act and the Regulations made thereunder, public motor vehicles are licensed to carry passengers. Section 30 and Sch. 3A of the Regulations prescribe requirements for construction of seats where the vehicle is a truck (as in this case) and other requirements such as side bars, roll bars and covering of the passenger area and the entrance to the passenger area. He submitted that these requirements relate to the safety of passengers. He submitted that the effect of this legislation is that anyone who carries any passenger on a truck without any PMV license, does so negligently and anyone who voluntarily rides on any such vehicle does so at his own risk and thereby must accept some contributory negligence on his own part. He referred to National Court judgments by Woods J in support of this proposition. See Maria Sam v Motor Vehicles Insurance (PNG) Trust (unreported judgment of the National Court dated 20 December 1991, N1022); Kulno Kanzie v Motor Vehicles Insurance (PNG) Trust (unreported judgment of the National Court, dated 3 February 1992, N1030); Kay Wally v Motor Vehicles Insurance (PNG) Trust (unreported judgment of the National Court dated 3 February 1992, N1029); Joe Ongulgo v Motor Vehicles Insurance (PNG) Trust (unreported judgment of the National Court dated 14 February 1994, N 1195).
In reply, counsel for the respondent referred to an amendment to the Motor Traffic Regulations in 1990 (Statutory Instrument No 12 of 1990) which deals specifically with seat belts. In essence he submitted that this regulation only deals with vehicles that are fitted with seat belts and has no application to vehicles which are not fitted with seat belts. 
He further submitted that there is no provision under the law either expressly or impliedly which prohibits anyone from riding on a vehicle other than those vehicles licensed to carry passengers. He submitted that the fact that a passenger rides in a vehicle which does not have a PMV license, on it’s own does not amount to contributory negligence. He conceded, however, that it is a consideration to be taken into account with all other relevant factors in determining whether there is contributory negligence.
As far as we are aware, this issue has not been considered by the Supreme Court. Therefore, in this case, we have been asked to provide some guidance as to the proper approach to this question.
We point out that in this case, we are dealing with a passenger riding in the back of a truck which is registered but does not have a PMV license to carry passengers for reward. There is no evidence on, whether, or not, the tray had any side rails or any roll bars, or any seats. There is no evidence of the manner in which the respondent was sitting, whether or not he was holding on to any object. There was one other person sitting in the tray. There is no question of any overloading of the vehicle.
Can it be concluded from the fact that a person who takes a ride in the back tray of a vehicle which does not have a PMV license without more, amount to contributory negligence on the part of the passenger?
There are cases which deal with people riding in vehicles which are uninsured. See Nita Pyakalo v Motor Vehicles Insurance (PNG) Trust (unreported judgment of the National Court dated 25 August 1992, N1092). In Waima v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 254 Woods J at 256 said:
“With respect to riding on an uninsured vehicles, people must accept some responsibility for accepting rides on vehicles that are not registered and thereby not insured. If people are prepared to accept the benefits of motor vehicles, they must, therefore, accept the responsibility. Current registration, and therefore, insurance means that a vehicle has been passed as being safe for use upon the road. All vehicles carry an appropriate sticker, fixed in a place for all to see, which clearly indicates the present state of the registration. People must accept the responsibility to themselves to understand those stickers. I find that a person who rides in a vehicle that is not registered, and therefore not also insured, must accept some responsibility for any injuries they incur.”
It is not necessary for us to decide whether this is a proper principle as far as riding in an uninsured vehicle is concerned. In the case before us, the vehicle was registered at the time of the accident. Even if the statement is accepted as a proper principle, what has been set out above may have no application to a passenger riding in the back of a registered vehicle.
In fact Woods J dealt with the issue of riding in the back of a utility as a separate circumstance which calls for separate consideration. On page 256 he said:
“With respect to contributory negligence for riding in the back of a utility, I find that the death of the deceased was not contributed by the riding in the back without safety features but by the manner of the driving of the vehicle. Whilst the authorities, which include the defendant, condone by inaction the riding in the back of utilities without seats and appropriate safety features, I cannot find such passengers partly negligent without special aspects of the riding in the back such as found in the case of Wally v Motor Vehicles Insurance (PNG) Trust N1029 and in the case Oroela v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645.”
Woods J reached a similar conclusion in Sipa Tore Are v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 456. In that case, the plaintiff was riding in the back of a truck. There was no evidence to suggest that he did anything else than simply ride in the back or did any other act which could amount to contributory negligence.
It could be deduced from these two cases that the fact of riding in the back of a vehicle which does not have a PMV license, of itself cannot amount to contributory negligence.
In formulating a proper principle, we need to bear in mind that this is Papua New Guinea and that any principle we formulate must take into account the conditions and the circumstances in Papua New Guinea. In particular we need to bear in mind that many people in Papua New Guinea are illiterate and may not be aware of the requirements for a PMV license. That is a question of fact. 
It is also clear that many people ride on vehicles other than a PMV which belong to relatives or wantoks in accordance with the customary concept of sharing one’s possessions with others. Many people in this country would be denied means of transport if by a decision of this Court, provision of transport to wantoks in this way is denied.
On the other hand, we need to take into account people who ride on vehicles whose behaviour may endanger their own safety. It is proper to attribute some responsibility to those passengers. The basic question is, whether, a passenger in taking a ride in the back of a vehicle other than a registered PMV is negligent having regard to all the relevant circumstances in the case?
We consider that this is a complex issue and, therefore, cannot be resolved by simply considering the single fact of a passenger riding in the back of a vehicle which is not a registered PMV. However, we agree with counsel for the respondent that sitting in the back of a vehicle which does not have a PMV license is a relevant factor in considering whether, or not, there is contributory negligence. The question of whether or not a passenger is guilty of contributory negligence involves a wide number of considerations. It would not be wise to give an exhaustive list. However, it would include the following considerations:
WHAT REALLY CAUSED THE ACCIDENT?
What did the passenger do to contribute to his injuries in the accident?
What was the design of the back tray of the vehicle? Did it have any side rails, covering over the sitting area, did it have roll bars, did it have seats and seat belts, etc.
How was the passenger sitting? Was he sitting in the middle or to the sides, was he sitting on any object, was the object securely fastened to the tray? Was he standing up or moving about at the time the accident took place?
WAS THE VEHICLE OVERLOADED IN TERMS OF PEOPLE AND CARGO?
There are other considerations which may be relevant to the question of contributory negligence. 
We consider that contributory negligence can only be determined after a full consideration of all the relevant factors. Each case will depend on its own facts.
Was there contributory negligence on the part of the respondent in the circumstances of this case? Unfortunately, there is very little evidence in relation to factors relevant to contributory negligence. The only material facts are that the respondent was sitting in the back tray with one other person. There is no evidence that the other person was injured. There is absolutely no evidence in relation to the type of tray or the manner in which the respondent was sitting at the time of the accident. There simply is not enough evidence to determine any contributory negligence on the part of the respondent. It follows from this that it is not necessary for us to consider submissions relating to apportionment of liability. We would dismiss this ground of appeal.
LOSS OF INCOME 
Counsel for the appellant submitted contrary to the requirements of O 8 r 33(1)(g) of the National Court Rules that the statement of claim did not plead the details of loss of wages. It is now accepted in Papua New Guinea that our Rules provide a code of pleading and if a matter is not pleaded as required, no evidence may be admitted at the trial in relation to those matters. see Repas Waima v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 254. Although the Supreme Court in Motor Vehicles Insurance (PNG) Trust v James Pupune [1992] PNGLR did not address this issue directly, it is clear from the decision of the Court that it may not be permissible to lead evidence at a trial on matters which are not pleaded. This is within the discretion of the Court. In our view, the law is clear as to admissibility of evidence which relate to matters which are not pleaded in a trial.
The situation is different where no objection is made to admissibility of evidence on matters which are not pleaded, and the defendant contests the evidence on it’s merits. The question then becomes; can he raise objection to admissibility on appeal? That was precisely the issue raised in Pupune’s case (supra). The Court said:
“Counsel for the appellant by his conduct at the trial has allowed the issue of economic loss which was not pleaded to be litigated. This was clearly indicated by not objecting to evidence relating to matters not pleaded and by contesting the matters relating to economic loss on their merits. It is clear from the authorities we have referred to that if a party allows an issue which is not pleaded to be litigated fairly, he cannot on appeal hark back to the pleadings and argue that the issue was not pleaded.”
This case was subsequently followed in another Supreme Court decision Motor Vehicles Insurance (PNG) Trust v John Etape (unreported judgment of the Supreme Court dated 1 July 1994, SC 460).
Counsel for the appellant in his written submissions sought to argue that these two decisions are not binding on this Court and, therefore, we should depart from them. However, in the course of argument, he did not press this line of argument. We are not satisfied that the two Supreme Court decisions referred to above were decided wrongly. We adopt the proposition in these two cases, namely that a party who has not objected to evidence in relation to matters which are not pleaded and proceeds to litigate the matter fairly on its merits, cannot raise objection to the admissibility of such evidence on appeal.
In this case, the appellant cannot now raise the issue of lack of pleading on details of loss of wages because no objection was taken and he contested the evidence of loss of wages as to the amount of dependency at the trial.
Alternatively, the appellant has submitted that there is no evidence upon which the trial judge could have calculated the loss of wages at K77.00 per fortnight. The respondent’s evidence shows that he sometimes received K70.00 and K80.00 at other times. The only other evidence on his salary came from Nicholas Pauls, the Education Division Administrator at Aiyura National High School. It is not clear from his evidence whether the figures relate to his gross or net salary. There was cross examination of the exact figure for the salary. 
However, the point was never clarified. The amount that should be allowed is the net salary. It was open on the evidence to reach the conclusion that the net salary was K77.00 as given by Mr Pauls. No attempt was made by counsel for the appellant at the trial to suggest that the figure of K77.00 was the gross figure and not the net figure. We would dismiss this ground of appeal.
GENERAL DAMAGES
Counsel for the appellant submitted that having regard to the facts of this case and comparable awards given by the National Court in other cases, an award of K12,00.00 for general damages was excessive. Counsel referred to a number of decisions.
We cannot disturb the damages awarded by the trial judge unless we are of the view that the amount awarded is so inordinately high that it is a wrong estimate of the damages. 
We consider that the case which is most closely related to this case is Ambo Clung v The Motor Vehicles (PNG) Trust (unreported judgment of the National Court dated 19 March 1990, N824). In that case, a woman aged between 45 and 50, a subsistence farmer received a fracture of the right thumb and a fracture of her left wrist. These injuries resulted in stiffness and disability in both hands and therefore reduction in efficient use of both hands. The Court awarded K8000.00 for general damages.
The injuries in the present case are not as serious as the case referred to above. The respondent is right handed and has an injury to his left hand. Taking into account inflation, we consider that the appropriate award for this case would be K8000.00. We would allow the appeal on this ground.
We make the following orders:
1.       The appeal relating to contributory negligence and assessment of dependency in the sum of K77.00 per fortnight are dismissed.
2.       The appeal in respect of K12,000 general damages is upheld. In lieu thereof is substituted the sum of K8,000.00.
Lawyers for the appellant: Young & Williams
Lawyers for the respondent: Milner & Associates