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Kulange v Motor Vehicles Insurance (PNG) Trust [1990] PGNC 13; N824 (19 March 1990)

Unreported National Court Decisions

N824

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1047 OF 1989
AMBUA KULANGE
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
21 December 1989
12 February 1990
19 March 1990

NEGLIGENCE - Liability - Village woman - Riding on the back of a motor vehicle. Personal injuries - Injuries to both hands - Village woman - Damages.

Cases Cited

Moki v The State, Unreported judgment dated July 1989.

Thomas Tambi v The State, N 780 Unreported judgment dated 30 October 1989.

Counsel

P Kopunye, for the plaintiff.

M Maladina, for the defendant.

19 March 1990

WOODS J: The plff is an elderly womy woman aged between 45 and 50 years who was riding on the back of a motor vehicle registered AFA 468. It was a utility type vehicle. She wated at the front of the tray near the cabin. The motor vehi vehicle apparently hit a bump or pothole on the road and the car bounced up and down sufficiently that the plaintiff was bounced up on the back and her left hand struck hard on the rail of the back and broke the wrist. At the same time as this happened her bilum which was on her lap fell in between the cabin and the rail of the tray and it tangled in the drive shaft. The plaintiff reacted automatically to rescue her bilum without realising the dangers and she broke her right thumb.

The plaintiff claims damages for the injuries she had received on the basis that the driver of the vehicle was negligent in his control of the vehicle. The plaintiff’s evidence is that the road was in poor condition that the driver knew of this poor condition and by taking the road in the speed and manner he did he is guilty of negligence in that he has failed in his standard of care to the passengers in his vehicle. The defendant well knew there were people riding in the back of the vehicle and the evidence in the case clearly shows no negligent behaviour by the plaintiff in the way she rode on the back of the vehicle. She was seated correctly inside the tray. The defendant submits the accident happened from the poor condition of the road and therefore the driver is not to blame. And the defendant submits that the driver satisfied the required standard of care by driving slowly. However, the fact that the plaintiff bounced up so hard to break her hand suggests that he did not drive slowly enough.

A driver of an open-back vehicle with passengers in the back has a very high duty of care and he must drive as carefully as the conditions warrant to ensure passengers who are not restrained in anyway but are seated correctly do not bounce up too much. The plaintiff is not saying that the driver was reckless in his driving, just that he breached the standard of care required in driving a vehicle on a dirt road. If the defendant wants to pass the blame for the condition of the road onto anyone else then it is necessary for him to join whoever must take the blame for the upkeep of the road. As far as the plaintiff is concerned the defendant’s driver knew of the status of the road and therefore had an obligation to drive appropriately. The evidence is quite clear that the driver took the poor road condition just too fast in the circumstance and the plaintiff thereby suffered injuries. I am therefore satisfied that the driver and therefore the Trust is liable for the injuries to the plaintiff.

However, there is a question to be raised as to whether the Trust is liable for both injuries, namely the injury to her right hand when the plaintiff tried to rescue her bilum. It is submitted that the action by the plaintiff was negligent and her claim for this injury should fail for her contributory negligence.

However, I am satisfied that the plaintiff was a quite unsophisticated village woman; she was not even able to speak Pidgin in Court, but was only able to speak her own tokples. She merely reacted automatically to a situation created by the lack of care of the driver.

The driver well knew that some of the passengers he carried were quite unsophisticated village people and I find that drivers have an additional standard of care in such situations.

I contrast this situation with the case last year of Moki v The State (Unreported judgment of July 1989) where I found that a school-teacher who stood up in the back of a moving motor vehicle was guilty of negligence in that he himself should have known better and he himself committed the negligent act and therefore in that particular case the driver could not be held liable. I am satisfied that in this case that the Trust is liable for the injuries to both hands.

The initial report from the Nazarene Hospital was of a fracture of the right thumb which will mean her thumb could end up being permanently stiff and a fracture of her left wrist which will result in a restriction in her wrist movement. Later medical reports confirmed continued stiffness and disability in both hands and whilst those fractures have healed she will continue to suffer reduction in efficient use of both hands.

The plaintiff is a village woman who needs full use of her hands for her gardening and work in the village. Therefore any reduction in use and efficiency of her hands for gardening purposes is very serious. So I must assess the damages on the basis that there is a substantial reduction in the efficient use of both her hands.

It is difficult to put a figure on it as there are no clear figures available in the modern context. Yet her work in the village subsistence community must be very important for her own subsistence as well as her share in her family and community. One cannot just say she has children and they will look after her. I feel that the figure of K2 per week for economic loss is quite reasonable. I applied that figure for partial disability in the case of Thomas Tambi v The State (Unreported judgment N 780 of 30 October 1989).

Economic loss from the date of the accident to the date of the judgment namely, from 4 May 1987 to 19 March 1990 being 2 years and 46 weeks, comes to K300 and I would allow interest on that from the date of the accident to the date of judgment at 4 per cent. I would allow a further 15 years effective working life in the subsistence economy at K2 per week which capitalised on the 3 per cent table at 632 comes to a total of K1,264. I would allow a reduction of 10 per cent for contingencies, making a final figure of K1,138.

I would assess general damages for pain and suffering and loss of amenities at K8,000 and allow interest on K6,000 of that from the date of issue of the writ to the date of judgment. To summarise:

I therefore order judgment for the plaintiff in the sum of K9,764.00.

Lawyer for the plaintiff: P Kopunye.

Lawyer for the defendant: Young & Williams.