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Goiye v The State [1987] PGNC 9; N624 (21 September 1987)

Unreported National Court Decisions

N624

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NO. W.S. 417 OF 1986
DAVI GOIYE
V
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen

King AJ
16 September 1987
18 September 1987
21 September 1987

KING AJ: This is an action for damfges for personal injuries in which Mrs. Davi Goiye (“the plaintiff”) sues the State as defendant arising out of a motor vehicle accident on Sunday 3 February 1985 on the Highlands Highway between Kerowagi and the Koronigl Bridge.

On that day, the plaintiff who at all material times has lived at Mingendi village, had gone to Kerowagi to attend a church service. After the service she and some other people from her village had borrowed some money from the clergyman to pay their fares home to the village in a PMV. However before they caught the PMV a government vehicle registered number ZGG-041, which was a police car, came by and stopped. It was occupied by four policemen, two of whom got out and offered the plaintiff and the others a lift. They got in and the car, which it is common ground was being driven by one Anton Karl, a policeman, proceeded along the Highlands Highway. The plaintiff was last to get in to the car. There is no dispute that as it approached Koronigl Bridge the vehicle left the road and that a number of its occupants were killed or injured. The plaintiff sustained injuries and her young child, whom she was holding in the rear of the vehicle, was killed. I was informed by counsel for the defendant that criminal proceedings had been brought against the driver arising out of the accident and that he had been convicted and was unavailable to give evidence because he was serving a term of imprisonment at a location distant from Mt. Hagen.

There was, however, some dispute about the events leading to the accident after the plaintiff had entered the vehicle. She said in evidence in chief that as the vehicle approached the scene of the accident she saw that “some people” in it were drinking beer including the driver and that the vehicle was speeding. She said that one of the policemen sitting in the back told the driver to slow down whereupon he braked suddenly and the vehicle overturned three times.

In cross examination the plaintiff said that two of the policemen were in uniform and two were not or were not in full uniform. The driver was in full uniform except for his hat. She was then confronted with a statement which she admitted she had made to the police about the accident. The statement was typed in English and the plaintiff was illiterate but she identified her mark at the foot of the statement and it became Exhibit ‘I’ in the defendant’s case. The plaintiff said she did not remember what she had told the police but the statement contained the following matters which differed somewhat from her evidence in chief. First, that the driver was dressed only in “half uniform”. Secondly, that “whilst in the vehicle” she clearly saw that a carton of SP “Brown” beer was lying behind the rear seat with a policeman. Thirdly, that she did not see them drinking but that all the policemen smelled of intoxicating liquor “with red and watery eyes”. Fourthly, that after taking off she could see that the driver was driving very fast and drove very fast when approaching corners. Fifthly, that she noticed the speedometer reading between 100 and 150 k.p.h. Finally, as stated in chief, that one of the policemen warned the driver who braked and the vehicle overturned.

On the issue of liability the dependant raised initially three defences, namely that it was not vicariously liable for the negligence of the driver because he was not acting in the course of his employment at the time of the accident, that the plaintiff was guilty of contributory negligence, and that even if the defendant was liable the driver was also negligent so the defendant should not bear all the blame but the plaintiff’s claim should be reduced by an amount referrable to the driver’s negligence. This third ground, which was clearly misconceived, was abandoned but the other two were pressed. It was not disputed, nor could it have been, that the driver of the vehicle was negligent.

Counsel for the plaintiff argued that the question whether the driver was in the course of his employment, which the defendant challeged relying on the evidence suggesting that he was not in full uniform and was giving a lift to members of the public in a police car on a Sunday, was irrelevant and that the defendant was liable by force of Section 4 of the Wrongs (Miscellaneous Provisions) Act Chapter No. 297. That Section provides, so far as material:

4. ـ C6nclusive presumptsumption of Agency in respect of driving of Government vehicles

(1) &##160;roc pdingedings in w in which:

(60;&##160;;&#16claim is made against the stae state...te...... f... for daor damages in respect of .... personal injury to a person caused by, or ar out e usean unin uninsuredsured moto motor motor vehicle owned by the state .......

(b) ټ&#the drie driver ofer of the vehicle shall, for the purposes of the claim, be conclusively presumed to have been at all relevant times, with respect to the ng ofvehicle, the agent of the state......... acting wing withinithin the scope of his authority.

Section 3 of the Act defines “uninsured motor vehicle” as a motor vehicle in respect of which a third party policy is not in force and “third party policy” as a policy of insurance that is a third party policy within the meaning of the Motor Vehicles (Third Party Insurance) Act.

The defendant admitted that the vehicle involved in the accident was owned by the State and that no third party policy had been issued in respect of it. Indeed I was informed that no government vehicle is covered by such a policy and that the state acts as a self insurer of its vehicles.

Given the admissions by the defendant there can be no doubt that s. 4 of the Act conclusively deems the driver of the vehicle, Anton Karl, to have been the agent of the defendant acting within the scope of his authority at the time of the accident. Given also that he was clearly negligent the defendant is therefore vicariously liable to the plaintiff for his negligence. The argument of the defendant must be rejected on this issue and that of the plaintiff upheld. The plaintiff is entitled to succeed against the defendant and the only remaining question in relation to liability is whether the defendant has established - the onus being on it - that the plaintiff was guilty of contributory negligence and if so to what extent.

The defendant said that the plaintiff failed to take reasonable care for her own safety in two respects. First she should have checked the condition of the driver and other occupants of the car before getting in, or once having got in, she should have observed their condition and the carton of beer and got out. Secondly, having remained in the car, she ought to have asked the driver to slow down or stop and let her out as soon as his manner of driving became apparent. The defendant of course relied strongly on Exhibit ‘I’ in support of these propositions, since the plaintiff’s oral evidence in the witness box tended not to bear them out. In addition the defendant pointed to evidence given by the plaintiff that she was keen to accept a lift and save the PMV fare as indicating that she may well have been prepared to take something of a risk.

Counsel for the plaintiff replied to these submissions by saying that since the plaintiff was last into the car she could not be said to have been acting unreasonably in following the others who got in ahead of her, and also that the probabilities are that the vehicle took off immediately after she got in. In that fashion he argued that the first allegation of contributory negligence against her was unrealistic. Next he said that the accident in fact happened when one of the occupants of the car cautioned the driver and asked him to slow down, so that if the plaintiff had made a similar request earlier the accident may simply have happened earlier. Logically I think that if the plaintiff had asked the driver to stop or slow down before the accident one of three things have happened. He might have complied and the accident might have been avoided. He might have ignored her. He might have braked negligently as he unfortunately did. In the last two cases the accident would not have been avoided.

The onus on the defendant to prove contributory negligence extends to establishing the act or acts of contributory negligence and showing that they were causally related to the damage to some extent. I do not think on the evidence in this case the defendant has established that the plaintiff was negligent in getting into the vehicle at all, nor that if she had asked the driver to stop or slow down before the accident the injury would have been avoided or been less severe. For the defendant to establish contributory negligence on this second basis it would be necessary for the defendant to show that of the three possibilities I mentioned as representing the logical range of results if she had asked the driver to stop or slow down, the first which would have avoided or minimised the accident is the probable one: see Luxton -v- Vines [1952] HCA 19; 85 C.L.R. 352 and Holloway -v- McFeeters [1956] HCA 25; 94 C.L.R. 470, both of which decisions adopt and apply Richard Evans and Co -v- Astley [1911] UKLawRpAC 47; 1911 A.C. 674 at 687. Accordingly the defence of contributory negligence fails. There will be judgment for the plaintiff on the issue of liability and I proceed to the assessment of damages.

In the accident the plaintiff was thrown out of the vehicle onto the roadway and rendered unconscious for some days. She was hospitalized and found to have suffered a basal skull fracture; right facial nerve palsy; dislocation of the right shoulder; fracture of the right humerus; and a perforated right eardrum. Her hospitalization extended for a month. Dr. John McKup in his report of 26 March 1985 (Exhibit ‘A’) said she had 100% loss of function of her right facial nerve; 75% loss of hearing in her right ear; 45% loss of efficient use of her right shoulder joint; and that she would suffer osteoarthritis of her right shoulder joint. Dr. Allan Kulunga in his later report of 29 June 1987 (Exhibit ‘B’) found a lesser degree of facial palsy on the left side; that her perforated ear drum had healed well with equal hearing on both sides; that the fractured humerus had healed well with mild tenderness on full abduction of the right shoulder joint. He put the damage to the facial nerve at 45% and the disability in the shoulder at 20%. He expressed the view that she may have post head injury epileptic fits. It seems from the post script to Dr. Kulunga’s report that the facial palsy is on the left side of the plaintiff’s face and that Dr. McKup was incorrect.

Against the background of that medical evidence the plaintiff said her hearing was impaired; that her head was painful so she could not carry heavy bilum; and that the disability in her shoulder restricted her to light domestic and gardening work whereas before the accident she could do a full range of heavy work. With the exception of the complaints about hearing loss - in which the plaintiff was corroborated by her husband but not by Dr. Kulunga - I have no hesitation in accepting the plaintiff’s evidence.

A claim in respect of economic loss was made on the basis that by reason of the plaintiff’s disability she could not grow as much produce to sell at the market as previously and had difficulty in getting produce to the market. The evidence as to the plaintiff’s pre-injury income was conflicting and her evidence did not coincide with her husband’s, but there is no necessity for a detailed discussion of this aspect of the case because Counsel for the plaintiff submitted that on the evidence K15 a week was a reasonable estimate and Counsel for the defendant agreed. I am personally fortified in accepting that figure since I have heard evidence to similar effect in other cases and seen it discussed and accepted in other cases e.g. Kaka Kopum -v- The State (Miles J 28 November 1980). Although in practice the plaintiff’s pre-injury income was no doubt unaffected by taxation, it is necessary to make some discount for the fact that tax was properly payable: Kaka Kopun’s case (supra); Lewis -v- The State (S.C. 178, unreported 29 August 1980). Accordingly I shall allow K13 per week as loss of earnings. That figure produces a past loss of about K1700. As to the future, the plaintiff’s Counsel submitted that I should award damages for economic loss on the basis that the plaintiff would have worked to the age of about 55 years; the defendant on the basis that she would have worked till 40 - 45 years. I do not think 55 years is an extravagant estimate and the defendant will be to some extent protected by the necessity to discount future economic loss for the possible adverse contingencies or vicissitudes of life and to avoid overlapping with general damages. The plaintiff is now aged 28 years. To take her to 55 years means allowing a weekly loss of K13 for 27 years. Using the 3% actuarial discount tables that approach yields a figure of K12,623. I discount that figure by 15% and award K10,730 for future economic loss.

As regards general damages, I asked counsel to suggest and appropriate range. The plaintiff’s counsel suggested K20 - 25,000; the defendant’s K5 - 9,000 “allowing for contributory negligence” which is of course inappropriate in view of my finding on that issue. In my view a figure of K20,000 is reasonable as an award of general damages.

No claim was made for past or future out of pocket expenses.

Interest was sought on past economic loss and general damages. I assess past general damages at K12,000. For the reasons I gave in Peter Amini -v- The State (unreported 18 September 1987) I propose to award interest at 4% per annum from the date of injury to the present. The total of past economic loss and past general damages is K13,700 and interest on that figure comes to approximately K1,362. In the exercise of my discretion I shall round it off at K1,300.

The damages I award can be summarized a follows: