N11642

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 233, 381, 386 & 387 OF 2023

KEMMA SAKA,
PINGIN NEWMAN,
JOE PITUI, and
DIA MARTIPALU
Plaintiffs

v

MOTOR VEHICLES INSURANCE LIMITED
Defendant

WABAG: ELLIS J
10, 15 DECEMBER 2025

PRACTICE AND PROCEUDURE – Particulars – failure to comply with Order 8 rule 33(1) – failure to provide date of birth and village – no prejudice to defendant – request to dismiss proceedings rejected

EVIDENCE – Plaintiffs’ evidence unreliable – failure to satisfy onus of proof –
desirability of findings on quantum when case on liability rejected

NEGLIGENCE – Contributory negligence – passengers knowingly boarding overloaded vehicle – clearly private vehicle, not PMV – 30% reduction assessed

Cases cited	
Bagu v Motor Vehicles Insurance Limited [2023] PGNC 19; N10111
Colbert v The Independent State of Papua New Guinea [1988-89] PNGLR 590
Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580
Costello v Talair [1985] PNGLR 61
Kerr v Motor Vehicles Insurance (P.N.G.) Trust [1979] PNGLR 251
Kunumb v Independent State of Papua New Guinea [2008] PGNC 134; N3480
Maka Kewe v Thomas Kudjip [1986] PNGLR 279
Moka v Motor Vehicles Insurance Ltd [2004] PGSC 38; SC729
Motor Vehicles Insurance Limited v Kol [2007] PGSC 38; SC902
Motor Vehicles Insurance (PNG) Trust v James Pupune [1993] PNGLR 370
Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694
Tambi v The Independent State of Papua New Guinea [1988-89] PNGLR 648

Counsel
P. Kopunye for the plaintiffs
M. Kambao for the defendant

JUDGMENT

1.	ELLIS J:  	At a call-over of the civil list in Wabag on 3 October 2025, the Court was told that these matters were ready for hearing and that they should be heard together as all four plaintiffs were alleged to be passengers in a motor vehicle that was said to have been involved in an accident on Friday 5 November 2021.  Three days were allocated for a joint hearing of all four claims.  Just over one day before the hearing was due to commence, an application for an adjournment was made.  That application was rejected with written reasons provided.  

2.	Since the parties were relying on numerous affidavits, a direction was made for the preparation of a court book, containing an indexed and paginated bundle of the documents upon which each party relied in each of the four proceedings.  As neither party had complied with that direction, eight court books were prepared by the registry so the scarce resource of the court’s hearing time would not be wasted.

3.	At the outset of the hearing, it was indicated that the lawyers for the parties had agreed not to cross-examine the witnesses of the other party.  As a result, it was only necessary to provide time for submissions to be made, and the hearing concluded in one day.

4.	The evidence that was tendered in all four cases may be summarised as follows:
Exhibit
	Description	Proceedings
(all of 2023)
	Plaintiff	
A	Plaintiff’s court book (pp 1-95)	WS 233	Kemma SAKA	
1	Defendant’s court book (pp1-38)	WS 233	Kemma SAKA	
B	Plaintiff’s court book (pp 1-87)	WS 381	Pingin NEWMAN	
2	Defendant’s court book (pp 1-22)	WS 381	Pingin NEWMAN	
C	Plaintiff’s court book (pp 1-96)	WS 386	Joe PITUI	
3	Defendant’s court book (pp 1-22)	WS 386	Joe PITUI	
D	Plaintiff’s court book (pp 1-81)	WS 387	Dia MARTIPALU	
4	Defendant’s court book (pp1-22)	WS 387	Dia MARTIPALU	

Case of Kemma SAKA – liability

5.	It is convenient to here note that the liability issues, which included an allegation of contributory negligence, had the case of this plaintiff as the focus. There was no reference to the other plaintiffs which was not surprising since not only were the witnesses other than the plaintiff common to all four cases but also their evidence was the same on the issue of liability.

Evidence for the plaintiff

6.	Kemma Saka (the plaintiff) provided two affidavits, sworn on 20 February 2023 (A1, ie from page 1 in Exhibit A) and 21 March 2025 (A79). 

7.	 In the first of those two affidavits, the first nine paragraphs did not explain what happened at all: those paragraphs were plainly ‘lawyer-driven’, containing particulars of the accident and allegations that were said to have been obtained from the Police Accident Report.  It was not until the tenth paragraph that he alleged what happened but, in that paragraph, he claimed the accident occurred on 5 April 2021.  In paragraph 11 he gave hearsay evidence by purporting to quote what was in the Police Accident Report.  Despite not being an expert witness, the plaintiff gave opinion evidence as to the cause of the accident and, despite not being a lawyer, gave opinion evidence as to the liability of the owner of the vehicle.  It was said that, when he went to “the Hospital”, where he was treated then sent home as there were no beds.  He then gave further hearsay evidence of the opinion of a doctor.  His evidence, at paragraph 22, was that his injuries from the accident restrict his “daily village work and activities, to supporting (sic) myself and my dependants”.  In paragraph 23 the plaintiff said:  I think, I will recover from my current disabilities in future, because of my age and, the type of injuries I had suffered.

8.	Paragraph 27 listed the tasks this plaintiff said he used to do before the accident.  He said he now pays other people to carry out those tasks and, although he claimed to pay them “between K100 and K150 each time they help me”, he did not give evidence of how often that occurs.  He also claimed that, when he does not have cash, he shares his garden produce with those people but there was no evidence to indicate either the nature or frequency of what was provided.

9.	This affidavit went on to suggest the plaintiff had incurred out-of-pocket expenses of between K800 and K1,500 and he said he was claiming K900.  His documented out-of-pocket expenses were said to be K480 for a medical report, K20 for an X-ray, and K250 for stationery and photocopies.  As a result, there was a claim for K750.  Despite this being an affidavit, which should provide evidence and not a submission, the plaintiff then set out details of his claims, which totalled K68,110, and then concluded with submissions as to costs.

10.	The second affidavit of the plaintiff suggested that his lawyer advised him to try to contact the owner of the vehicle and sets out what he did.  However, there is nothing in that affidavit which assists with any of the issues in these proceedings.

11.	Dr Pesh provided an affidavit that was sworn on 19 February 2023 (A21).  Curiously, he said the plaintiff’s lawyers “furnished me a Medical Report allegedly done by me”.  He claimed to recall having examined the plaintiff and prepared that report.  His assessment of “30% loss of efficient use of the left hand, and 20% loss of function of the left rib/chest” was followed by a paragraph that suggested the plaintiff “will not recover from her current disabilities in the years ahead of her”.  A copy of the report, which was annexed to the doctor’s affidavit (A23), consistently referred to the plaintiff using the words “she” and “her”.  It is noted that the letter from the plaintiff’s lawyers to Dr Pesh sought a copy of the “Discharge Summary Note dated 20th November 2021” which was not provided and is not in the evidence.

12.	Snr Sgt Lakati also provided two affidavits.  The first, sworn on 20 February 2023 (A26), included a claim that he could recall preparing a Police Accident Report which showed the date of accident as 5 November 2021, but that report was not dated until almost a month later: 3 December 2021.

13.	The second affidavit, sworn on 21 August 2025 (A90), suggests the accident was reported, not that he attended the scene of the accident.  He attached a copy of a page (A94), said to be from an occurrence book, which contained 16 lines of handwriting under a date of 6 November 2021.  What was said to be a typed version of that handwriting was also provided (A95), but that only serves to confirm that there was a report, on 6 November 2021, by a “National Male” of a motor vehicle accident that was said to have occurred the previous day.

14.	Mr Kopunye provided four affidavits that were sworn on 20 February 2023 (A31), 8 July 2023 (A56), 30 January 2024 (A65) and 13 May 2024 (A70).  The first of those affidavits sets out what he did in relation to the plaintiff’s claim.  It must be noted that annexure H was a letter dated 30 January 2023 from Mr Lingo (A53) that was followed by two pages (A54-55).  There are three matters that need to be recorded in relation to those two pages:

(1)	There is no reference to either of those two pages in the letter from Mr Lingo.
(2)	As the first of those two pages was headed: ”Schedule of report originated from your hospital” (emphasis added), it appears those pages were prepared for Mr Lingo and not by Mr Lingo.
(3)	The entry for this plaintiff only records one injury: “Fracture of left forearm”.

15.	The second affidavit only provides copies of letter to the defendant.  The third and fourth affidavits referred to attempts to settle the plaintiff’s claim.  None of those four affidavits are relevant to the question of liability.  It is difficult to understand why the notice that was filed expressed a desire to rely on any of those affidavits. 

16.	Felix Lingo said, in his affidavit (A60), that he was a records clerk at the Wabag General Hospital.  He annexed a copy of a letter from the plaintiff’s lawyer dated 21 November 2022 (A63) which suggested that “a copy of the Discharge Summary Note issued on the 20th November 2021” was provided with that letter.  However, no copy of that summary note appears to have been included in the evidence of this plaintiff and there is no explanation for its absence.  The letter Mr Lingo sent in reply (A64) did not include any copy of any record or any other document.  Instead, it suggested the plaintiff was one of seven persons of whom it was said: 

Our records [indicate] and confirm the dates of admission through emergency department and were discharged from emergency ward due to bed shortage in the wards to be followed up at the clinic.

17.	Matali Petaki said, in his affidavit (A74), that he was the driver of a private vehicle, being a Hyundai Dyna truck that was owned by his employer, Issac Lete.  His evidence was that, on 5 November 2021, he collected fare-paying passengers, without the knowledge of that owner, as if the vehicle were a public motor vehicle (PMV).  His evidence, as set out in the paragraphs that were numbered 12 to 17, was as follows:

12	The Vehicle was overloaded with store goods as well as other store goods of the passengers and the passengers themselves;

13	At about 4.00 pm, I drove up the hill at Kiwa section of the road, with the vehicle overloaded with goods and passengers;

14	When I drove up the hill, the load I had at the back caused the heavy engine to cut off, and I lost control, and the Vehicle reversed back at high speed;

15	The Motor Vehicle went off the road to the right side, and rolled over two (2) times;

16	Many of the passengers I collected were injured and one person died; 

17	I think there were more than twenty (20) passengers, but luckily only eleven (11) sustained injuries, that is from what I can recall now;

18.	Inexplicably, this witness said that he had not been charged by the Police in relation to the death of one of the passengers.

19.	Simon Tenne swore an affidavit on 21 March 2025 (A82).  Both parties expressed a desire to rely on his affidavit.  His evidence was that, on the afternoon of 5 November 2021 he heard a loud noise and people shouting: “car accident”.  

20.	He said he saw a Hyundai truck overturned, with may persons injured, and that one of them died.  He said he did not know the names of the injured passengers.

21.	Tarius Tanda also swore an affidavit on 21 March (A86).  Again, both parties expressed a desire to rely on his affidavit.  His evidence was that he saw that the Hyundai Dyna truck “reversed downhill at high speed”, that it ran off the road to the right side, then “overturned and rolled down”.   He said that one person died and ten others were injured but did not name any of them. This witness also gave evidence that served to confirm that the truck he observed was owned by Issac Lete.

Evidence for the defendant

22.	Simon Kaero said, in his affidavit (1/1, ie from page 1 in Exhibit 1) that he could not recall there being an accident on 5 November 2021 involving Issac Lete’s vehicle.  He also noted that the Hyundai truck owned by Issac Lete is a private vehicle and not a PMV.

23.	Lawrence Piason provided affidavit evidence (1/4) to the same effect, namely that he is familiar with both the vehicle owned by Issac Lete and the place where the accident is said to have occurred.

24.	Keisha Nete is employed by the defendant’s lawyers.  A letter annexed to her affidavit (1/11) served to confirm that arrangements were made for the four plaintiffs in these proceedings, and others, to be medically examined by a doctor in Mount Hagen.  Her affidavit (1/7) also indicated that she met with Issac Lete on 30 October 2024 when he told her his vehicle was not involved in the accident alleged by this plaintiff, and others.  She said an affidavit was prepared for and sworn by him on that day.  A copy of that affidavit was annexed to her affidavit (1/13).   The affidavit of this witness also indicated that, when the plaintiff’s lawyer was invited to withdraw these claims due to the affidavit from the owner of the vehicle, the response was to file and affidavit from the driver.

25.	Michelle Pint swore an affidavit (1/20) which explained the delay in filing a defence in these proceedings and is this not relevant to the determination of liability.

26.	Issac Lete said, in his affidavit (1/37), that he was the owner of the subject vehicle.  That affidavit included the following paragraphs:

5	I could recall that my vehicle was involved in that alleged accident and at that material time, no other persons or passengers were there in the car except my relatives.

6	I could recall as I was informed, passengers or persons in the vehicle at the time of the alleged accident were my relatives and no one else.

7	I have recently been shown the names of the following individuals, allegedly involved in my vehicle accident as:

(1)	Mr. Joe Pitai;
(2)	Mr. Max Nite;
(3)	Mrs. Grace Iki;
(4)	Mr. Kemman Sakai;
(5)	Mr. Rexsi Yanda;
(6)	Mr. Dia Martipalu;
(7)	Mr. Pingin Newman
8	I am informed that these individuals named in para 7 here in this my affidavit instituted Wabag National Court proceedings [making claims] against MVIL, whom I have no idea of them having [been] involved in my vehicle accident.
9	Further, I could not recall and do not have any recollection or possibly remember or have any information regarding those individuals having [been] involved in my alleged vehicle accident and sustained the injuries as alleged.
10	None of the individuals mentioned in para 7 had approached me or indicated in any way, they had sustained injuries involving my vehicle, at the material time of the alleged vehicle accident and up to the time of swearing this my affidavit.
Submissions for the plaintiff

27.	On the question of whether the accident occurred, reference was made to the evidence of Snr Sgt Lakati, notably the annexures to his second affidavit (A93-95).  Secondly, reliance was placed on the plaintiff’s Health Record Book (A9).  Thirdly, to what were said to be hospital records (A54 and A64).  However, it is clear the pages A54-55 are not hospital records, but are pages provided by the plaintiff’s lawyers to Felix Lingo.  It is convenient to here note that the 21 November 2023 letter (C23) from the plaintiffs’ lawyer refers to a Schedule in a manner that favour the view that pages A54-55 were provided to Felix Lingo and not by Felis Lingo.   Fourthly, there was reference to the affidavit evidence of the driver (A74).  Fifthly, reference was made to the evidence of the independent witnesses (A82 and A86).  

28.	After suggesting that the owner was in Port Moresby and referring to the evidence of two witnesses (1/1 and 1/4) who said they did not know of the accident, it was said that, on the balance of probabilities, there was an accident and that this plaintiff, and the other three plaintiffs, were injured in that accident.

Submissions for the defendant

29.	Written submissions were marked for identification (MFI 1).  In those submissions it was contended that the plaintiff had failed to comply with the requirements of Order 8 rule 33(1) of the National Court Rules, which requires the provision of particulars in personal injury cases.

30.	It was noted that the plaintiff had failed to provide his date or place of birth, or details of his village, and that Order 8 rule 33(4) provided for the required particulars to be treated as a statement of claim, with the contended consequence that there was no valid statement of claim before the Court.  Reliance was placed on the use of the word “shall” in both rule 33(1) and rule 33(4).  

31.	Reference was made to what was said by Kandakasi J (as he then was) in Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694 (Tole):

The law on pleadings in our jurisdiction is well settled.  The principles governing pleadings can be easily summarized in terms of, unless there is foundation in the pleadings of the party, no evidence and damages or [relief] of matters not pleaded can be allowed.

32.	There was what was purported to have been said in Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580 (Collins), but the quoted words do not appear in that decision.

33.	It was noted that the report of Dr Pesh suggested the plaintiff was a female and it was contended that weight should be placed on the affidavit of the owner, Issac Lete, which was said to suggest there was no accident.  Further, that the Court should not rely on the evidence of Snr Sgt Lakati as he did not attend the accident, with the result that his evidence was hearsay with the source not being identified.

34.	The defendant’s case was that the witnesses of this plaintiff and the other plaintiffs did not tell a credible story in support of genuine claims, with the contended result that all four proceedings should be dismissed with costs.

35.	Oral submissions for the defendant noted the time it took for the plaintiff to provide evidence from the driver of the subject vehicle, and that such an affidavit was only provided after multiple directions hearings and after it was denied that the accident occurred.  It was noted that the Court did not have benefit of seeing the demeanour of the witnesses. 

36.	The issue of the gender of the plaintiff was also raised, and it was questioned whether Dr Pesh ever saw the plaintiff.  The written submissions based on Tole and Collins were revisited.   It was contended that (1) what was alleged in the Statement of Claim at [9] did not match the evidence, (2) the police officer did not witness the accident, (3) the occurrence report was not legible, and (4) that the plaintiff should not be permitted to proceed by reason of the failure to comply with Order 8 rule 33.

37.	It was indicated that the defendant’s case was that this claim was not genuine and that the plaintiff had not made out his case on the balance of probabilities.

38.	If liability was determined in favour of the plaintiff, it was submitted that there should be a reduction for contributory negligence because (1) the driver of the vehicle was not permitted to take passengers, (2) the owner of the vehicle was not informed, and (3) the plaintiff assumed the risk of injury.  It was contended that a finding of contributory negligence of 70% should be made.

Submissions in reply

39.	As to the gender of the plaintiff, reference was made to a photo (A18) and that Dr Pesh was not called to explain that discrepancy.  

40.	It was suggested that the National Court Rules are only a guide and a means to an end.  A submission was made that it was sufficient for the defendant to know the plaintiff’s case and the decision of Motor Vehicles Insurance (PNG) Trust v Pupune [1980] PNGLR 370 (Popune) was cited in support of that submission.  A submission was made that, if the defendant’s argument as to failure to comply with the National Court Rules succeeded, the deficiencies were not sufficient to warrant a rejection of the plaintiff’s case.

41.	After making obvious submissions that the plaintiff cannot make a claim against the owner or the driver, it was said that the reason for the provision of an affidavit from the driver was an order made by Kandakasi DCJ at a directions hearing.  It was contended that the Court should not rule against the plaintiff due to late evidence.  

42.	The plaintiff’s case was that, when the entirety of the evidence was considered, the Court should be satisfied that there was an accident and that the plaintiff was involved in that accident.

43.	On the issue of contributory negligence, it was said that the defendant had not led evidence that the vehicle was overloaded and that the plaintiff took on the risk of an accident.  Without referring to any prior decisions, it was contended that there was no instance of more than 30% being allowed for contributory negligence of the kind alleged in this case.

Relevant law

44.	Tole included a consideration of the need for not just pleading each claim but also providing particulars to define the issues and enable the defendant to know the nature of the case that the defendant needs to meet so it can respond to the claim.

45.	Collins was cited but does not require further consideration since the words quoted in the written submissions do not appear in that judgement.

46.	Pupune is not relevant as it was a case in which evidence was led, without objection, in relation to a claim that was not pleaded.  It was held that the defendant/ respondent could not, in those circumstances complain about the failure to plead.

Consideration

47.	It must be observed that the plaintiff’s case was poorly (1) pleaded, (2) prepared, (3) pursued, and (4) presented. 

48.	Supporting examples for those four matters were (1) the cover page of the writ of summons named the plaintiff as “Mrs Kemma Saka” but the statement of claim said the plaintiff was “Mr Kemma Saka”, (2) the notice of discharge, said to have been issued on 20 November 2021, was not included in the evidence, (3) it was not until the plaintiff’s lawyer was prompted by the Deputy Chief Justice that an affidavit from the driver was obtained, and (4) it was suggested that a page (A54) was a contemporaneous hospital record when it was plainly not a document prepared by a hospital, was not referred to by the hospital employee who provided evidence, and was clearly a document prepared by the plaintiff’s lawyer for the purpose of this litigation.

49.	Further, it is noted that none of the four plaintiffs attended the hearing and that the parties appeared to regard compliance with the orders made by the Court on 3 October 2025 optional, notably the allocation of hearing dates and the direction for each party to file and serve a Court Book prior to the hearing.

50.	There are three issues requiring determination in relation to the issue of liability: (1) whether there was an accident involving the Hyundai truck on 5 November 2021, (2) if so whether the plaintiff was a passenger in that truck on that day, and (3) if so, whether there should be a reduction for contributory negligence.

51.	On the first question, whether there was an accident, there are two witnesses who said there was and two witnesses who said there wasn’t.  The traffic accident report and the entry on the Police’s Occurrence Book have no probative value because (1) Snr Sgt Lakati did not attend the scene, and (2) the typed facsimile of what is recorded in the Occurrence Book reveals that entry to be based on what was said to Police by an unidentified “National Male Complainant”.

52.	If that were the only evidence, in the absence of a rational basis for preferring the plaintiff’s evidence to that of the defendant, the plaintiff would have failed to prove his case on the balance of probabilities.

53.	As to the second question of whether, if there was an accident, the plaintiff was one of the passengers at the time of the accident, the evidence of the driver did not include any identification of the passengers.  Nor did either of the eyewitnesses identify any of the passengers.    The owner disputed that the plaintiff was a passenger.

54.	While Snr Sgt Lakati named the plaintiff as one of the passengers, that was hearsay as he did not attend the scene.  The Traffic Accident Report records what he was told by an unidentified “National male”.  Further, that Traffic Accident Report he prepared suggested “driver was charged for D. D. C. D”, obviously a reference to dangerous driving causing death, but the evidence of the driver was that he was not charged.  No explanation was provided for that discrepancy.

55.	The evidence of Mr Lingo is of low weight because his letter (A53) referred to “Our records …” but did not provide them.

56.	The only evidence in support of the plaintiff being passenger is that of the plaintiff who said (A4 at [10], emphasis added): 

I do recall that on the 5th April 2021 at about 4.00pm, along Wapenamanda/Tsak Road, Wabag, in the Enga Province, the following occurred: …

57.	The only other reference to the accident in the plaintiff’s first affidavit is in [7] where he sets out details and then, in [8] says those details come from the Police Accident Report.  As a result, that evidence is double hearsay, because it was what someone told the Police which information was then provided to him.

58.	Checking the primary affidavits of the other plaintiffs (B1, C26 and D23) reveals that they also allege they can recall the accident having occurred on 5 April 2021.  That suggests that each of the plaintiffs simply signed what their lawyer prepared for them.  None of the plaintiffs was called to say that the date of 5th April 2021 was an error.

59.	The only evidence that provides support for the plaintiff being injured in a motor vehicle accident on 5 November 2021 is an entry in his Health Record Book. While that handwritten entry, under a date of 5 November 2021, suggests the plaintiff was in a motor vehicle accident, that is obviously what a health care worker was told.  It is reasonable inference the source of that information was the plaintiff. 

60.	There was no explanation as to why it was said that the plaintiff went to Wabag General Hospital when Mambisanda Hospital was considerably closer to where it was claimed the accident occurred, as was noted in the Defence, at [5.2].  It is noted that the plaintiff did not attend a medical appointment that was ranged by the defendant and did not attend the hearing.  No explanation was provided for either of those non-attendances.

61.	The suggestion of the plaintiff’s lawyer that the National Court Rules only provide guidance can be stated and rejected in the same sentence.  

62.	The suggestion of the defendant’s lawyer that the plaintiff’s case should be rejected because of a failure to provide particulars has only technical merit and the failure to provide the date of birth and exact location of where the plaintiff lived are not matters that deprived the defendant of the ability to know the nature of the case it had to meet.  

63.	It is not considered that the plaintiff’s failures to comply with Order 8 rule 33 of the National Court Rules are sufficient to warrant dismissal of the plaintiff’s claim in the absence of evidence to show that the defendant was prejudiced by those failures as the details not included in the Statement of Claim appear to have been set out in the plaintiff’s first affidavit.  This is not a case where the plaintiff failed to plead his case: the deficiencies are confined to the provision of a few particulars that should have been included in the Statement of Claim but were indicated in the first affidavit of the plaintiff.

64.	In this case, the Court faces two alternative conclusions:

(1)	Find that the plaintiff has not proved the liability of the defendant, on the basis   that, in view of the conflicting evidence which, in the absence of cross-examination, does not prove the plaintiff’s case on the balance of probabilities, especially when he has provided sworn evidence that he recalls the accident having happened on 5 April 2021.
(2)	Find that the plaintiff has proved a case on liability, based on his Health Record Book containing an entry for 5 November 2021 that is consistent with the plaintiff having been injured earlier that day ion a motor vehicle accident, which would require assuming the 5 April 2021 as an error made by the plaintiff’s lawyer that he did not detect.

65.	The Court favours the former alternative because, while there is unsworn hearsay evidence, based on a health record book, that the plaintiff was injured in a motor vehicle accident on 5 November 2021, there is sworn evidence from the plaintiff who claimed to recollect being involved in a motor vehicle accident on 5 April 2021.  

66.	A court cannot presume an error in affidavit evidence.  If that date was a mistake, it should have been corrected either with a further affidavit or oral evidence.  It is convenient to here note that the first affidavit of each of the four plaintiffs was in a common form.  That provides clear support for the view that each of these four plaintiffs signed whatever their lawyer prepared for them.  Also, if these claims were genuine, it would not be necessary to suggest that pages provided to Felix Lingo were provided by him.  Further, the probative value of the report of Dr Pesh must also be doubted as he regarded Kemma Saka as being female when a photo (A18) was provided to suggest Kemma Saka is male.

67.	The plaintiff bears the onus of proof.  This plaintiff, and the other three plaintiffs, each purported to recall, on oath, that they were involved in a motor vehicle accident on 5 April 2021.  There is no other supporting evidence for a motor vehicle accident of the kind alleged as having occurred on that date.  

68.	While the evidence suggests there was a motor vehicle accident on 5 November 2021, there is insufficient non-hearsay evidence to prove the plaintiff was a passenger in a motor vehicle that was involved in an accident on that date.

69.	 As a result, there must be a verdict for the defendant in this case.  However, it is desirable that the Court proceed to consider all remaining issues so that, if there is an appeal, there are evidence-based findings on those remaining issues of negligence, contributory negligence and damages.  What follows assumes what has not been proved, namely that there was an accident on 5 November 2021 in which the plaintiff was a passenger and was injured. 

70.	It is clear, from the evidence, that there was negligence on the part of the driver in the following respects:

(1)	on his own admission, the vehicle was overloaded with “more than twenty (20) passengers” (A76 at [17]),
(2)	that was in addition to the vehicle being “overloaded with store goods” (A76 at [12],
(4) 	he was driving too fast when the vehicle was travelling uphill,
(3)	he failed to shift to slow and shift to a low gear before going uphill,
(4)	he lost control of the vehicle,
(5)	he failed to apply the brakes,
(6)	he failed to keep the vehicle on the road, and
(7)	he gave priority to receiving money from those passengers instead of the safety of those passengers.

71.	However, the Court is not satisfied that the negligence that resulted in the accident and the injuries alleged by the plaintiff was solely that of the driver.  
72.	While the plaintiff’s lawyer submitted that the defendant failed to lead evidence in support of the allegation of contributory negligence, it did not need to because ample support for that allegation was contained in the evidence provided in support of the plaintiff’s case, notably the affidavit of the driver.
  
73.	There were reasons advanced by the defendant in support of the allegation of contributory negligence, namely (1) the driver not being authorised to carry passengers, (2) the owner not being informed, and (3) illegal behaviour of the driver.  However, those matters do not go to contributory negligence because contributory negligence is determined by the conduct of the passengers rather than the conduct of the driver whose conduct goes to whether he was negligent.

74.	The matters which warrant a finding of contributory negligence are as follows:

(1)	the vehicle was plainly a private truck and not a public motor vehicle, and
(2)	the vehicle was visibly, and thereby obviously, overloaded.

75.	It is clear from the evidence that passengers such as the plaintiff voluntarily assumed a greater risk of an accident by reason of those matters which were within his knowledge when he decided to board the vehicle.

76.	Any assessment of a percentage for contributory negligence is a matter of impression and assessment, having regard to the evidence, and is not something that can be determined with any mathematical precision.  The Court considers a reduction of 30% for contributory negligence is warranted in the circumstances of this case.

Case of Kemma SAKA – quantum

Evidence

77.	The quality of the evidence provided in support of the plaintiff’s case was sadly lacking, seemingly prepared without regard for the rules of evidence.  Had objections been taken, little of that affidavit would have been considered admissible.  For example, the second affidavit of the plaintiff (A79) included (1) what the plaintiff’s lawyer told him, (2) what he was advised by others, (3) opinion evidence in the form of a suggestion that “it would be best if the wife of the owner of the motor vehicle can come, and testify …”, and (4) a submission that “I believe I have enough evidence of the accident …”.

78.	Evidence going to the damages recoverable is confined to the plaintiff’s first affidavit (A1) and the affidavit of Dr Pesh (A20).  

79.	The evidence of both those witnesses is not considered reliable: the plaintiff clearly signed whatever was put in front of him, as indicated by his evidence that he recalled the accident occurred on 5 April 2021, and the report of Dr Pesh suggested the plaintiff was of the feminine gender.

80.	In his first affidavit, at [18], the plaintiff asserted that, in addition to a “Fracture of my left hand” and a “Fracture of my left rib bone”, he suffered “Other bodily injuries”.  However, there was no evidence of what were said to be those other injuries.  At [22], the plaintiff suggested those two injuries restricted his ability to do his “daily village work” but, in [23] he said: “I think, I will recover from my current disabilities in future. Because of my age and the type of injuries I suffered”. 
It may be that there was a typographical error in that paragraph but, if so, the plaintiff should have given oral evidence to correct that error, by attending the hearing.

81.	At [27] the plaintiff lists what he claimed were his pre-accident activities and claimed, at [28], that he does those activities less.  At [29], he claimed that, when he gets other people to carry out those tasks, he pays them between K100 and K150.  However, as noted above, the plaintiff did not provide evidence of how often that occurs.  Significantly, he did not provide any evidence of whether he is left-handed or right-handed.

82.	In contrast to the plaintiff’s evidence, Dr Pesh suggested the plaintiff will not recover from his injuries and estimated: “Her (sic) residual loss is valued at 20% loss of effective use of the chest and 30% loss of use of the left forearm”.

83.	It must be observed that only an expert is permitted to give opinion evidence, and only if that expert has qualifications and/or experience in the relevant field.  Also, it is necessary for there to be not only a proven factual foundation for any opinion but also either reason(s) or a process of reasoning to link the opinion to that factual foundation.

Submissions

84.	Submissions for the plaintiff placed reliance on what was said in a letter dated 7 July 2022 from the plaintiff’s lawyer to the defendant (A41).  The amounts sought in that letter, excluding costs, were (1) general damages of K35,912, (2) economic loss of K22,000, and (3) special damages, ie out-of-pocket expenses of K750.  The total of those amounts is K58,662.

85.	Reference was made to Bagu v Motor Vehicles Insurance Ltd [2023] PGSC 19; N10111 (Bogu) in support of the contention that damages should be assessed for each of the plaintiff’s separate injuries.  Further, that amounts awarded should be adjusted for inflation, said to have been indicated in Moka v Motor Vehicles Insurance Ltd [2004] PGSC 38; SC729 (Moka).

86.	Inexplicably, the defendant’s lawyer made no submissions as to quantum.
Relevant law
87.	Bargu was a first instance decision in which amounts were assessed for an (1) eye injury and (2) head and facial injuries when assessing general damages.  However, that decision is not binding on this Court: it represents more than what the judge did in that case.  There was no reference to any Supreme Court authority for the proposition that a separate assessment for each injury is required. 

88.	Moka was referred to in the plaintiff’s submissions as follows:

The Supreme Court in the case of Andrew Moka vs MVIL SC902 – 2004 held that:-
	
(A)	The 1980’s and 1990’s awards were outdated; and
(B)	Allowed 134% increase to account for the Cost of Inflation – from 2004 onwards.

89.	In fact, Moka said no such thing and that was a decision numbered SC 729, not SC902.  There was reference to awards being outdated in Motor Vehicles Insurance Limited v Kol [2007] PGSC 38; SC 902 (Kol).  In Kol, at [19] it was said:

More recently, in Andrew Moka v. MVIL, the Supreme Court on appeal from a decision of the National Court, increased an award of K23,000 to K35,000. That represents an increased by over 134 percent from an award of K15,000 in the earlier case of Tambi -v- The State, which the trial judge in the Andrew Moka case relied upon to arrive at the assessment of K23,000. Of course, the National Court in that case, took into account, the rise in inflation and the decrease in the purchasing power of the Kina since the award in Tambi’s case.

90.	Since Tambi v The Independent State of Papua New Guinea [1988-89] PNGLR 648 was decided on 30 October 1989, it must be observed that the increase from to K15,000 to K35,000, which involved an increase of 134% occurred over a period of 15 years.  The other reference to 134% in Kol was at [23] which began:
This Court’s decision in the Andrew Moka case makes it clear that, the awards in the 1980s and 1990s are outdated and had increased the awards in personal injuries claims by over 134 percent. 
91.	Neither Kol nor Moka is authority for the use of an allowance of 134% for inflation.  Those decisions do no more than suggest that allowance should be made for inflation when making awards of general damages by reference to prior decisions.  It is noted that the period from 1989 to 2004 is 15 years for that increase.

92.	It is a matter of concern that the Court was unable to rely on either what the defendant’s lawyer said about the decision in Collins or about what the plaintiff’s lawyer said about the decision in Moka.

Consideration

93.	The letter to which the plaintiff’s lawyer referred in submissions as to damages (A41) refers to “colour copies” of a report of Dr Maiti dated 3 March 2022 and a Discharge Summary dated 20 November 2021.  Neither of those documents were included in the evidence upon which the plaintiff relied.  Potential reasons for that are sub-standard preparation or those documents did not assist the plaintiff’s case.

94.	An injury was referred to as the left hand.  However, as the injuries were said to be fractures of the ulna and radius, that injury was to the left forearm.  The letter from the plaintiff’s lawyer (at A43) referred to four decisions but relied on Kunumb v Independent State of Papua New Guinea [2008] PGNC 134; N3480 (Kunumb), said to have included an award of K20,000 in 2008 for a 70% loss of use of an arm.  For the injury to the rib, five decisions were cited but the K18,000 awarded in Costello v Talair [1985] PNGLR 61 (Costello) was used as a starting point.

95.	Curiously, despite the oral submissions contending that separate amounts should be assessed for each injury, based on what was done in Boga, the letter from the plaintiff’s lawyer to the defendant then calculated the K19,000 average of those two amounts then contended that K20,000 should be used.  Allowing for inflation, it was suggested that K35,912 should be awarded.

96.	As to that allowance for inflation, the plaintiff’s evidence did not include any evidence of the rates of inflation in Papua New Guinea.  Instead, after incorrectly referring to Moka, it was lazily suggested that this Court should apply a “134% interest (sic) every ten (10) years to do Justice from 2004 onwards”, despite that percentage relating to a period of 15 years.  For the reasons outlined above, that submission is rejected.

97.	A comparison of the injuries considered in Kunumb and Costello, and the plaintiff’s injuries, suggests his injuries were not as severe as the injuries suffered by the plaintiffs in those cases.  It is also necessary to note there was no evidence that the plaintiff was left-handed.  Further, the Court is not persuaded that this plaintiff has suffered any significant lifelong disability, especially in relation to his rib injury, noting that the plaintiff’s own evidence is that he will recover (A5 at [23]).  An award of K20,000 is considered appropriate for general damages in this case.

98.	Turning to the claim for economic loss, it is necessary to note that each of the four plaintiffs gave the same evidence, word-for-word, on those matters.  

99.	Credibility is lacking when four plaintiffs, with differing injuries each allege (1) the same pre-accident activities, (2) the same impacts, and (3) payment of the same amounts in the same circumstances.

100.	After referring to three cases, the 2008 case of Kunumb was said to suggest K11,000.  Allowing for inflation, a range of K15,000 to K25,000 was suggested and K22,000 was sought.

101.	The decisions in Maka Kewe v Thomas Kudjip [1986] PNGLR 279 (Kewe) and Kerr v Motor Vehicles Insurance (P.N.G.) Trust [1979] PNGLR 251 (Kerr) were cited in support of a submission that, once there is evidence of a reduction in earning capacity, a reasonable amount should be allowed, even if there is a lack of supporting evidence.

102.	The evidence of the plaintiff was that he pays K100 to K150 for work he used to do himself before the accident, but there was no indication of how often that occurs.  If that occurred every month then, using the average amount of K125, that suggests as amount of K1,500 per year.  The plaintiff’s evidence was that he would recover from the effect of his injuries and, having regard to the available evidence, a period of five years from the date of the accident is considered reasonable.  That suggest an amount of K7,500.  Adding an allowance for the work which the plaintiff does but with lesser ability during a period of five years due to his injuries, the Court considers an award of K10,000 for economic loss to be reasonable in this case.

103.	While the credibility of that evidence must be doubted when each of four plaintiffs alleged (1) the same pre-accident activities, (2) the same impacts, and (3) payment of the same amounts in the same circumstances, the decisions, Kewe and Kerr suggest that a reasonable amount should be allowed despite those matters.

104.	A claim of K750 was made for special damages.  The supporting documents were said to be the three documents at A50.  

105.	First, there was a receipt for K350 dated 26 May 2022 for a “medical report fee”.  That was plainly the cost of the report from Dr Pesh, but that is part of the plaintiff’s costs of these proceedings and not part of his claim for damages.  Likewise, a 4 May 2022 receipt for K20 for an “X-ray fee” is more than six months after the accident and that X-ray appears to have been taken for the purposes of preparing the report of Dr Pesh as there is no evidence that the plaintiff was undergoing medical treatment for his injuries at that time.   Thirdly, a 6 July 2022 receipt for “photocopies and stationery” appears to relate to the preparation of these proceedings because it bears the reference N9695 which is the same reference provided on the schedule that was provided to Dr Pesh.  That reference appears to be a reference used by the plaintiff’s lawyers for his case.

106.	As a result, the three items, which add to K720 and not the K750 claimed, may be recoverable as part of the costs of these proceedings, but they are not recoverable as damages.  Accordingly, no amount is allowed for special damages.

107.	Thus, in the event the plaintiff had proved his case on liability, the total amount which the Court considers would have been awarded in the absence of contributory negligence is K30,000 (ie K20,000 for general damages plus K10,000 for economic loss).  

108.	Reducing that amount by 30% for contributory negligence gives K21,000 as the amount which the Court considers the plaintiff to be entitled to recover in these proceedings if the issue of liability had been proved.

Case of Pingin NEWMAN – liability

Evidence

109.	Apart from the affidavits of this plaintiff that were sworn on 20 February 2023 (B1) and 21 March 2025 (B71), the other evidence for this plaintiff and the defendant on the issue of liability is the same.

110.	This plaintiff also recalled, on oath, that the accident occurred on 5 April 2021 (B3 at [10]).  His health book provides hearsay evidence for him being injured in a motor vehicle accident on 5 November 2021 (B9).

Submissions

111.	In view of the commonality of the evidence, it is not surprising that no separate submissions were made in relation to the issue of liability in these proceedings. 

Consideration

112.	For the reasons set out in relation to the claim of Kemma Saka, the Court finds in favour of the defendant on the issue of liability in relation to this plaintiff.  However, as with the case of Kemma Saka, it is considered that there would have been a 30% reduction for contributory negligence if liability was determined in favour of this plaintiff.

Case of Pingin NEWMAN – quantum

Evidence

113.	As the second affidavit of this plaintiff is a word-processed copy of the second affidavit of Kemma Saka, it suffers from the same deficiencies.  
114.	That, plus the evidence that he recalled the accident as having occurred on 5 April 2021, warrants treating his evidence with caution since it appears that he also signed whatever his lawyer prepared for him to sign.

115.	Again, evidence going to the question of what amount should be awarded for damages are confined to the first affidavit of this plaintiff (B1) and the affidavit of Dr Pesh (B14).  

116.	It is convenient to here again note that any opinion evidence of Dr Pesh must have a factual foundation and a reason or reasons to link that factual basis to the opinion he expressed.

117.	The evidence of this plaintiff was that the injuries he sustained in the motor vehicle accident were fractures of the two bones in his lower right leg, namely the tibia and fibula (B4 at [18]).  He claimed, to have restricted use of his right leg in his “daily village work and activities” to support himself and his dependants (B5 at [23]).  The activities he listed (B5 at [28]) were word-for-word the same as those listed by Kemma Saka.  His evidence was again the same as that of Kemma Saka when he suggested he pays others between K100 and K150 when they help him (B5 at [28])  This plaintiff also said: “I think, I will recover from my current disabilities in future, because of my age and, the type of injuries I suffered.” (B5 at [24])

118.	In a medical report dated 4 May 2022 (B17) included the following words:

Examination to the affected limb showed slight deformity at the middle third tibia/fibula of the right leg.  Mild swelling with tenderness elicited.  Ranges of movement at the lower and upper joints were normal.  There is muscle wasting with limited rotationary function.

He is otherwise recovered fully but still has residual losses.

He is therefore awarded as final settlement 40% loss of effective use of his right leg.

Submissions

119.	No separate oral submissions were made by either lawyer in relation to the issue of quantum for this plaintiff.  

120.	As a result, it is only necessary to refer to the written submissions contained in the letter dated 5 July 2022 from the plaintiff’s lawyer to the defendant (B39).  The amounts sought in that letter, excluding costs, were (1) general damages of K96,962, (2) economic loss of K22,000, and (3) special damages of K750, a total of K119,712.

121.	It is noted that the 5 July 2022 letter (B39) referred to a report from Dr Jerry Hoga dated 4 March 2022 and a Discharge Summary dated 18 December 2021, neither of which were included in the plaintiff’s evidence.  It is also noted that an X-ray was obtained (B49) but was not provided to the Court.

122.	Submissions relating to the need to increase awards of general damages over time, to allow for inflation, were repeated.  They have been considered above.  In support of the claimed amount of K60,000 for general damages, the plaintiff’s written submissions relied on two reported decisions.

123.	First, reference was made to Moka, in which K35,000 was awarded in 2004 for a 40% loss of efficient use of the left leg and 10% for loss of efficient use of the head.  Secondly, it was noted that K60,000 was awarded in 2007 in Kol for between 80% and 100% loss of use of a leg.   

124.	In relation to economic loss, the submissions for this plaintiff repeated the references to Kerr and Kewe and again contended for an award of K22,000 for economic loss.  As with the previous claim of Kemma Saka, a claim of K750 was made for special damages.

Consideration

125.	While the letter which set out details of the amount claimed suggested “Our client was awarded a 40% disability in the effective use of his right leg” (B39 at B40), that adopts the error made by Dr Pesh whose report does not award anything: it only provides his assessment.  

126.	That assessment cannot be accepted for the following reasons.  First, it was only suggested there was a slight deformity in the bones in plaintiff’s lower right leg and, although an X-ray was obtained, it was not included in the plaintiff’s evidence.  Secondly, mild swelling and tenderness would not be expected to be permanent, and it was not suggested that was the case.  Thirdly, and importantly, the range of movements were said to be normal.  Fourthly, there is nothing to suggest muscle wasting had functional, as opposed to cosmetic, consequences.  Fifthly, this plaintiff was said to have fully recover other than limited rotationary function.  Sixthly, any suggestion of permanent loss of effective use of the right leg is contradicted by the plaintiff’s own evidence that he thought he would recover from what were said to have been his current disabilities when he swore an affidavit on 20 July 2023, more than a year after the 4 May 2022 report of Dr Pesh.

127.	Being of the view that the opinion of Dr Pesh does not appear to have adequate factual foundation, doing the best it can on the available evidence, the Court considers a 20% loss of the efficient use of the lower right leg and that such loss cannot be considered permanent.

128.	On the basis that an inflation-adjusted amount for general damages for 100% loss of the efficient use of a leg would now be K120,000, it is considered that an amount of K24,000 would be appropriate if this plaintiff’s disability would be permanently at that level.  However, being of the view, that the prevailing level of disability will be less, an amount of K20,000 is considered appropriate for general damages in this case.

129.	Since the claim for economic loss is the same in this case as was made in the case of Kemma Saka, the same amount of K10,000 is allowed.  For the reasons indicated in relation to that claim, the claim for K750 for special damages is rejected.

130.	Thus, in the event the plaintiff had proved his case on liability, the total amount which the Court considers would have been awarded in the absence of contributory negligence is K30,000 (ie K20,000 for general damages plus K10,000 for economic loss).  

131.	Reducing that amount by 30% for contributory negligence gives K21,000 as the amount which the Court considers the plaintiff to be entitled to recover in these proceedings if the issue of liability had been proved.

Case of Joe PITUI – liability

Evidence

132.	Apart from the affidavits of this plaintiff that were sworn on 20 July 2023 (C26) and 31 March 2025 (C80), the other evidence for this plaintiff and the defendant on the issue of liability is the same.

133.	This plaintiff also recalled, on oath, that the accident occurred on 5 April 2021 (C28 at [10]).  His health book provides hearsay evidence for him being injured in a motor vehicle accident on 5 November 2021 (C35).

Submissions

134.	No separate submissions were made as to liability in these proceedings. 

Consideration

135.	For the reasons set out in relation to the claim of Kemma Saka, the Court finds in favour of the defendant on the issue of liability in relation to this plaintiff.  

136.	However, as with the case of Kemma Saka, it is considered that there would have been a 30% reduction for contributory negligence if liability was determined in favour of this plaintiff.

Case of Joe PITUI – quantum

Evidence

137.	Again, since the second affidavit of this plaintiff is a word-processed copy of the second affidavit of Kemma Saka, it suffers from the same deficiencies.  That, plus the evidence that he recalled the accident as having occurred on 5 April 2021, warrants treating his evidence with caution since it appears that he also signed whatever his lawyer prepared for him to sign.  

138.	Again, evidence going to the question of what amount should be awarded for damages are confined to the first affidavit of this plaintiff (C26) and the affidavit of Dr Pesh (C55).

139.	The evidence of this plaintiff was that the injuries he sustained in the motor vehicle accident were (1) a fractured skull, (2) a fracture of the upper left leg, and (3) abrasions and contusions. Like, the earlier two plaintiffs, he claimed to have restricted use of his head and leg in his “daily village work and activities” to support himself and his dependants (C30 at [23]).  The activities he listed (C31 at [31]) were word-for-word the same as those listed by Kemma Saka and Pingin Newman.  His evidence was again the same as that of Kemma Saka when he suggested he pays others between K100 and K150 when they help him (C31 at [33]).  This plaintiff also said: “I think, I will recover from my current disabilities in future, because of my age and, the type of injuries I suffered.” (C30 at [24])

140.	The body of the medical report dated 25 March 2022 (C58) reads as follows (emphasis added):

The bearer of this report was allegedly seen at the hospital on 5/11/2021 with injuries alleged to have [been] suffered in a motor vehicle accident.  This medical report is written based on the clinical information provided.

He suffered frontal scalp laceration with skull vault fracture and left thigh injury with cortical fracture at the middle third.

He was treated well with medications.  Wounds [were] taken care of and was hospitalised for 72 hours before advised home on medications.

He is being reviewed at the clinics and recovery has been steady but overwhelming.

A full review will be in 3 months time.

His interim loss is valued at 40%.

141.	The evidence of this plaintiff included copies of what were said to be two X-rays of the plaintiff (C45-46), but without other evidence they lack probative force.

Submissions

142.	No separate oral submissions were made by either lawyer in relation to the issue of quantum for this plaintiff.  As a result, it is only necessary to refer to the written submissions contained in the letter dated 23 September 2022 from the plaintiff’s lawyer to the defendant (C11).  The amounts sought in that letter, excluding costs, were (1) general damages of K100,554, (2) economic loss of K25,000, and (3) special damages of K250, a total of K125,804.

143.	While the Court accepts that an allowance should be made for inflation when assessing general damages by reference to earlier decisions, the defective submissions as to how the amounts awarded for general damages should be increased, which were repeated in relation to this plaintiff, are rejected.

144.	After referring to five reported decisions involving head injuries, the decision in Colbert v The Independent State of Papua New Guinea [1988-89] PNGLR 590 (Colbert) was used to suggest that K100,554 should be awarded for general damages in this case.  Reference was also made to four reported decisions involving thigh injuries, but the amount sought was based solely on Colbert. 

145.	In relation to economic loss, the submissions for this plaintiff referred to the decisions in Kerr and Kol.  It was said that “Our Kina is very poor in International Money Markets …”.  An award of K25,000 was sought for economic loss.

146.	A claim of K250 was made for special damages, said to have been spent on “photocopies and stationery”.

Consideration

147.	The report of Dr Pesh in March 2022 (C58) was only an interim report for two reasons.  First, it was there should be a review in three months’ time and there is no evidence of any such review.  Secondly, the assessment of the plaintiff’s loss was only made on an interim basis.

148.	There is insufficient evidence to warrant a finding of ongoing disability when the plaintiff’s evidence was that he would recover and Dr Pesh used the word “overwhelming” when describing the plaintiff’s recovery.  In those circumstances, the assessment of “His interim loss is valued at 40%” does not prove support for that percentage on anything but a short-term basis.  There is nothing in either the evidence of the plaintiff or the report of Dr Pesh justifies any finding of an ongoing impact in relation to the left thigh injury.

149.	Colbert was a case, decided on 28 October 1987, in which an amount of K70,000 was awarded for general damages.  The evidence in that case was that the plaintiff had suffered a loss of frontal lobe brain functions.  He was said to be intellectually impaired to an extent that he would be unable to be employed.  

150.	A report that was part of the evidence in that case listed the following consequences:

(1)	Gross memory disturbance …  at times he gets lost and cannot find his way home.  Invariably overflows the bath if not supervised.
(2)	Incapable of carrying out sequential activity.
(3)	His wife has to be with him all the time to assist him with the most simple tasks such as getting dressed.
(4)	Has attacks of rage for no apparent reason.
(5)	His intellect is impaired.
(6)	He has periodic both faecal and urinary incontinence.
(7)	There has been a marked personality change.  Formerly a very active and creative man has now been reduced to a state of nothing – a result of a frontal lobe brain injury.
(8)	He has fallen over on a number of occasions.
(9)	Recurring nightmares.
(10)	He suffers from fatigue and dizziness.

151.	The written submissions for the plaintiff took the K70,000 awarded in Colbert, purported increase that by 134% for 10 years, but in fact only increased that amount by 34%, then repeated that exercise to obtain a figure of K125,692.  On the basis that the plaintiff having a 40% interim loss, that amount was only discounted by 20% to obtain the amount claimed of K100,554.  Even if that flawed calculation of K125,692 could be accepted, the suggestion that the evidence provided in support of this case warranted only a 20% discount for contingencies compared to the injuries of the plaintiff in Colbert is clearly unacceptable.

152.	Cases to which the plaintiff’s written submissions referred were between 20 and 40 years old and provide little assistance for a current-day assessment.  There is no evidence this plaintiff has suffered any brain damage.  His situation was, by reference to the evidence of both the plaintiff and Dr Pesh, improving.  There is little evidence of ongoing impacts.  The case of this plaintiff is so far removed from that of the plaintiff in Colbert, that it cannot be compared to that case.

153.	The evidence in this case is unsatisfactory because the plaintiff was relying on interim evidence and there is no evidence that the “full review” suggested by Dr Pesh was ever undertaken.  However, a Court must decide this case based on the evidence it has, not the evidence it wished it had.  

154.	Doing the best it can on the available evidence, the Court considers an award of K20,000 to be appropriate for general damages in this case.

155.	Photos provided in support of the plaintiff’s case (C43) prove little.  Indeed, they give the appearance of a person who is trying to look impacted.  Since the evidence in support of the claim for economic loss is the same in this case as was made in the case of Kemma Saka, the same amount of K10,000 is allowed.  For the reasons indicated in relation to that claim, the claim for K250 for special damages is rejected.

156.	Thus, in the event the plaintiff had proved his case on liability, the total amount which the Court considers would have been awarded in the absence of contributory negligence is K30,000 (ie K20,000 for general damages plus K10,000 for economic loss).  

157.	Reducing that amount by 30% for contributory negligence gives K21,000 as the amount which the Court considers the plaintiff to be entitled to recover in these proceedings if the issue of liability had been proved.

Case of Dia MARTIPALU – liability

Evidence

158.	Apart from the affidavits of this plaintiff that were sworn on 21 July 2023 D23) and 31 March 2025 (D65), the other evidence for this plaintiff and the defendant on the issue of liability is the same.

159.	This plaintiff also recalled, on oath, that the accident occurred on 5 April 2021 (D25 at [10]).  His health book provides hearsay evidence for him being injured in a motor vehicle accident on 5 November 2021 (D31).

Submissions

160.	In view of the commonality of the evidence, it is not surprising that no separate submissions were made in relation to the issue of liability in these proceedings. 

Consideration

161.	For the reasons set out in relation to the claim of Kemma Saka, the Court finds in favour of the defendant on the issue of liability in relation to this plaintiff.  However, as with the case of Kemma Saka, it is considered that there would have been a 30% reduction for contributory negligence if liability was determined in favour of this plaintiff.

Case of Dia MARTIPALU – quantum

Evidence

162.	Again, since the second affidavit of this plaintiff is a word-processed copy of the second affidavit of Kemma Saka, it suffers from the same deficiencies.  That, plus the evidence that he recalled the accident as having occurred on 5 April 2021, warrants treating his evidence with caution since it appears that he also signed whatever his lawyer prepared for him to sign.  

163.	Again, evidence going to the question of what amount should be awarded for damages are confined to the first affidavit of this plaintiff (D23) and the affidavit of Dr Pesh (D41).

164.	The evidence of this plaintiff was that the injuries he sustained in the motor vehicle accident were said to be (1) facial injuries, (2) a dislocated left hip, and (3) abrasions and contusions (D26).  Mirroring the evidence of the earlier three plaintiffs, this plaintiff claimed to have restricted use of his head and leg in his “daily village work and activities” to support himself and his dependants (D27 at [23]).  The activities he listed (D27 at [28]) were word-for-word the same as those listed by Kemma Saka, Pingin Newman and Joe Pitui.  His evidence was again the same as that of Kemma Saka when he suggested he pays others between K100 and K150 when they help him (D27 at [30]).  This plaintiff also said: “I think, I will recover from my current disabilities in future, because of my age and, the type of injuries I suffered.” (D27 at [24])

165.	The body of the medical report dated 4 May 2022 (D44) suggested the injuries suffered by this plaintiff were a “head injury with left frontal scalp laceration exposing skull vault but not fracturing” and “a left hip dislocation”, said to have affirmed by an X-ray but no such X-ray was provided in the plaintiff’s evidence.  

166.	The findings of Dr Pesh were expressed as follows:

a.	A healed left frontal scar within minimal hair loss measuring 6cm.
b.	Evidence of left hip arthritis as seen by the limp and pain on movement ranges.
c.	No other residual losses.

167.	Physiotherapy and the intermittent use of pain killers were recommended.  Again, Dr Pesh presumed that he was making an award rather than an assessment. He suggested this plaintiff had sustained a “40% loss of effective use of the left hip” and a “15% loss in scarring and hair loss at the frontal scalp”.

168.	As with the earlier three plaintiff, this plaintiff did not give any evidence of the impact his injuries had on him, other than evidence that matched, word-for-word, the evidence other three plaintiffs.

Submissions

169.	No separate oral submissions were made by either lawyer in relation to the issue of quantum for this plaintiff.  As a result, it is only necessary to refer to the written submissions contained in the letter dated 20 July 2022 from the plaintiff’s lawyer to the defendant (D11).  The amounts sought in that letter, excluding costs, were (1) general damages of K25,760, and (2) special damages of K250, a total of K26,010, the amount shown at D14 containing an arithmetic error.

170.	As with the earlier three cases, while the Court accepts that an allowance should be made for inflation when assessing general damages by reference to earlier decisions, the defective submissions as to how the amounts awarded for general damages should be increased, which were repeated in relation to this plaintiff, are rejected.

171.	After referring to six reported decisions that were said to have involved similar injuries, it was suggested that the ‘measuring rod’ was an unreported decision in 2021 which the Court has been unable to consider since no copy was provided to the Court by the plaintiff’s lawyer.  It was said that K25,760 was awarded for general damages in that case where it was said there were “minor injuries with no disabilities”.  It was contended that amount should be awarded in this case.

172.	There was no claim for economic loss in this case.  A claim of K250 was made for special damages, said to have been spent on “photocopies and stationery”.

Consideration

173.	The report of Dr Pesh dated 5 March 2022 (D44) suggested a 15% loss due to scarring and hair loss at the front of the scalp, but it is difficult to see how such a percentage could be attributable to such a cosmetic injury.  There was said to be evidence of hip arthritis which was suggested to warrant an assessment of a 40% loss of effective use of the left hip.

174.	While it is not doubted that some arthritis in the left hip, with a limp and pain on movement ranges, is an injury that warrants an award of general damages, it must be taken into consideration that the plaintiff expressed the view that he would recover.  Recovery from arthritis following an injury in questionable and that is a factor in favour of this plaintiff, but it is difficult to see how that injury warrants an assessment of a 40% loss of the effective use of the left hip.  An award of K20,000 is considered appropriate in this instance, having regard to the available evidence.

175.	The failure to claim for economic loss, despite the same evidence being provided for this plaintiff, remains unexplained.  As this plaintiff alleged (1) the same pre-accident activities, (2) the same impacts, and (3) payment of the same amounts in the same circumstances, but did not pursue any claim for economic loss, that raises the question of whether the same claims of the other three plaintiffs should have been pursued.  However, in view of the Court’s decision on liability, it is not necessary to further consider that issue.

176.	For the reasons indicated in relation to the other three matters, the claim for K250 for special damages is rejected.

177.	Thus, in the event the plaintiff had proved his case on liability, the total amount which the Court considers would have been awarded in the absence of contributory negligence is K20,000 for general damages.  

178.	Reducing that amount by 30% for contributory negligence gives K14,000 as the amount which the Court considers the plaintiff to be entitled to recover in these proceedings if the issue of liability had been proved.

Costs

179.	The usual position in relation to civil proceedings is that costs follow the event, meaning that costs depend on the outcome of the proceedings, with the unsuccessful party being ordered to pay the costs of the successful party.  As the plaintiffs have been unsuccessful in relation to each of these four proceedings, an order should be made for each of plaintiffs to pay the costs of the defendant.

Orders in WS 233 of 2023

180.	For the reasons set out above, the orders of the Court will be as follows:
1	Verdict for the defendant.
2	The Plaintiff is to pay the Defendant’s costs of these proceedings as taxed if not agreed.
3	Time is abridged so that these orders may be entered forthwith.

Orders in WS 381 of 2023

181.	For the reasons set out above, the orders of the Court will be as follows:
1	Verdict for the defendant.
2	The Plaintiff is to pay the Defendant’s costs of these proceedings as taxed if not agreed.
3	Time is abridged so that these orders may be entered forthwith.

Orders in WS 386 of 2023

182.	For the reasons set out above, the orders of the Court will be as follows:
1	Verdict for the defendant.
2	The Plaintiff is to pay the Defendant’s costs of these proceedings as taxed if not agreed.
3	Time is abridged so that these orders may be entered forthwith.

Orders in WS 387 of 2023

183.	For the reasons set out above, the orders of the Court will be as follows:
1	Verdict for the defendant.
2	The Plaintiff is to pay the Defendant’s costs of these proceedings as taxed if not agreed.
3	Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.
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Kopunye Lawyers		: Lawyers for the Plaintiffs
Strategic Legal Services	: Lawyers for the Defendant