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Joseph v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 52; [1991] PNGLR 453; N1021 (22 November 1991)

N1021

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

KAUM JOSEPH

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagan
Woods J

22-23 October 1991
22 November 1991

DAMAGES - Personal injuries - Particular awards of general damages - Injury to lumbar spine - Bed rest - Continuing disability and pain with progressive deformity - Married village woman - Reduced ability for traditional work - Award of K17,000 general damages including K7,000 for restriction on contribution to subsistence economy.

The plaintiff, a married village woman claimed damages for personal injuries arising out of a motor vehicle accident as a result of which she suffered a wedge stable fracture of the lumbar spine which was treated with bed rest but which left the plaintiff with continuing disabilities, including pain and a progressive spinal deformity. The plaintiff is permanently disabled from participating fully in the traditional village gardening economy.

Held

General damages for pain and suffering and loss of amenities should be assessed at K17,000 including a sum of K7,000 for restricted participation in the village subsistence economy.

Cases Cited

Kama Pupti v Kudjip and PNG [1986] PNGLR 283.

Statement of Claim

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

Counsel

D L O’Connor, for the plaintiff.
A Kandakasi, for the defendant.
Cur adv vult

22 November 1991

WOODS J: The plaintiff is claiming damages for personal injuries she received when she was involved in a motor vehicle accident which occurred on 9 February 1989 on the Bogia-Madang Highway. She states that she was riding on the back of a Toyota truck, registered No AJA 208 and had gone to the Bogia area to buy betelnut to bring back to the Highlands to sell and as the truck was going up a steep hill the driver lost control on the slippery wet road and the vehicle rolled backwards and off the road and overturned and one passenger was killed and the plaintiff and several other passengers were injured.

There is no dispute that the accident did occur and that the plaintiff was a passenger on the vehicle. But the defendant denies there was any negligence in the driver of the vehicle. It is submitted that the driver drove with normal care and applied the brakes when the vehicle stopped on the steep hill but still the vehicle slipped back and he was therefore unable to control the vehicle. The driver said he came to the mountain where there is no gravel and close to the top of the hill the vehicle skidded on the wet so he braked and the vehicle rolled and skidded backwards. If the driver was caught in a situation where he had stopped or stalled on a steep slippery road it must be because he underestimated the degree of difficulty in driving the vehicle on the road. If he is going to drive such a vehicle he must be competent to so drive it and be able to assess its capability. On this trip he failed properly to assess a situation and as a result he lost control of the vehicle. I find that he was negligent in his handling of the vehicle and in his assessment of the road.

It is further submitted that the plaintiff riding on the back of a vehicle which was not designed for carrying passengers was guilty of contributory negligence. I cannot agree with this. There is no evidence that the vehicle was over-crowded nor that the injuries were caused by the nature of the truck. They were solely because the driver lost control of the vehicle in a situation where he had failed properly to assess the circumstances of the road and the ability and power of the truck. I therefore find no contributory negligence.

ON DAMAGES

The plaintiff suffered a wedge stable fracture of the lumbar spine which needed bed rest and analgesics for five weeks. The doctor who treated noted that she was discharged well five weeks after the accident and with no neurological defects. However more recent medical evidence has suggested that there has been continual pain and that the injury does and will have continued effect. There will be progressive kyphosis with spinal deformity which will quite seriously affect her for the rest of her life. The effect will be some restriction on her ability to work in the traditional village cash crop gardening or subsistence economy. A more recent medical diagnosis is for 30 per cent permanent disability in the efficient use of the spine.

I accept that there is some pain and disability which will be a continual aggravation and limiting factor but it is a very hard disability to put a figure to. I agree that the case of Kama Pupti v Kudjip and PNG [1986] PNGLR 283 is a case which can be considered as a guide although I do not agree that the case is as serious as Kama Pupti’s case. The plaintiff spent five weeks in hospital and is clearly going to have pain and discomfort and limitations. I assess a figure of K10,000 for general damages.

There is also a claim for economic loss. It is said in evidence by the plaintiff and her husband that they were running a betelnut selling business between them: one or other would travel to the coast to buy betelnut and they would then sell it here in the Highlands. However there has been a wide range of figures given as to how much the husband and wife earned. The upper range of figures suggests that the income earned is well within the limits for meeting taxation obligations. However there is no evidence that such obligations were met so I am unable to accept such figures in the upper range.

Further these figures are a family partnership yet since her injuries which have only partially limited her, her husband says he is no longer operating the betelnut business but gives no real reason why. I can see no reason why he cannot continue that business perhaps partly scaled down. On the other hand if he is not doing this business himself then he must be doing something else. So I cannot find there is the loss of income from the effect of the injuries as claimed.

However I will accept that the plaintiff is and will continue to be partially restricted in doing any sort of work whether in a village subsistence economy or in a cash crop business. I therefore will assess a global amount to compensate for that and this will be added into the general damages, I will add a figure of K7,000 for this.

I therefore assess damages at K17,000 and allow for K5,000 of that to be for pre-judgment damages. Interest on that will be K329.30.

I order judgment for K17,329.30.

Judgment for plaintiff

__________________

Lawyer for the plaintiff: O’Connor & Hasu.
Lawyer for the defendant: Young & Williams.