Unreported National Court Decisions
N1116
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO 318 OF 1990
BEPIWAN AMBON - PLAINTIFF
V
MOTOR VEHICLES INSURANCE (PNG) TRUST - DEFENDANT
Wabag
Brown J
7 - 8 September 1992
10 November 1992
NEGLIGENCE - Motor Vehicle accident - Vehicle rolled over - res ipsa loquitur - No real explanation for accident.
EVIDENCE - Motor Vehicle Registration and Insurance - Absence of certificates - sufficiency of proof.
DAMAGES - Personal Injuries - Plaintiff 20 years old female school student (18 at the time of accident) reliant on subsistence farming parents - Loss of arm in accident - Formal amputation at mid humerus - Severe shock - Life threatening injury - Minor lacerations to feet, knee and thigh.
Counsel
Mr M Thoke for the Plaintiff
Mr A Kandakasi for the Defendant
10 November 1992
BROWN J:  This young lady was injured in a motor vehicle accident which occurred on the 26 August 1988 on the road to Mount Hagen.  She was a passenger in the vehicle travelling from Wabag.  She sues the Trust as the authorised Third Party Insurer of the vehicle, a Nissan Patrol pursuant to the provisions of s. 54 of the Motor Vehicles (Third Party) Insurance Act:
“Subject to ss. (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of:
(a)      a motor vehicle insured under this Act; or
(b)      an uninsured motor vehicle in a public street; or
(c)      a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established.”
The facts are that she and a girlfriend left Wabag after school on the day at about 6pm in this vehicle driven by one Steven Kuru, to spend the weekend in Mount Hagen.  At the Togoba turn-off, a short distance out of Mount Hagen town, the vehicle left the bitumen, rolled over and seriously injured the plaintiff.  The plaintiff alleges that the accident was due to the negligence of the driver who drove too quickly, was careless and was affected by alcohol.
I am satisfied the driver was affected by alcohol from the evidence of the girl and Constable Saliemunge of the Traffic Branch, Mount Hagen Police (who attended the scene and prepared a traffic accident report).  From the distance shown in the sketch the vehicle would appear to have been speeding to roll so far before coming to rest, I need not attempt to reconstruct the events leading up to and during the accident to find speed or carelessness.  There was no other vehicle involved.  In the circumstances the maxim res ipsa locatur applies and negligence is assumed.
The question raised by the defence however, remains.  Was the girl guilty of contributory negligence?
She said in her evidence that she sat in the front of the vehicle in the middle seat next to the driver.  On the way to Mount Hagen he was drinking beer and speeding.  She said the accident happened at about 9:20pm when the vehicle turned over because the driver was driving too fast.  Her left arm was crushed and she was taken to the Togoba Health Center where her condition was stabilised before she was taken to Mount Hagen Hospital.  There she was subsequently operated upon to amputate what remained of her arm.  She said she slept after Wabag until Paipona when her companion woke her and told her that the driver was drinking.  She said she did nothing about that, and fell asleep again until the time of the accident.  She had not seen the driver drinking up to the time she fell asleep after Wapenamanda.  Paipona to Togoba is about 30 minutes driving.  The driving time between Wabag and Mount Hagen was between 2 1/2 to 3 hours and there were no unusual conditions described on this occasion to warrant a variation.  Yet the journey seemed to have been of unusual duration even without stops.  The vehicle was some 30 minutes from Mount Hagen when the accident happened.
I am not satisfied that the plaintiff was frank in the witness box.  I find it extraordinary that a 17 year old school girl should get into a vehicle driven by an unknown male (even if she was a paying passenger) go to sleep soon after, and remain asleep even when told that the driver was drinking.  She admitted being aware he was driving too quickly.  She in fact said he drank a carton of beer but I give this little credence for I find her evidence on the manner and circumstances of the drive unsatisfactory.
I do rely on thie independent evidence of the policemen.  The policeman says the accident happened at 11pm and that the driver and other passengers were consuming liquor.  No questions were directed to the constable to elicit how he came to say this, but Mr Kandakasi for the Trust says the journey was in fact a joy-ride for the girls.  He points to the fact that the girls were the only passengers while they told the policeman at the time that they wished to be dropped off at home down the highway from Wabag school, and thus the driver was effectively holding them in the vehicle contrary to their wishes.  The plaintiff in Court says she wanted to go to Mount Hagen for the weekend.  He says the accident report clearly shows the accident to have happened long after the time alleged by the girl and if I accept the independent evidence of the policemen, the girl has failed to explain the inordinate delay in reaching Togoba.  The delay was of their own making, he says, whilst they were drinking on route.  He says there was complicity with the driver, she was aware he was intoxicated and on her own admission that he was driving fast, she should be held partly responsible for her injuries.
I must say with that I agree.  If she had joined the driver as Mr Kandakasi says for a frolic of their own, then the very accident happened which could have been, anticipated, where alcohol to the extent shown by the policeman, is shown to have affected the driver.  If she has passed her home and was taken to Mount Hagen contrary to her wishes, surely she would have pressed that aspect in this Court.  But she chose to say and rely on her assertion that she slept for the greater part of the drive.  I do not accept that assertion.  I find that she was aware of the driver's drinking, and his manner of driving too fast.  By her evidence, I am not satisfied she was precluded from either demonstrating with the driver, or being put down with her girlfriend before this accident.  I consequently find the plaintiff did materially contribute to her injuries by her own negligence.  I consider a fair assessment is 30%.  Her damages will accordingly be reduced by that percentage.  Now before going to that aspect I wish to deal with the question of the identity of the registered owner, and whether or not the vehicle was an insured vehicle for the purposes of s 54(1) of the Motor Vehicles (Third Party) Insurance Act.
I said, when allowing the policeman's evidence on these points, that I would give reasons, for the material point, whether the vehicle was registered and insured must surely go to a document.
There are registered details in the Motor Traffic Registry or there are not.  The Trust has a register of insured vehicles yet no document has been tendered.  The policeman says that he obtained the whole particulars of ownership, registration details and the 3rd Party Policy number and expiry date from the Traffic Registry at Mount Hagen.  Those details were set out in his Motor Traffic Report, tendered, but he forgot to complete the ‘expiry date’ space.
In Papua New Guinea this evidence of current registration is specifically provided for by legislative provision.  Motor Traffic Act Chapter 243 Section 42 provides:
“(1)    Particulars of the registration of motor vehicles and of the issue of certificates, permits under s 11 and licences shall be recorded at the prescribed office or offices.
(2)      An extract from or copy of any entry contained in a record kept in accordance with ss (1), certified by a prescribed officer, shall, in all courts and on all occasions, be:
(a)      received as evidence; and
(b)      deemed to be sufficient proof of all particulars contained in the entry, without requiring the production of the books, permit, licence, requisition, notice or other document on which the entry was founded. to be engaged solely.”
A certificate or extract under ss. (2) is accordingly the document required here.
I presume the practice has been to write to the relevant authorities seeking details of registration and insurance and the reply under hand of the appropriate authority is evidence.  The Motor Vehicle (Third Party Insurance) Act Ch 295 provides by s. 49:
“(1)    In order to comply with the requirements of this Act, a third party insurance cover shall:
(a)      in the area of the Central Traffic Registry - be issued by the Trust to the owner of a motor vehicle on the owner lodging with the Superintendent:
(i)       an application for registration or re-registration, as the case may be; and
(ii)      the appropriate amount of insurance premium in respect of the motor vehicle; and
(b)      in any other area - be issued by the Trust to the owner of a motor vehicle on the owner obtaining from an agent of the Trust a certificate in a form approved by the Trust stating that the appropriate amount of insurance premium in respect of the motor vehicle has been paid.
(2)      A third party insurance cover issued under Subsection (1):
(a)      where it is issued in relation to a particular motor vehicle, insures the owner of the motor vehicle and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally against all liability incurred by the owner and the other person jointly or by either of them severally in respect of the death of or bodily injury to a person caused by, or arising out of the use of, the motor vehicle, to an amount not exceeding:
(i)       K100,000.00 in respect of the death of or bodily injury to any one person in any one case; and
(ii)      K500,000.00 in the case of any one accident or series of accidents arising out of the one event; and
(b)      becomes effective on the date of registration or re-registration, as the case may be, of the motor vehicle in respect of which it is issued; and
(c)      continues in force:
(i)       where the registration is renewed within 15 days after the expiry of the preceding period of registration - until the date of renewal; and
(ii)      in any other case - until 15 days after the date on which the registration expires.”
Now the vehicle involved in this accident is a Highlands vehicle, consequently (b) of subpara (1) of s. 49 may be relevant here.  In those circumstances the fact of registration raises a rebuttable presumption under s. 50 of the Motor Vehicles (Third Party Insurance) Act that the registered vehicle has a current third party insurance cover.  Section 50 provides:
“The Superintendent shall not register a motor vehicle unless:
(a)      in the case of a motor vehicle situated in the area of the central Traffic Registry - he has received the amount of third-party insurance premium payable in respect of the motor vehicle; and
(b)      in any other case - he has received a certificate issued under s. 49 (1) (b) in respect of the motor vehicle.”
That does not preclude in my opinion other evidence on the point, when no certificate or extract under ss. (2) of s. 42 of the Motor Traffic Act has been tendered.  The Constable has given oral evidence of search without producing the record for the Court.  While not the best evidence, I am prepared to allow the Constable's statements in as proof of the facts.  I say this having regard to circumstances appertaining to production of records of this nature at Wabag and the general practice in the past which seems to have equated the assertion with the fact.  While that latter is no reason, it goes someway to explain why no better or primary evidence is available here.  With that, I do not agree with my brother Woods J where he says in Martin Kilte v MVIT (unreported N1085 of June 1992) that tender of the Motor Traffic Accident report is proof of registration and insurance if shown, without anything further.  Such an assertion seems to me to be contrary to the requirements of s. 42 but in this case I am prepared to allow secondary evidence of the details of the record kept, under ss. (1) of particulars of registration.  I accept the policeman’s evidence of search as sufficient for the presumptions the plaintiff wants me to make.  Here, the policeman gave viva voce evidence to show where he derived his information.  It is his evidence, not just the tender of the traffic accident report, on which I place credence.
I am satisfied that the vehicle REG: AGO-158 was registered in the name of Jolsom Kutato, PO Box 484, Mount Hagen and had a current policy of insurance No 0062034 at the time of this accident.  The Trust, having notice of these particulars had opportunity to refute the facts.
I come then to the claim for general damages and special damages pleaded to include future economic loss.  This was particularised at K10 per week for 40 years using 5% actuarial tables to give a present value of K12,400.  At the trial Mr Thoke claimed economic loss of 50t per day of K5 per week for the years leading up to trial.  The girl still remains at school, no evidence was led to explain why that claim was made except for a passing reference to gardening.  That claim and the one for future economic loss must fail for no evidence has been led to support such a claim.  In these circumstances the doctor who was called opinioned that her chances of marrying may be reduced.  But how that can be translated, if at all, to an economic loss was unexplained.  It is clear that, if I accept her chances of remarriage have suffered then that fact may be reflected in general damages, as a disability, but in Enga is not the lot of a wife but drudgery, would that loss of opportunity give rise to a claim?.  In any event no real evidence is before me of her claim to support from her parents clan or whoever.  She obviously has customary support.  Woods J. reiterated the clear law on the point in the recent case of Repas Waima v MVIT (Woods J unreported decision - Mount Hagen - August 1992) where he said special damages must be strictly proved by evidence.  That also applies to customary claims.  That part of her claim fails.
General damages for pain and suffering, loss of enjoyment of life through this disability and loss of opportunity remain to be assessed.
She tendered in evidence a report by Dr. Jacob Ollapallil, her treating surgeon of Mount Hagen General Hospital.  I quote from his report to show the extent of her injuries.
“This lady was involved in a motor vehicle accident and sustained a crush injury to the left forearm and lost the left elbow.  She was admitted in a very critical condition on 26.08.88.  She was transferred (sic) with blood and started on antibiotics.  The ragged amputation stump was repeatedly debrided to make it clean.  On 11th October the stump was skin grafted.  The wounds healed well and she was discharged on the 19.10.88.  I have examined her on 05.10.88 and the amputation stump is healed well and there is 90% loss of efficient function of the left upper limb.  She needs to be fitted with a prosthesis.”
She had then a shocking accident where her arm was crushed.  Whether or not she lost consciousness I do not know.  She was never asked.  I accept however, that the pain leading up to her first operation to formally amputate the useless remaining flesh and bone would have been excruciating.  Then she underwent a second operation some weeks later to skin graft the stump.  The debridment of her skin at the injury site would have been continually excruciating, scrubbing the raw skin and exposed nerves.  She cannot garden properly, she cannot expect to type two handed, she is awkward clothing herself and carrying out all those personal things which two handed people take for granted.  Just as importantly she is always conscious of her loss and it causes her continuing embarrassment.  She hides her stump in clothing, as she did in Court.
She is an engaging young woman with a quick personality who must suffer this stigma for the remainder of her life.  It is a mental as well as a physical burden.  I am not so concerned by her lesser lacerations to her toes, which have completely healed nor to her thigh, a superficial injury.
In the circumstances I consider K35,000.00 to be an appropriate award for general damages encompassing those heads I have touched on.  I do not propose to canvass the various awards given for similar injuries reported and unreported for the older awards are of little value as a guide with the passage of time and the peculiar circumstances of each claimant deserves to be considered afresh.  The particular circumstances of a traditional villager in Papua New Guinea are so disparate from province to province that it is dangerous to generalise.  I also allow K150.00 spent whilst at hospital for her support.  The costs of the various medical reports are medico/legal costs to be included in the plaintiff lawyers bill of costs.
There has been compensation of some 31 pigs paid by the driver’s line to the girl’s line.  The fact of compensation must be taken into account when assessing the damages so that, in accordance with the principle in Aundak Kupil & Kauke Kensi v The State (1983) PNGLR 350 I propose to deduct the value of such customary compensation from my award.  It is in the public interest that I do so, otherwise the girl shall be doubly compensation for the same injury.  I do not, however, know just who has the benefit of the pigs, and what obligations flow in favour of the girl if she does not have them.  I propose then to discount the value of the traditional compensation to be deducted for the onus of showing the whole of the benefits have flowed to the girl rests with the defendant.  I also assess the value of the pigs in 1988 terms at on average K150 each doing the best I can without guidelines apart from the range of values put by Mr Kandakasi for the pigs from K50 to K300 each - 31 pigs @ K150 each totals K4,650.00.  I consequently reduce the damages of K35,150 by K3,100 (discounted) for the traditional compensation, and then deduct the percentage for her contributory negligence.
That gives me K32,050 times 70% for her share ie. K22,435 as her damages which will attract interest at the rate of 8% from the date of institution of proceedings to judgment.  There shall be a verdict and judgment on the claim in the sum of K32,050 less the amount of the defendant’s judgment of K9,615 on the cross claim for contribution.
The plaintiff shall have her costs to be assessed or taxed reduced by 30%.  I make no order as to costs on the cross-claim.
Lawyer for the Plaintiff:  Michael C Thoke Lawyers
Lawyer for the Defendant:  Young & Williams Lawyers