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Nomane v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 23; N1019 (22 November 1991)

Unreported National Court Decisions

N1019

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 7 OF 1989
BOIYA DANNY NOMANE
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
21 October 1991
22 November 1991

NEGLIGENCE - Motor vehicle accident - Passenger in back fell off when vehicle took off - liability.

DAMAGES - wage earner - shoulder injury - 15% permanent disability - General Damages K8,000.00

Cases Cited

Matabe v The State & M.V.I.T 1988 [PNGLR] 309

Counsel

D. L. O’Connor for the Plaintiff

A. Kandakasi for the Defendant

22 November 1991

WOODS J: The Plaintifclaiming damagdamages for personal injuries he received on 18th of February 1985 when he fell off a motor vehicle onto the roadway such being caused by the negligent manner in which the drivere away from outside the Chue Chuave Health Centre before the Plaintiff had properly got onto the vehicle and sat down.

The Plaintiff’s story is that he was working at the Chuave Health Centre when someone came and asked if some people would get onto the back of his vehicle to give it weight and thereby traction to drive up the hill as the road was wet and slippery. Some people had already got onto the back and when he got on and before he had sat down the driver took off with a jerk and he overbalanced and fell off. He blames the driver for being negligent in not ensuring he was safely seated before he started the vehicle and took off.

Another witness agrees that it was near lunchtime when it happened and the Plaintiff was not seated when the vehicle took off. The witness does say that all the passengers got on at the same time. Another witness supports the Plaintiff’s story and says he was also on the back of the vehicle when the accident happened.

The driver gave evidence that he was the District Health Inspector for Chuave and on the morning of that day he was at the Chuave Health Centre and about to go out to the market on official duties and some of the employees at the Health Centre decided to go the market with him. So they hopped onto the back of the vehicle. He said he told them to sit down properly as the road was wet. Then when he drove off people shouted to him that someone had fallen off. The driver says it was early in the morning not lunchtime as the Plaintiff had asserted.

One thing that seems unusual from the evidence is that while the driver of the vehicle was a Health Department Officer neither the Plaintiff nor the Plaintiff’s witnesses say anything about knowing him. This seem unusual and casts some doubts on the credibility of the witnesses.

I am satisfied on all the evidence that there was some common purpose in the way the people get onto the vehicle either at the request or the permission of the driver and that in the end there was some carelessness on both sides in the casual behaviour of the Plaintiff in getting on a bit later than others and taking time to find a secure seat and the carelessness of the driver in taking off without being sure that everyone was securely seated. They all worked in the same Department and were therefore casually reacting in the circumstances. I therefore find equal responsibility in the driver and the Plaintiff for the accident.

ON DAMAGES

The Plaintiff fell off head first onto the hard road surface. He was treated first at the Chuave Health Centre where they noted he complained of some severe back and chest pain. He was referred to Kundiawa Hospital which also merely noted he was well except for mid stomach pain when coughing. He was hospitalised for 2 weeks. He was later examined by Dr Kulunga who noted he complained of a weak and painful right shoulder and arm and painful sternum and ribs when lifting heavy objects. It was noted his clavicle fracture had healed well. The Doctor diagnoses some permanent weakness in the right shoulder. However, Dr Flynn who treated the Plaintiff at Kundiawa Hospital could not confirm any shoulder damage or injury although he does not discount there may have been ligament strains.

This is one of those difficult injuries to see and assess. The Plaintiff did not lose his job because of the injury he has suffered some pain and will continue to suffer some disability and limitation in the use of his shoulder.

I have been referred to the case of Matabe v The State and M.V.I.T. 1988 [PNGLR] 309 where there was an assessment of 15% loss of efficient use of left arm. However I feel that this case is not as serious as Matabe’s case.

I would assess K8,000 for General damages. There is no economic loss. I apportion K4,000 of that to pre-Judgment loss and interest will run on that from the date of the writ 4th January 1989 to today.

To Summarise:

I order Judgment for K4,223.78

Lawyer for the Plaintiff: D. L. O’Connor

Lawyer for the Defendant: Young & Williams