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Kandaso v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 22; N1074 (1 July 1992)

Unreported National Court Decisions

N1074

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 1293 OF 1990
POKOWAN KANDASO
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
20 May 1992
22 May 1992
1 July 1992

NEGLIGENCE - motor vehicle accident - contributory negligence - driver suspected faulty steering.

DAMAGES - personal injuries - paraplegic - village woman - general damages K90,000 plus global award for economic loss.

Cases Cited

Kupil & Kensa v The State [1983] PNGLR 350

Oroeala v M.V.I.T. [1988-89] PNGLR 645

Pupu v The State [1979] PNGLR 108

Wally v M.V.I.T. [1992] N1029.

Counsel

P Dowa for the Plaintiff

A Kandakasi for the Defendant

1 July 1992

WOODS J: The Plaintiff is claiming damages for personal injuries she received in a motor vehicle accident which occurred on the Kaiap Road Wabag on the 5th May, 1990.

The Plaintiff's evidence is that on Saturday 5 May 1990 she was in Wabag looking for a ride to a village on the Kaiap road when Paul Sakaip came past driving a Toyota Landcruiser registered No AFR 635. He agreed to give her and others with her a ride and they got onto the back of the vehicle. While driving up the Kaiap road which is a very steep and narrow road the driver lost control of the vehicle and it rolled off the road. The plaintiff lost consciousness and recovered consciousness in hospital suffering from impaired sensation in the lower limbs and x-ray revealed a fracture of the second lumbar vertebra. A number of witnesses confirmed the plaintiff's story of the ride in the vehicle and the accident.

The defendant has denied liability. Whilst I am satisfied that the plaintiff was injured in the subject vehicle when it ran off the road I am asked to carefully consider certain aspects of the evidence.

The defendant is submitting that the plaintiff contributed to her own injuries by boarding the vehicle which she knew was defective and not roadworthy and she also boarded the vehicle without the express approval of the driver.

However there is no direct evidence of the vehicle being defective. It was suggested on the evidence that the vehicle may have been some years old but there is no technical evidence to show it was defective. Mathew Masket gave evidence of being asked to repair the vehicle after the accident and he noted no defects with the steering. The driver of the vehicle Paul Sakaip refers to the steering getting out of control and spinning causing the vehicle to run off the road. There is no evidence to suggest that was caused by a steering defect. The road is a very steep road and from my own knowledge it can be rutted and stoney and such conditions can cause the wheels to change direction and spin the steering wheel if you do not drive carefully and keep a strong control of the steering wheel.

The evidence is that after the accident when questioned by police the driver said that he had decided not to carry any passengers from Hagen because he "felt there was a steering fault and the steering is not steady as normal". When he got to Wabag the people from his same village they were already on the vehicle and "I told them that the vehicle has a problem so told them to move out but they refused. They refused so I drove slowly towards village". So even suspecting a steering fault he still drove from Hagen to Wabag. This clearly places the responsibility for negligence on the driver. If a driver suspects or knows there is a mechanical fault in a vehicle which could affect the safety of himself and any passenger yet he still drives the vehicle this is a gross irresponsibility almost amounting to criminal negligence. It was his responsibility to stop driving the vehicle and leave it to be checked or repaired at the nearest repair place. By driving it with passengers he is assuming liability for any accident that may happen.

Of course the plaintiff and other witnesses deny there was any conversation about any fault with the vehicle or about them not being allowed on. In view of Paul Sakaip's acknowledgement of a possible fault I must place full liability for negligence on the driver of the vehicle.

With respect to any contributory negligence for riding on the back of an open back utility I find that the injuries suffered by the plaintiff was not contributed to by the riding on the back without safety features but by the manner of the driving of the vehicle. Whilstever the authorities which include the defendant condone by inaction the riding on the back of utilities without seats and appropriate safety features then I cannot find such passengers partly negligent without special aspects of the riding in the back such as was found in the case of Wally v M.V.I.T. 1992 N1029 and Oroeala v M.V.I.T. [1988-89] PNGLR 645.

I am therefore satisfied that there is a claim for negligence against the driver of the vehicle AFR 635 and therefore against the Motor Vehicles Insurance Trust.

ON QUANTUM

The Plaintiff received a fracture of the second lumbar vertebra which has rendered her a permanent paraplegic with 100 percent permanent loss of function of both legs and permanent incontinence of urine and faeces. She spent over a year in hospital however much of the extended stay was because her family could not care for her properly until they could get a wheelchair and do alterations to their house to accommodate her. It is therefore clear that her enjoyment of life and ability to live independently are completely impaired and she will be confined to a wheel chair and to requiring assistance from others. Awards of general damages for paraplegia have ranged from K30,000 in 1979 in the case Pupu v The State [1979] PNGLR 198 to K90,000 in 1983 in the case Kupil & Kensi v The State [1983] PNGLR 350. The plaintiff was in her young 20's at the time of the accident and has lost a full enjoyment of life including the chance of a normal marital relationship. I consider the awards given to Aundak Kupil and Kauke Kensi in 1983 in the above case and I assess general damages at K90,000. For economic loss the plaintiff being a village lady had no permanent income earning job. She was an average villager who was expected to fulfill her fair share in the normal rural subsistence economy with gardening for food and helping with the coffee cash crop. It is very hard to assess exact figures for participation in the village subsistence economy but there is no doubt that the value of an individual's effort in vegetable gardening and coffee production can easily be around and over the K1000 mark in a year. I will however assess global amounts of K1600 for past economic loss and K12,000 for future economic loss.

The Plaintiff is also claiming special damages for future nursing and medical expenses including replacement of a wheel chair and alterations to her home to accommodate her disability however such matters were not pleaded in the statement of claim. The Rules of the National Court have with respect to death or personal injury cases in o.8 r.33 set up a code of pleading for the more expeditous handling of such cases and all matters which are to provide the basis of the calculation of damages are required to be included in the Statement of Claim and if they are not itemised accordingly then the evidence to support them cannot be brought. The abovementioned items of special damages were not pleaded therefore they cannot be included in the assessment.

I will allow interest at 8 percent from the date of the writ on K10,000 of the general damages. I will allow interest at 4 percent on the past economic loss from the date of the accident.

To summarise:

I order judgment for K104,965.22. As the Motor Vehicles Insurance (PNG( Trust Limit of liability is K100,000 there will be judgment for K100,000 plus the interest component of K1,365.22.

Lawyer for the Plaintiff: Henao Priestley

Lawyer for the Defendant: Young & Williams