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Kama v The State [1990] PGNC 50; N898 (3 August 1990)

Unreported National Court Decisions

N898

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1046 OF 1989
NARINGA MUR KAMA
-V-
THE STATE

Mount Hagen

Woods J
25 July 1990
3 August 1990

NEGLIGENCE - Motor vehicle accident - Pedestrian - Contributory negligence - Damages - old woman.

Cases Cited:

Kulange v M.V.I.T. (1990) n824

Piam v The State (1989) n783

Counsel:

P. Kopunye for Plaintiff

No Appearance for the State.

WOODS J: The tiff is suing for dama damages for injuries she received when she was struck by a vehicle owned by the State on 5th April 1988 wwalking on the Okuk Highway near the Wurup Road exit near Mount Hagen.

It appears frrs from the Police Report that the Plaintiff was crossing the Highway at the Wurup Road Exit when she was struck by the State vehicle ZGI 910 driven by an officer of the Office of Forests. Whilst the State filed a Defence the lawyer for the State failed to appear at the hearing to defend the action but did fax submissions later.

The Highways and roads of Papua New Guinea are very busy not only with vehicles but also with pedestrians and there is a continual duty of care on drivers when approaching areas of the Highways and roads where pedestrians are walking and especially at road junctions or where other roads exit main roads because people could be crossing at such points. So even in cases like this where a driver may not be criminally responsible where a pedestrian crosses a road there can still be a civil liability. In this case I accept the Plaintiff’s submission that liability be apportioned 40% to the Plaintiff and 60% to the owner of the vehicle.

I therefore find the State is liable to 60% for the injuries suffered by the Plaintiff.

The Plaintiff is a woman aged about 50 years. She lives in the village and is married and participates in gardening subsistence activities for herself and her family. In the accident she received a fractured right leg and lacerations and a blow to the head and had bleeding from the nose and ears. She was hospitalised with sedation because of the blow to the head for 2 weeks in hospital before full consciousness and orientation was regained.

She spent a further 2 weeks in hospital before being discharged and attended regularly for neurological assessment until October 1988.

At that stage she still complained of occasional dizziness and headaches and there was some malunion of the fracture. At that time it was assessed that she would continue to have dizziness and headaches which would disrupt her livelihood from time to time.

Further the malunion of the leg fracture would also mean some disability. The effect of the head injury and the leg injury would result in a 40% loss of ability to fully participate in her family and village obligations. In this situation there are no figures available to show economic loss so I must do what I did in the case PIAM v THE STATE (1989) N783 and assess an amount to cover the Plaintiff’s inability to fully participate in her required subsistence activity. In PIAM’s case it was a man aged about 50 years and I came to a global figure rather than working from an amount per week capitalised.

However in the case KULANGE v M.V.I.T (1990) N824 which involved a woman aged near 50 years where there was hand injuries I worked from a figure of K2 per week for economic loss for her partial disability till 60 years of age.

Having seen the Plaintiff in Court I feel that whilst the medical assessment is 40% disability the effect would appear to be almost total in her ability to participate in a garden subsistence earning. I propose to assess a global figure for economic loss past and future of K3,000.

For General Damages I assess a figure of K15,000 and I allow interest on a third of that at 8% from the date of the writ to today.

The amounts referred to by Counsel for the Plaintiff for medical and police reports are not damages arising out of the accident but costs in presenting the case so they become part of the costs not the damages claim.

To Summaries:

I order Judgment for K11,040.

Lawyer for the Plaintiff: P. Kopunye

Lawyer for the State: State Solicitor