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Kiap v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 12; N1236 (5 July 1994)

Unreported National Court Decisions

N1236

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 554 OF 1991
TAKIP KIAP
v
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
23 May 1994
5 July 1994

Counsel:

P Dowa for the Plaintiff

A Kandakasi for the Defendant

5 July 1994

WOODS J: The Plaintiff is claiming damages for personal injuries she received when she was struck by a motor vehicle whilst walking besides the Highlands Highway near Togoba Mount Hagen on 13 October 1990. She was knocked unconscious at the time and was taken to Mount Hagen Hospital for treatment and spent over 5 months hospitalised with leg injuries.

She says that she was walking with her small daughter along the side but off the roadway, there were many people around because there had been some sort of trouble in the area, and suddenly a vehicle, a Mitsubishi Canter truck, came off the road and struck her. She admits she really had no time to see it. She then woke up in hospital.

A witness Bakri Jacob gave evidence of being in the vicinity of the road at the time on the day of the incident and that there was some trouble in the area and a group of criminal stole a vehicle and were driving along the road and the driver must have lost control because the vehicle ran off the road over the plaintiff. When he heard the cries he came over to where the incident happened and helped to pull the vehicle off the woman and then helped to take her to hospital. He identifies the vehicle as being a yellow Mitsubishi Dyna truck with the words CB Chee written on the door. He then said that after the accident the villagers kept the vehicle and took it to Waipip Village where he and the victim came from.

A policeman Jacom Kumbalong gave evidence of being on duty at Mount Hagen Police Station and being told about the accident but of not going to the scene till the next day. He compiled a report from what he was told at the time and from seeing skid marks at the scene and from seeing the seized vehicle at the village. Upon seeing and being told that was the vehicle he went to the owners of the vehicle and obtained details of the registration and insurance. Whilst the story appears to have been that the vehicle had just been stolen at the time of the accident there does not seem to have been a proper police report and investigation of that theft. And there appears to have been no search for the driver who had supposedly been driving the vehicle without the permission of the owner. The policeman had no reason to doubt the circumstances of the accident as it was reported to him and as he saw the next day. The police officer did visit the plaintiff in hospital although he seemed confused as to which leg had been badly injured.

An officer of the company that owned the subject vehicle gave evidence confirming the ownership and registration and insurance from the records held in the company's office. Although he says there was no statements concerning the theft of the vehicle nor was there evidence of any claim for compensation having been made.

Is the evidence sufficient to find that there was the incident as alleged. There appears to be some differences as to whether there was a tribal fight in the area at the time or not, or whether it was just some criminal blocking the road and stealing a vehicle. Just because the vehicle was held in the village the next day does that firmly establish that it was the vehicle that struck the plaintiff. There is some confusion over whether the 13 October was a Saturday or a Wednesday - I do not regard that of great consequence, as not many people would remember the exact nature of the days especially people for whom the calendar is not a daily necessity.

I am satisfied that the plaintiff was injured in an accident, the hospital records confirm her admission to hospital on 13 October. There is enough identification of a vehicle which was later seized into the village having caused injuries to a member of that village.

So on the balance of probabilities I am satisfied that the plaintiff did receive injuries from being struck by the Mitsubishi truck owned by CB Chee on 13 October 1990 which was driven negligently across and off the road into the plaintiff. And there is no suggestion from the evidence that the plaintiff was walking negligently on the main part of the road, rather she was walking off the side of the road so I find no reason to find any contributory negligence.

DAMAGES

The plaintiff suffered a broken leg and was hospitalised for some months during which a steiman pin was inserted into the leg. She has suffered some permanent disability to her leg and is now walking with the aid of a stick.

At the time of the hospitalisation Dr Seta noted that she had some stiffness of the right knee but that was not surprising as she had suffered two fractures. At a later examination he noted advanced osteoarthritis. A more recent examination by Dr Kulunga suggests that she will continue to develop post traumatic arthritis. He considers that in view of her village duties she will have a permanent disability in the effective use of her right leg, he gives a figure of 25 percent for that. Dr Kulunga’s report was given in 1993. There is another medical report by another doctor in 1991 which give a higher estimate of disability however I feel that the court should accept the estimate later in time of Dr Kulunga.

The plaintiff is a widow with some children. There seems to be some confusion as to when her husband died however in the he village social environment that does not necessarily make that much difference as the woman still has a high level of physical work to do whether married or unmarried. And this is work both to support herself and her family and also for any cash earned from sale of produce. And this is work that is expected whether her husband is there to help support her or whether others in the society are expected by tradition to assist her now that she is widowed.

I am satisfied that the plaintiff has been severely restricted in doing the work expected of her in her society. I have been referred to the case Deko Tommy [1991] N1023 where general damages of K25,000 was awarded however that was to cover economic loss as well for a man and also to cover loss of opportunity of outside employment and there was a higher level of disability.

In the case of Kapia 1991 N1025 again there was a higher level of disability. In the case of Moia [1988] PNGLR the plaintiff was a bus driver who suffered from fractures in both legs and there had been malunion and general damages of K20,000 was awarded.

Considering all the cases and considering the level of disability I will award general damages of K18,000.

On economic loss I am satisfied that the plaintiff would have been capable of generating an amount of at least K5 per week from garden work. She is now in her mid 40's so I will award a figure for economic loss at K5 per week for 15 years this comes to K3,160.

I award damages of K21,160. I will allow for interest at 8 per cent on K8,000 of the general damages from the he date of issue of the Writ. This comes to K1,840.

I order judgement for K23,000.

Lawyer for the Plaintiff: P Dowa

Lawyer for the Defendant: Young & Williams