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Tumu v Motor Vehicles Insurance (PNG) Trust [1989] PGNC 104; [1988-89] PNGLR 638; N728 (7 July 1989)

N728

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TUMU

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J
15 June 1989
7 July 1989

DAMAGES - Personal injuries - Particular awards of general damages - Arm and wrist injury - Splinted six months - Pain and limited movement - Male medical orderly aged 32 (35 at trial) - Award of K8,000 general damages.

The plaintiff, a male medical orderly, aged 32 (35 at trial) claimed damages for personal injuries suffered in a motor vehicle accident when he was thrown from his vehicle and suffered a fractured wrist. The arm was kept in a splint for six months and the residual disabilities included pain and some limitation in movement which restricted him in tasks such as lifting patients.

Held

General damages for pain and suffering and loss of amenities should be assessed at K8,000.

Cases Cited

Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573.
Kuriti v The Independent State of Papua New Guinea [1988-89] PNGLR 633.
Pep v Yamba [1987] PNGLR 485.

Statement of Claim

This was an action in which the plaintiff claimed damages for personal injuries suffered in a motor vehicle accident.

Counsel

D O’Connor, for the plaintiff.
M Maladina, for the defendant.
Cur adv vult

7 July 1989

WOODS J: The plaintiff, Mark Tumu, is claiming damages for injuries received in a motor vehicle accident that occurred on 25 March 1986 in Mt Hagen. The plaintiff was the driver of motor vehicle registered number AEL 304 owned by himself that was travelling into Mt Hagen on the main highway when it collided with a motor vehicle registered number ADY 951 owned by Burns Philp which was travelling out of town. The plaintiff is claiming that the collision occurred because of the negligence of the driver of the Burns Philp vehicle. The claim is against the Trust as the Third Party Insurer of the Burns Philp vehicle.

The Trust denies that there was negligence in the driver of the Burns Philp vehicle but states that the plaintiff was himself negligent.

The plaintiff states that he was returning into town on the main road between the Seventh Day Adventist Church and the Catholic Church when the other vehicle came speeding down and collided with his driver’s side door and there was nothing he could do and he was thrown out of the door of his vehicle and suffered injuries to his right arm and leg. The plaintiff agrees that one of his tyres was burst after the incident but insists that it burst as a result of the collision. The plaintiff insists that at all times he was on his correct side of the road.

A bystander gave evidence of standing at the roadside at a betelnut market and seeing the two vehicles collide. He said that the Burns Philp vehicle appeared to be speeding.

A police constable gave evidence for the defendant that he arrived on the scene a few minutes after the collision and investigated the accident. From what he observed, he placed the point of impact as being on the Burns Philp vehicle’s side of the road almost on the centre line and all the debris was on that side. He assessed that the accident may have happened because of the burst tyre of the plaintiffs vehicle. His diagram of the accident shows the defendant’s vehicle rolling across to the plaintiffs side of the road following the impact and the position of both vehicles after the impact precluded excessive speed by either driver.

I am faced with confusing evidence and no clear evidence which suggests that either driver was completely at fault. In the circumstances I am bound to find that each driver was careless to an equal degree of culpability.

On damages, the plaintiff is claiming some permanent disability to his right arm following being thrown out of his vehicle during the collision. The plaintiff is a medical orderly at the Immanuel Lutheran District Hospital at Wapenamanda. He obtained treatment at Wapenamanda Hospital and they put a splint on his right arm to immobilise the wrist. The splint stayed on for six months. He has permanent disability to his right wrist, there being some pain and limitation in movement. Medical reports estimate a disability ranging from 10 to 40 per cent in the use of the right hand.

The plaintiff states he still feels pain from his wrist and he cannot use a spade or an axe and is unable to lift heavy things at his work. Whilst he still holds his job as a nursing aide, there are limitations such as he cannot help to move patients. He is aged about 35 years. He was unable to work for six weeks so special damages for this is for three fortnights at K118 per fortnight. This totals K354.

On general damages there was some pain but not a great deal of distress. He still has a job but has some limitations. It is quite clear that his case is not as serious as the case of Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573, where K10,000 was awarded for a serious fracture which resulted in claw deformity. Nor as serious as the injury in Pep v Yamba [1987] PNGLR 485 where the court awarded K15,000 for general damages. This case is closer to the case of Kuriti v The Independent State of Papua New Guinea [1988-89] PNGLR 633.

The plaintiff has some limitations and these will obviously continue. I find no economic loss from employment apart from the six weeks referred to above. I would assess an amount of K8,000 for general damages which includes pain and suffering. I would assess the part of the general damages to the date of judgment at K2,000 on which interest will run at 8 per cent from the date of the issue of writ, namely, 28 October 1988 till today. The same interest will also run on the loss of wages for the same period. Interest comes to K130.

A summary of the plaintiffs damages is as follows:

Loss of wages

General damages K354

Interest K8,000

Total K130

Less 50 per cent contributory negligence K8,484

K4,242

I order judgment for the plaintiff in the sum of K4,242.

Judgment for K4,242

_____________________

Lawyer for the plaintiff: D L O’Connor.
Lawyers for the defendant: Young & Williams.