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Nui v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 8; N1044 (4 March 1992)

Unreported National Court Decisions

N1044

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 998 OF 1990
KEWA NUI
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
4-5 February 1992
4 March 1992

NEGLIGENCE - Personal Injuries - Motor vehicle accident - vehicle drove over Plaintiff lying on grass - liability - contributory negligence.

DAMAGES - fractured ribs - an old man - minor disability

Counsel:

S Norum, for the Plaintiff

A Kandakasi, for the Defendant

4 March 1992

WOODS J: The Plaintiff is claiminggdamages for injuries he received when a vehicle a Daihatsu registered No AHA 785 ran over him on the 26th of April 1990. The Plaintiff says he had gone to Kagain the morning with others to sell vegetables at the informnformal market area next to the road infront of Kagamuga Wholesale. And whilst the other members of his family were selling the goods he went behind the selling area and lay down on the grass and fell asleep. And while asleep the alleged vehicle reversed over him and injured him. The Plaintiff says that where he was lying was not a road area thereby suggesting the vehicle was in the wrong in even been in the area.

Witnesses for the Plaintiff did not see the car reversing over the Plaintiff they were only alerted after the vehicle had actually ran over the Plaintiff and he had called out and everyone ran across to the scene to help the Plaintiff. The Police Accident Report was tendered into evidence. It identifies and confirms the vehicle and its registration and insurance details. The description of the incident in the report would be based on what the police officer was told. However it is not in exact accord with the evidence actually given in court. The Police report suggests that the Plaintiff may have been at fault because he came and slept behind the parked vehicle when the driver had just parked. However no witnesses have come to Court to confirm that.

The driver of the vehicle Leo Jerry Loyale gave evidence of driving along a track at the grassed area beside the fence to near the front of the Kagamuga Wholesalers. He said then he stopped the car and walked over to talk to the Manageress for a few moments. He then returned to his vehicle and reversed back along the track he had come along but after only a couple of feet he felt a mound or obstruction and stopped the vehicle and opened the door and could hear someone calling out. Then some policemen and other people came from the market area and told him that he had run over an old man. He was then taken to the police station. The driver said there was no body on the grass near where he drove in and that he was simply reversing back along the way he had come in.

A view of the scene was taken but unfortunately it had been changed since the time of the accident and now there is no longer any access to vehicles the way the subject vehicle came in 1990. However it is understood that at the time there was no proper road there only been an informal little used track at the rear of the grassed area behind the unofficial market. There is no suggestion or evidence from the Police report to suggest that the driver was breaking the law in being where he was and the Police did not lay any charges against the driver.

So the Court is faced with two versions of how the incident happened. The Plaintiff says he was sleeping on the grass when the vehicle came and backed over him. The driver says that when he drove in there was no one adjacent to his vehicle or adjacent to the track and so when he reversed to go out about 5 minutes later he had not expected anyone to place themselves immediately behind his vehicle. So was the Plaintiff on the grassed area all the time or had he only come there when the car came in. There are no witnesses to support that the Plaintiff was there for some time lying sleeping on the grass. On the other hand there are no other witnesses to support the driver’s understanding that the Plaintiff must have suddenly placed himself just behind the vehicle.

The court in Papua New Guinea in this type of case involving motor vehicles is often faced with claimants and a society who believe in a no fault liability which is akin to their traditional expectations of compensation for any form of injury or damage. However the law the courts must apply is a law based on the need to prove negligence before there is any liability.

On the facts and conflicts in this case I must find that the driver was in a place not normally used by motor vehicles and a place where people sometimes sit or even lie down on the grass. Therefore there was an extra responsibility or duty of care on the driver of any vehicle who drove onto that area. So I must find some negligence in the driver. However I am still puzzled as to how the Plaintiff got to be where he could not to be seen by the driver. It could have only been his carelessness. So I therefore find a carelessness and therefore a negligence in both the Plaintiff and the Driver. I apportion liability at 50% each.

DAMAGES:

The Plaintiff is a man aged in his late 40s. He states he received fractures of his ribs on the right side of his chest. He says he spent a week in hospital which suggest that it may not have been a very serious injury. The evidence satisfies me that the vehicle in striking the Plaintiff may have done the injuries claimed which led to the week in hospital. He now complains of pain in his chest and limitations of movement in his right shoulder which affects his ability to fully perform in his traditional work at clearing gardens carrying firewood and other manual work. A medical report from a doctor who examined him 16 months after the accident estimates a 15% disability from the injuries that he understands the Plaintiff received in the accident.

There have been in a number of cases involving crush injuries or very serious back and leg injuries which have seriously limited people in their ability to perform their traditional work. However these cases have involved far more serious injuries than the Plaintiff here. The rib injuries which only required one week in hospital suggest only very minor injuries which must have healed well although leaving some permanent inconvenience as noted by the doctor. On the medical evidence I am unable to find more than a minor problem as rib injuries are not the same as back injuries so all the cases which refer to back and arm injuries are not really any guide. The claim here is only for general damages which I will assess at K6,000. I would allow interest on half of that from the date of the issue of the writ todate being K339.94 This amount is reduced by 50% for contributory negligence.

I order judgment for K3,169.97

Lawyer for the Plaintiff: Joseph Mek Teine

Lawyer for the Defendant: Young & Williams