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David v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 28; N1164 (17 August 1993)

N1164

PAPUA NEW GUINEA
[In the National Court of Justice]

WS.420 OF 1991

ANNA DAVID

V

VEHICLES INSURANCE (PNG) TRUST

Mount Hagen: Woods J.
17 June, 19 July & 17 August 1993

Negligence - Personal injuries - Motor vehicle accident - Liability - Part of a large crowd next to the road - Driving too fast when approaching large crowd.

Damages - woman - Ankle and foot injuries - Partial disability - General Damages K9,000.

Cases Cited:

The following cases are cited in this judgement:
Caedmon Koiera [1984] PNGLR 365
Mol Kapia v M.V.I.T. [1991] Unreported N1024

P Ousi for the Plaintiff.
A Kandakasi for the Defendant.

17 August 1993

WOODS, J: The Plaintiff is claiming damages for injuries she received when she was struck by a motor vehicle on the Enga Highway near the Lai River Bridge near Rakamanda in Enga Province on the 1st April 1989. She states that she was attending a baptismal ceremony and there were hundreds of people in the area and a motor vehicle owned by the Post and Telecommunication Corporation which was travelling along the Highway went out of control due to the negligence of the driver and it veered off the road and struck her and caused injuries whereby she was hospitalised and has suffered permanent disability.

She says that she saw the vehicle going from side to side as if out of control or as if the driver was drunk and that the vehicle struck another person before it struck her. She says that she was standing just off the side off the road, not on the road and that the vehicle steered off the side of the road when it struck her.

Her story is supported by other witnesses who were at the scene. They give a story of many people gathered for the Baptism and the vehicle identified as a P.T.C. vehicle striking one person then seemingly carrying on out of control and striking the Plaintiff. One of the witnesses said he knew the driver Daniel Kaiko as he lived in the same village. There were suggestions that having struck one person the driver may have been trying to get away as he was frightened. However whether he was frightened or not the fact is that the evidence from the Plaintiff and other witnesses suggests that the driver must have been driving too fast when he approached the area where the people were gathered beside the road and having struck one person he was clearly driving too fast to have continued the way he did and struck the plaintiff.

The driver Daniel Kaiko gave evidence and said that as he was driving along the road he was stopped near Rakamanda by some drunk people who then got nasty with him and tried to stone him and in trying to get away from them he was struck on the head with a stone and went out of control and when he realised he had hit a pedestrian he feared for his life and tried to get away and in doing so further lost control and realised he had hit another pedestrian.

The police came to the scene after the incident and after the injured had been taken to hospital however people at the scene told the police what had happened and the investigating officer took measurements of the skid marks shown to him and estimated that the driver was driving fast. He interviewed the driver the next day in Mount Hagen.

There is therefore no question that it was the vehicle alleged as driven by Daniel Kaiko that struck the plaintiff that day. However it is submitted that there was no negligence in the driving of the driver rather it was the actions of the men who accosted him at Rakamanda and the others who threw stones at him which caused him to go out of control and strike the plaintiff. It is suggested that the driver had no option but to try and get away in whatever manner he could to avoid being attacked himself. I have not been referred to any authority that a possible fear of attack is a legal excuse for negligent driving in the manner described. It is not clear that the initial confrontation as described by the driver was serious enough to fear for his life. And his driving after that can only be seen as negligent. He must have been driving too fast in the vicinity of a crowd to have continued for so long out of control and knocking down 2 pedestrians. I can find no negligence or contributory negligence in the plaintiff.

DAMAGES:

The plaintiff was knocked down and was rendered unconscious by the vehicle and was taken to Sopas hospital. She apparently suffered severe leg injuries and some minor abrasions elsewhere on the body. Unfortunately there is no medical report from the Sopas hospital however other witnesses confirm that she was taken to hospital. She had to have an operation on her leg and she refers to a plate being put in her ankle and her leg and foot were immobilised in plaster for about 6 weeks. She initially went to Sopas Hospital but was soon moved to Hagen Hospital, she and her husband apparently lived in Mount Hagen. She says that she had to buy some crutches to get around with and she still has difficulty getting around. A recent medical examination suggests that the original injury was unstable and the healing left an abnormal gait. There is no evidence as to why the treatment did not result in a complete healing of the fractured ankle. There is no medical evidence before the court of the original injury and the treatment accorded and recommended. The question is therefore raised as to whether there was any intervening factor which has affected or influenced the healing. There is an obligation on a plaintiff to prove the case on the balance of probabilities, and whilst the plaintiff here has satisfied the court on liability and on the initial injury I feel that there was still an obligation on the plaintiff to accord the court more medical evidence especially that available from the initial examination and treatment. Therefore whilst I accept there may be some residual disability I am not prepared to accept the 70 percent as suggested by the recent medical examination is the responsibility of the defendant flowing from being struck by the vehicle on the 1st April 1989.

I will therefore assess damages on the initial injury to the foot and ankle, the incapacity whilst the leg and foot were immobilised and some residual incapacity following such an apparent compound fracture. The plaintiff is a married woman aged about 32 at the time of the accident, she has no separate employment but would seem to be a housewife living in Mount Hagen.

I am satisfied the case of Caedmon Koiera [1984] PNGLR 365 where there was a shortening of the leg and general damages was assessed at K19,000 was far more serious than this one.

In Mol Kapia v M.V.I.T. [1991] Unreported N1024 the plaintiff was an elderly village women who sustained a comminuted fracture of the left ankle which has left her unable to do much of the garden work required of her in the village economy. I feel that is a more serious case than the one before me.

I assess an amount of K9,000 for general damages. There was no evidence of any economic loss so I cannot find any amount for economic loss. There were some minor out of pocket expanses namely the crutches for K5. Interest will be added at 7% from the date of Writ to date of Judgement which comes to K1,500.00. Judgement for K10,505.

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Lawyer for the Plaintiff: Warner Shand
Lawyer for the Defendant: Young & Williams