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Yomo v State [1990] PGNC 146; [1990] PNGLR 554; N812 (12 February 1990)

N812

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

PYAYAKAN YOMO

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J

30-31 October 1989
21 November 1989
12 February 1990

NEGLIGENCE - Road accident cases - Contributory negligence - Passenger accepting lift - Vehicle taken under low - Passenger remaining in vehicle - Tow rope snaps - Passenger injured - Passenger guilty of contributory negligence - Liability apportioned at 50 per cent.

DAMAGES - Personal injuries - Particular awards of general damages - Spinal injuries - Paralysis of lower limbs - Mobile on crutches - Probable urinary tract infections and complications - Total incapacity for work - Male village subsistence farmer aged 35 years (40 years at trial) - Award of K35,000 general damages and K10,000 economic loss.

The plaintiff, a male aged 35 years (40 years at trial), married with three children and a village subsistence gardener claimed damages for personal injuries arising out of a motor vehicle accident. The plaintiff accepted a lift in a vehicle and remained in the vehicle when it was shortly afterwards taken under tow. When the tow rope snapped while the vehicle was climbing a hill, the plaintiff was knocked unconscious, and suffered spinal cord injuries with paralysis in both legs and loss of bladder and bowel control. The plaintiff was hospitalised for two and a half months and left hospital using crutches. The plaintiff suffers a 70 per cent loss of the use of the spine and lower limbs with continuing probability of urinary tract infections; his working capacity and social life are destroyed.

Held:

(1) Because a vehicle under tow is not properly serviceable and is under limited control a passenger who rides in such a vehicle must be aware of the obvious dangers in so doing and is guilty of contributory negligence.

(2) In the circumstances, the plaintiffs contributory negligence should be apportioned at 50 per cent.

(3) Damages for pain and suffering and loss of amenities should be assessed at K35,000.

(4) Damages for economic loss should be assessed at a global sum of K10,000.
Nali Matabe v PNG and Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 309, followed.

Cases Cited

The following cases are cited in the judgment:

Jeremiah O’Hello v Kayel Shipping Co Pty Ltd 11980] PNGLR 361.
Nali Matabe v PNG and Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 309.
Papua New Guinea, Government of v McCleary [1976] PNGLR 321.
Rundle v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 618.

Statement of claim

This was an action in which the plaintiff sought to recover damages for personal injuries suffered in a motor vehicle accident.

Counsel:

P C Kopunye, for the plaintiff.
M L Tilto, for the first defendant.
V L Maladina, for the second defendant.
Cur adv vult

12 February 1990

WOODS J.: This is a claim by Pyayakan Yomo for damages resulting from injuries he received in a motor vehicle accident alleged to have occurred on 6 August 1984 on the Laiagam-Wabag Road.

The alleged facts are that on that day the plaintiff was on the road between Laiagam and Wabag waiting for a PMV when a Toyota Stout picked him up. Further on, the Toyota Stout broke down and was subsequently towed by a Government Health Department vehicle driven by a friend of the Toyota Stout driver. Whilst being towed the vehicles were ascending a hill beside a river and on the way up the hill the tow rope broke and the Stout vehicle rolled backwards out of control and fell into the river. The plaintiff states he was knocked unconscious and has received permanent injuries rendering him partially disabled.

A number of problems have been raised by the evidence in the case such that I have to decide a number of facts in relation to the accident.

First, the claim is against the State as the owner of the Government Health Department vehicle which was the towing vehicle and also against the Motor Vehicles Insurance (PNG) Trust by virtue of the fact that the Toyota Stout in which the plaintiff was riding was unregistered and uninsured. The claim against the Trust is by virtue of s 54 of the Motor Vehicles (Third Party Insurance) Act (Ch No 295).

At the time of the accident it was reported to the police in Wabag apparently by the people in the Health Department vehicle who left the scene immediately the accident happened without checking as to what happened to the people in the Stout. The police apparently attended the scene later that day although by then there was only a vehicle in the river. The police compiled a police accident report apparently from what they could find out from some of the people involved. There was no mention of the plaintiff in the report and the police themselves confirm that they were not told about the plaintiff at the time. However one of the police involved in the compiling of the report states that some months later when approached by the plaintiff he added the plaintiffs name to the report although he did this without advising the senior officer involved in the compilation of the report.

A further complication is that the date of the accident in the accident report was altered at some later time but there is no explanation as to why. This has however meant that there was a lot of time spent in the hearing of the case on evidence as to how and why documents were altered and of course I must decide whether the evidence shows that the plaintiff was injured in that particular accident on 6 August 1984.

Thus the whole ambit of liability is raised in this case, both whether there is any liability in anybody and if so against which vehicle and whom.

So what do the witnesses say?

The plaintiff gives his story as in the alleged facts above. The owner of the Toyota Stout, Sandakali, supports that story although he did not really know what happened to the plaintiff. But he does refer to the fear of what the plaintiffs relatives might do to whoever caused the accident.

Peiar Yalang, a passenger in the Government Health Department vehicle, says there were two men in the Toyota Stout and thereby supports the plaintiffs story. He also refers to the fact that his vehicle left the scene staight away as they did not want to be involved or to be seen to be involved in case anyone died.

The above therefore suggests that the plaintiffs name may have been deliberately left out of any reports because of fears of payback if he died.

There is no evidence from the driver of the State vehicle or any other eyewitnesses.

The police evidence was of attending the scene later that day and not being told of the plaintiffs presence at the accident. Constable Kalo says he added the plaintiffs name after the plaintiff came and told him some months later. He accepted the plaintiffs story and referred to hearing stories around Wabag about the accident.

The hospital records do support the plaintiffs story of incurring the injuries the day of the accident. Dr Nemba’s evidence appears to support the evidence of the date of the accident from the hospital records although he cannot explain the apparently altered date on his report.

It is suggested that there has been collusion to bring the plaintiff unlawfully into this accident. However, I am unable on the balance of the evidence to agree with any unlawful collusion. The hospital records and the eyewitnesses to the accident who came to court all support the plaintiffs story. I can find no discrepancies in Sandakali’s and Yalang’s evidence to suggest a made up story. And there is an explanation as to how the police may not have included the plaintiffs name in the report — fear of payback against the driver if a passenger died as a result of the accident.

I am therefore satisfied that the plaintiff was injured in the accident on 6 August 1984 which involved the two vehicles referred to in the writ of summons.

Now, who is liable, the driver of the towing vehicle or the driver of the Toyota Stout the plaintiff was riding in, and is there any contributory negligence in the plaintiff?

It would appear that a vehicle being towed in this manner is not a trailer as defined in the Motor Traffic Act (Ch No 243) and is not therefore covered by the subsection forbidding passengers in trailers.

To find contributory negligence through riding in an unregistered and uninsured vehicle there must be some evidence of knowledge by the plaintiff that the vehicle was unregistered and uninsured. The plaintiff was merely picked up by the driver of the Toyota Stout and did not really know anything about the driver or the vehicle. However, can there be contributory negligence in riding as a passenger in a vehicle being towed? A vehicle under tow is akin to a trailer and by being towed is ipso facto not properly serviceable and thus under limited control.

By reason of it being not properly serviceable and under limited control I am satisfied that there is some obvious danger in riding as a passenger in such a vehicle and therefore any person who so rides in such a vehicle is guilty of contributory negligence.

The evidence on the actual accident talks about a broken tow rope. There is conflicting evidence as to the quality of the tow rope, one witness says it was new, another says that it was old. I find no negligence attached to this aspect.

It is submitted that the fault lay with the driver of the State vehicle in that whilst driving up a hill he jerked the vehicle by inexpert gear changing and this jerk broke the rope.

This may be so but the evidence was clear that the vehicles were going very slowly and were almost stationary because of an oncoming vehicle passing them on a narrow gravel road. In such circumstances the normal consequences of a broken tow rope would be that the vehicle being towed would come to a stop. There is no evidence that the State vehicle so towed the Toyota Stout that it got out of control as in the case of Rundle v The Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 618. In the Rundle case it was clear on the evidence that it was the manner of driving of the towing vehicle that caused the accident. This is not the case on the facts before me. At the time that the rope broke the vehicle then came under the control of Sandakali. He failed to stop the vehicle but instead allowed it to run backwards. I cannot see how the driver of the State vehicle can in any way be held liable for Sandakali’s negligence in failing to stop his vehicle as soon as the rope broke.

I therefore find the driver of the vehicle in which the plaintiff was riding negligent and liable in part for the injuries to the plaintiff, as I have already found the plaintiff guilty of contributory negligence. As there was clear negligence in the driver of the Toyota Stout, I apportion the negligence as to 50 per cent to each.

ON DAMAGES

Following the accident the plaintiff was taken to hospital where it was apparent he had suffered spinal cord injuries with paralysis in both legs and loss of bladder and bowel control. X-rays showed no fractures or dislocation.

Two and a half months later he was discharged from hospital having regained bladder control and being able to move around on crutches. He had some physiotherapy in Sopas Hospital and a year later in Port Moresby, although he still bad to use crutches.

Further medical assessment shows continual weakness in his left lower limb which will be a permanent disability, weak bladder and bowel control which will result in persistent urinary tract infection and constipation, and impotence.

The doctor points to the bladder problem as being in the long term the most dangerous condition as it will mean persistent urinary tract infection which could lead to complications which could in the village situation lead to an earlier death than otherwise.

To sum up therefore, the plaintiff is suffering from some permanent disability in the use of the spine and lower limbs, assessed by the doctor at 70 per cent, which affects his normal life, his social life and means he will never be able to earn a living. Further, there is a great possibility that he will not live a normal life span.

At the time of the accident the plaintiff was aged about 35 years, was married with three children and was a village subsistence gardener growing coffee and vegetables. He is now unable to have any more children and cannot do the work that the man is expected to do in preparing and digging new gardens and looking after the coffee. Of course I am aware of the fact that his wife would do much of the day-to-day vegetable gardening but one must realise that through his impotence his whole relationship with his wife must be affected and he has now become a burden on his wife and family.

The plaintiff is not a complete paraplegic so the cases involving paraplegics do not apply. The closest parallels would be cases like Jeremiah O’Hello v Kayel Shipping Co Pty Ltd [1980] PNGLR 361 and The Government of Papua New Guinea v McCleary [1976] PNGLR 321.

Because the plaintiff is not in the modern wage earning economy but rather in a village subsistence economy there is no evidence to support actual economic loss both past and future. However, this does not mean he is or will be without any economic loss. In the circumstances, I will adopt the principle applied in Nali Matabe v PNG and Motor Vehicles Insurance (PNG) Trust [1988] PNGLR 309 and award a global amount for economic loss.

The plaintiff is severely handicapped and an amount of K35,000 is, I feel, appropriate for pain and suffering and loss of amenities to a person with such injuries and with such limitations. I allow a further amount of K10,000 for economic loss.

The accident happened on 6 August 1984 and it is now five years later that he is being awarded compensation. He has been out of his funds for that period so he is entitled to some interest. I apportion K15,000 of the general damages and K4,000 of the economic loss to the period to the date of judgment. Interest will be charged at 8 per cent on those amounts from the date of the issue of the writ to the date of judgment.

After adding all these figures up they should be halved for the contributory negligence of the plaintiff.

General damages K35,000
Economic loss 10,000
Interest on K15,000 from 18 May 1982 2,087
Interest on K4,000 from 18 May 1988 556
K47,643
Less 50% contributory negligence K23,821.50
I order judgment for the plaintiff against the Motor Vehicles Insurance (PNG) Trust for K23,821.50.

Judgement for plaintiff for K23,821.50

_______________

Lawyers for the plaintiff. Kopunye Lawyers.
Lawyer for the first defendant: State Solicitor.
Lawyers for the second defendant: Young & Williams.