[1997] PNGLR 343

PAPUA NEW GUINEA

[national court of justice]

LEVAKIA KOLI

v

MOTOR VEHICLES INSURANCE (PNG) TRUST

mount hagen: lenalia aj
10, 11 March, 16 April 1997

Negligence - Motor vehicle accident - Personal injuries - Fracture to left arm - Injuries - Internal fixation by - Intra Medullary rod - Private motor vehicle – Vehicle not designed for safe carriage of passengers.

Negligence – Motor vehicle accident – Contributory negligence.

Damages - Motor vehicle accident - Villager and subsistence farmer - Injuries - fractured left arm – 50 per cent loss of effective use and 5 percent permanent loss.

Facts

The plaintiff was travelling in the back cabin of a private motor vehicle that was not designed for the safe carriage of passengers. Due to negligence on the part of the driver where the driver was negotiating a sharp bend at high speed, the accident occurred and the plaintiff suffered fracture of her left arm resulting in 50 per cent loss of effective use and 5 per cent permanent loss.

Held

1.	On the balance of probabilities, the driver and defendant insurer are liable for plaintiff’s injuries and in spite of the fact that, there was no evidence of the first medical treatment received, it was sufficiently evidenced by the subsequent medical report that, the plaintiff’s injuries were the result of the accident occurred on 10th of December 1993.

2.	The vehicle was not designed for the safe carriage of passengers as it had no proper fixed seats for the vehicle was in fact a private motor vehicle not designed or authorised to carry passengers like the plaintiff. A degree of responsibility must be placed on people who accept to sit at the back of open back vehicles without proper fixed seating facilities.

3.	There was contributory negligence on the part of the plaintiff for riding at the back of the vehicle not designed and fixed with proper seating facilities. Contributory negligence attached at 20 per cent.

4.	General damage assessed at K10,000.00 less K2,000.00 for contributory negligence; past economic loss at K875.00; future economic loss K3,900.00 plus interest at 8 per cent on the general damage.

Papua New Guinea cases cited

Anna Endeken v The State [1988-89] PNGLR 286
Kulno Kanzie v Motor Vehicle Insurance (PNG) Trust N1030
Nali Matabe v The Independent State of Papua New Guinea & Another
Pep v Bakri Yamba and the Independent State of Papua New Guinea [1987] PNGLR 485
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Rot Moip v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 485.
Tumu v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 638

Counsel

P Dowa, for the plaintiff.
M Pokia, for the defendant.

11 April, 1997

Lenalia aj. This was a trial for which the plaintiff is claiming damages for injuries she received on her left arm when the vehicle she was travelling on, a Toyota utility registration No AGK 463 owned by Isai Mose and driven by Ross Komba on 10th of December 1993 went off the road into a drain. This accident occurred near Surunki Village between Laiagam and Wabag. 

The plaintiff’s case consisted of five witness who gave oral evidence including the plaintiff herself and an affidavit sworn to by the doctor who due to work commitment could not turn up to give oral evidence. The plaintiff pleads in her statement of claim that because of the negligent driving of the driver; by driving at a speed which she claims to be excessive, failure to keep a proper look out, driving with due care and attention and failure on the part of the driver to control the vehicle, resulted in or caused the accident on which she sustained a fracture on her left arm. She further claims that from this injury she continues to suffer pain and inconvenience. Her claim is for general damages, economic loss and the interests accruing to the amount she claims.

The plaintiff herself a house-wife said she and another five passengers were riding at the back of the vehicle owned by Isai Mose driven by driver Ross Komba with another two in the cabin when the vehicle got involved in an accident. It is unfortunate she did not describe the manner of driving. She only said, she was at the back and was not really aware of what was going on but was only surprised when the vehicle went off the road into a drain. According to her, all passengers were thrown out while she was thrown against the body of the vehicle still inside the tray thereby causing her a fracture on her left arm. She said she returned to Surunki Health Centre where she was told by a medical officer to immediately report to Sopas Hospital. There was no evidence of a letter of referral from Surunki to Sopas. She claims that at Sopas Hospital, she was hospitalised for two months two weeks during which time her hand was covered with a cast. The period of hospitalization is contradicted by the evidence of Dr. Stephen Lutz, who says in paragraph one of his report on the plaintiff that according to the plaintiff’s bed number at Sopas Hospital, she was admitted on 10th of December 1993 and discharged on the 17th December the same year.

It is not clear from her evidence whether the cast applied at the Sopas Hospital was removed or not prior to seeking treatment at the Immanuel Lutheran District Hospital at Mambisanda on 22nd of February 1994 some two months and five days later, complaining of pain and inability to use the left arm. The doctor’s remarks on his report dated 21 November 1994 were that the fractured bones were healing with severe angulation. I shall return to the doctor’s evidence latter. Part of the plaintiff’s evidence is that her husband is a Pastor in the Lutheran Church who has to travel from place to place and she has to do all gardening by herself but she cannot now be able to carry out her normal gardening duties she once used to do.

George Gugube was the duty officer at the Surunki Police Station when the matter of the accident was reported to him. He attended the scene and also compiled an accident report on his findings. George’s observation on the scene was that the front of the vehicle was in the drain while the back was still up on the side of the road. He briefly checked the vehicle and found that the steering was too loose. After taking notes, he asked the driver to accompany him back to the Surunki Police Station. This witness said he went to Wabag to bring a mechanic to check the condition of the vehicle but despite reporting to the O.I.C. of the Department of Works in Wabag, no mechanic accompanied him back to the scene. Seeing there was no mechanic, the vehicle owner was mindful about his vehicle being left unattended to in fear of vehicle theft; the vehicle was taken back to a nearby workshop. 

John Pyatti was a passenger riding in the cabin with vehicle owner Isai Mose and driver Ross Komba. He is a high school teacher and was then teaching at the Surunki High School at the time of the accident. His recollection of the accident is that, when he boarded the vehicle at Surunki, the driver was travelling at high speed. They approached a corner at Kekaplam village, the driver tried to negotiate the bend but it was too late, he skidded and ran off the road with the front of the vehicle landing directly in the drain. His evidence is also that, one of the passengers, a female, broke her arm and was taken to Tobens Health Centre then later referred to Sopas Hospital. None of the other passengers received any injuries except the female he referred to earlier.

Isai Mose is the owner of the vehicle, which was involved in this accident. His evidence is that on the date of this accident, he travelled with his driver and between Surunki and Wabag when his vehicle got involved in an accident. He said as they approached the bend and just prior to reaching it, the vehicle went off the road and hit the drain at a village called Kekaplam. There was loose gravel on the road and the only person who received injuries was the plaintiff who complained of a broken arm. When asked in chief when did his vehicle went through the last service, he said it was two to three weeks prior to the accident.

Ross Komba was the driver. Ross admitted that on the date of this accident when he approached the corner where the accident occurred, he was travelling on high speed. He confirmed there were two passengers with him in the cabin and another five at the back. They were travelling between Laiagam and Wabag when the accident occurred. He said he was travelling down the straight patch of road down the hill when he got into loose gravel, tried to get hold on the steering tightly but seeing it was loose gravel, he ran off the road into a drain. He confirmed that after he landed in the drain, the steering was found to be too loose. He then reported the matter to the police at Surunki after which a policeman came with him to attend the scene.

The medical evidence in support of the plaintiff’s claim is contained in annexure "A" to Dr. Stephen Lutz’s affidavit sworn on 11th of July 1996. Dr. Lutz confirmed the plaintiff’s evidence that, Levakia Koli was admitted to the Immanuel Lutheran District Hospital at Mambisanda on 22nd of February 1994. She then complained of pain and inability to use the left arm and the bones affected were healing with severe angulation. On the same date, the plaintiff underwent an open operation on the left radius and there was placed an internal fixation by means of an "intramedullary rod". The report does not say how long was she hospitalized at the Mambisanda Hospital. The plaintiff returned to Dr. Lutz on 21st of November 1994 seeking a medical report. The doctor’s findings then were that the wound was healing well. The alignment of the bones was good and she had a full range of flexion and extension of both the left elbow and left wrist. Despite that, rotation of the forearm was now limited. She underwent an x-ray generally showing good healing but there was a line of "radioluency" extending part of the way through the fractured region suggesting the possibility of delayed or non-union. The doctor concluded that the plaintiff would now have 15-20% loss of function of the left arm and an overall permanent disability of five percent.

The defendant did not call any witnesses. There is no doubt the accident occurred as the result of the careless driving of the driver concerned.

There is evidence that the said vehicle was properly registered and insured with the defendant pursuant to s 54 of the Motor Vehicles (Third Party Insurance) Act Ch. No. 295. The defence counsel raised a number of issues in his final submission. The first is that there was lack of description by the plaintiff as to how she received her injuries. Secondly that there is lack of contemporaneous medical report as evidence to corroborate the view that the injury resulted from the accident of 10th of December 1993. Two other factors in relation to conflict of evidence on how the injury arose and whether the vehicle was fitted with proper seats for passengers to sit on.

The certificate issued in terms of s 49 (1) (b) of the Motor Vehicles (Third Party Insurance) Act confirms that the vehicle in question was registered as a private vehicle under the name of Mr Isai Mose. There was no evidence touching the question of whether the vehicle was fitted with proper seats or not. According to the owner, the vehicle was mostly used for transporting vegetable from Wabag to a company and which destination is not disclosed by the evidence. Mr Pokia relies on a number of authorities to support his view that there ought to be a contemporaneous medical evidence to show that the injuries received directly resulted from the accident that occurred on 10th of December 1993: Rot Moip v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 485. I distinguish that case from the instant claim. The plaintiff in that case did not produce any medical report in relation to treatment he did not receive nor was there any police accident report. His Honour said there that a claim of such nature must be supported by contemporaneous medical evidence together with a possible police accident report. 

In relation to confusions referred to in the defence submission Woods J discussed in Kulno Kanzie v Motor vehicles Insurance (PNG) Trust N1030, that there was total confusion as to whether the vehicle in that accident actually overturned or merely skidded to the side of the road.

While it is submitted to me that, there was no evidence of referral from the Health Centre at Surunki to the Sopas Adventist Hospital and no evidence produced to support the view that the plaintiff had sought medical treatment at Sopas Hospital, I am equally convinced by the evidence of the plaintiff that she must have at some stage been admitted to the Sopas Hospital. Dr. Lutz refereed to her bed number being 55808 at the Sopas hospital. Apart from this, senior constable George Gugube and John Pyatti both confirmed that the plaintiff’s arm was broken. Dr. Lutz refers to the treatment received by the plaintiff at Sopas as a fracture to the left radius and ulna treated by closed "reduction and casting". There is sufficient evidence from other witnesses that the plaintiff was on the vehicle and she injured her left arm against the body of the vehicle thereby causing her a fractured left arm. From this evidence, I am satisfied on the balance of probabilities that the plaintiff’s injuries were the result of the accident that occurred on 10th of December 1993.

However, I am not satisfied that the driver of the vehicle and therefore the Trust is wholly liable for any loss caused by the accident. The vehicle involved was not designed for the safe carriage of passengers as it had no proper fixed seats for people, nor was it registered as a public motor vehicle as the registration certificate shows that the vehicle was registered as a private vehicle. Despite this, the vehicle was properly insured with the defendant. A degree of responsibility must be placed on people who accept to sit at the back of open back vehicles without proper fixed seating facilities. I find that the plaintiff was also negligent. I also find that the manner of driving was negligent for the purpose of this claim. He was obviously driving down a hill at a high speed well knowing that it was a loose gravel road with a curve ahead of him.

I find therefore that there was negligence in the manner of driving of the said vehicle. I also find that there was contributory negligence on the part of the plaintiff for riding at the back of the vehicle not designed and fixed with proper seating facilities. I assess contributory negligence at 20%.

Damages

The plaintiff suffered a fracture on the left arm as the result of the accident. The cast applied to her hand at Sopas Hospital had to be removed on 22nd of February 1984 and on the same date was operated upon to effectuate an internal fixation by means of "an intrameduallary rod". It is not disclosed by the evidence how long she was hospitalised at the Mambisanda Hospital. The doctor has said in evidence that the plaintiff is only able to do light work with her left arm but has to limit her work considerably due to pain and loss of range of motion. On the result of the X-ray conducted on 21st November 1994, the doctor suggested that if there were "non union" of the left ulna, the plaintiff would require bone grafting to achieve "solid union and pain free function of the ulna". She as a result of the accident suffered 15 - 20 percent loss of function of the left arm. The doctor put the overall permanent disability at 5 percent.

In view of the injuries received, I am of the opinion that the instant claim is a little less serious than the case of Nali Matabe v The Independent State of Papua New Guinea and The Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 309. In that case Bredmeyer J awarded a total of K14,180.00 for both damages and economic loss. That case involved a 15 percent permanent loss of the efficient use of the left arm above the elbow and which seriously restricted his occupation as a subsistence farmer. The doctor in the instant case said at the last paragraph of his report: "It is my opinion that Lepakai (wrongly spelt) has a 15 – 20 per cent loss of function of the left arm with an overall permanent disability of about 5 per cent.

The plaintiff is aged about 40 years now and mostly involved in the village subsistence economy. She has suffered a fracture on her left arm. She required hospitalisation for some weeks. She has to live alone without the assistance of her husband while her husband is carrying out pastoral care to various congregations in his District. If the plaintiff were right handed, the use of the left arm would be limited to lifting and labouring jobs. If she is however left-handed, it will affect her capacity to work considerably. There is no evidence to support the latter version. Certainly with the 5 percent permanent disability will cause a degree of discomfort. This case is also less serious than Anna Endeken v The State [1988-89] PNGLR 286 where the plaintiff claimed for the left and dominant arm, which was totally and permanently useless. An award of K36,000.00 was allowed. In Tumu v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 638, the plaintiff sued for personal injuries for a fractured wrist and was awarded K8,484.00 less a 50 percent contributory negligence. The instant case is also less serious than the case of Pep v Bakri Yamba and The Independent State of Papua New Guinea [1987] PNGLR 485 in which the plaintiff was awarded K15,000.00 for general damages alone for bone graft and a 50 percent efficient use of an arm. The plaintiff lost 15 - 20 percent loss of function and an overall 5 percent disability of the use of her left arm. I would assess damages at K10,000.

Economic Loss

I have mentioned that the plaintiff shall have partial use of her injured arm. She will still use it to perform light duties. She is basically a villager and gardener. Both counsels have suggested a figure of K5.00 of earning capacity per week. The plaintiff is now 40 years. I accept a figure of 15 years for her life expectancy. I assess her past economic loss at K875.00. I assess a figure of K3,900.00 for the future economic loss.

By the principle laid down in Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, I allow an interest of 8% on the amount awarded for general damages from the date of issuance of the writ of summons.

Summary

General Damages	K10,000.00

Less 20% contributory negligence	K2,000.00

	K8,000.00

Plus interest of 8%	K1,707.84

Past economic loss	K875.00

Future economic loss	K3,900.00

Total	K14,482.84

Lawyer for plaintiff: Paulus M. Dowa Lawyers.
Lawyer for defendant: Young & William Lawyers.