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Kapia v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 28; N1024 (20 December 1991)

Unreported National Court Decisions

N1024

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 893 OF 1990
MOL KAPIA
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
19 November 1991
20 December 1991

NEGLIGENCE - Personal Injuries - Motor vehicle accident - liability.

DAMAGES - disability to leg - village woman - general damages - global amount to include economic loss - K26,000.00

Cases Cited:

Kama v The State 1990 N848

Kiak v Tura & M.V.I.T. [1986] PNGLR 265

Tambi v The State [1988-89] PNGLR 648

Piam v The State [1988-89] PNGLR 651

MOIA v The State [1988] PNGLR 299

Counsel:

D. L. O’Connor for the Plaintiff

A. Kandakasi for the Defendant

20 December 1991

WOODS J: Thentiff is claiming damagdamages for personal injuries she received when she was involved in a Motor vehicle accident which occurred on the 4th January 1990 on the Highlands Highway near Lae. Shtes that she was riding on g on a motor vehicle driven by her son going to Lae when the vehicle went down and she was thrown out and lost consciousness and received the injuries to her leg.

Kunga Kapi gives evidence that he was driving the vehicle down to Lae and there was a big Fuso truck ahead of him and the truck suddenly turned right without giving any signal and to avoid the trailer of the truck he had to steer off the road into a drain and bumped across the drain and then to the fence.

There was no police accident report tendered.

Counsel for the Defendant submits initially that the Plaintiff has not given any evidence against the second vehicle and therefore it is unidentified. However I note from the Defendant’s Defence that the Defendant admits Paragraph 3 of the statement of claim, namely that both vehicles were insured by the Defendant.

However, whilst the driver of the vehicle says that the large truck in front turned suddenly without any warning I am not sure that suggests I can find negligence in that other driver. So I am left with Kunga Kapi’s driving. I am entitled to infer that if you have to swerve off a road to miss a vehicle in front you may have been travelling too fast or driving without due care and attention to other vehicles on the road. I so find as they are obvious reasons for Kunga’s driving off the road and bouncing across a drain. I therefore find liability in the driving of Kunga.

ON DAMAGES

The Plaintiff is an elderly woman aged about 50 years. She sustained a comminuted fracture of the left tibia and fibula and a surgical bone pin was inserted to stabilise the fracture. She spent nearly 7 weeks in hospital. She has continued to suffer pains and limitation in movement. It is estimated that she will be suffering 65% permanent disability in the effective use of her left ankle joint and it is quite apparent that she has and is suffering quite severe pains and difficulty. For a woman of her age that means severe restriction in movement and the need for the support of crutches. This means she is unable to do the work required of a woman in the village subsistence economy which even at her age is quite substantial. However it is very difficult to put a figure on the loss of being unable to fully participate in the work required to help support herself and the community in the subsistence economy so I will consider a global award for economic loss to be part of the General Damages.

The case KAMA v The State 1990 N898 involved an elderly woman who received some head injuries and a fractured leg. There was malunion of the fracture. An amount of K15,000 for general damages and K3,000 for economic loss was considered. In the case PIAM v The State [1988-89] PNGLR 651 a 50 year old man suffered 50% loss of efficient use of the knee and figures of K8,000 for General Damages and K5,000 for future economic loss at subsistence level was considered. In the case MOIA v The State [1988] PNGLR 299 a 36 year old man received fractures in both legs and there was malunion and General Damages was assessed at K20,000. In the case TAMBI v The State. [1988-89] PNGLR 648 a 32 year old driver incurred 35% loss of the efficient use of the leg and General Damages was assessed at K15,000. In KIAK v TURA & M.V.I.T. [1986] PNGLR 265 there was a compound fracture of Tibia and Fibula and General Damages of K29,000 was awarded.

I feel that after considering the above cases that a figure of K26,000 be assessed for General Damages and this is a global amount to cover economic loss as well in the absence of any exact figures to work from. I allow interest at 8% on K10,000 of the General Damages from the date of the issue of the Writ to today.

In Summary therefore:

I order judgment of K27,012.60

Lawyer for thentiff: O’Connor & Hasu

Lawyer for the Defendant: Young & Williams