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Onguglo v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 2; N1195 (14 February 1994)

Unreported National Court Decisions

N1195

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
JOE ONGUGLO
v
MOTOR VEHICLES INSURANCE (PNG) TRUST>

Mount Hagen

Woods J
13-14 December 1993
14 February 1994

NEGLIGENCE - personal injuries - motor vehicle accident - liability - negligent driving or mechanical defect - riding on back of utility.

DAMAGES - disability to wrist - delay in getting treatment.

Cases Cited:

The following cases are cited in this judgement:

Henderson v Jenkins & Son [1969] 3 AER 736

Kulange v MVIT [1990] Unreported N824

Tumu v MVIT [1988-89] PNGLR 638

Wally v MVIT [1992] Unreported N1029

Counsel:

DL O’Connor for the Plaintiff

A Kandakasi for the Defendant

14 February 1994

WOODS J: This is a claim for damages for personal injuries received by the Plaintiff when a vehicle he was riding in on 12 December 1986 ran off the Okuk Highway near Kundiawa and overturned throwing him out and injuring his arm and hand. The vehicle was a Toyota Landcruiser utility registered number ABZ 317 owned by a Jim Yerr and which was duly registered and insured with the Defendant. The Plaintiff is alleging negligence in the driving of the vehicle.

The plaintiff says he was riding on the back of the vehicle and he was thrown out when the vehicle swerved off the road and overturned. He said he landed on a stone and injured his wrist. He said he was taken to hospital immediately after the accident but they did not check his wrist and hand properly and his wrist and hand continued to pain and 4 weeks later he went back to hospital for treatment and they then x-rayed his wrist. His wrist and hand was then immobilised for one month in plaster. He says that because of this he lost his job and has not been able to have full use of his hand and wrist and being a carpenter by trade he has lost his means of livelihood. The plaintiff clearly identifies the vehicle as the one referred to in the writ.

A witness Jacob Angai gave evidence of being on the vehicle with the Plaintiff at the time. He is unable to explain how the accident happened. He says that he worked as a carpenter with the Plaintiff before the accident the Plaintiff being his boss but that after the accident the Plaintiff was no longer working for the company.

The police officer who attended the scene was Sergeant Warren who was based at the Kundiawa Police Station at the time and he gave evidence of attending the scene and seeing the subject vehicle resting on its side off the road. He gives as the reason for the accident that the steering tie rod was loose and that pulled the vehicle off the side of the road. However where he got that evidence from is not stated and there is no suggestion that he was technically qualified as an expert in motor mechanics. Sergeat Warren was satisfied to the identity of the vehicle and as to the ownership registration and insurance. Unfortunately because of the lapse of time the Motor Vehicles Insurance Trust is unable to confirm or deny the registration or insurance details as they admit that all the records for that period have been destroyed.

The Defendant denies liability on the basis that there has been no negligence proved against the driver of the vehicle, rather the accident happened because of a mechanical fault. However the evidence before the court does not include appropriate technical evidence, merely the comment of the police officer which is not supported by appropriate expert evidence or examination. If the Defendant relies on a mechanical defect it is necessary for it to show that the owner or driver knew or ought to have known of any unusual occurrence to cause the mechanical defect. The Defendant has given no evidence at all of any history of the vehicle or its mechanical care and regular examination or service, Henderson v Jenkins & Son [1969] 3 AER 736. I am satisfied that there is an inference of negligence in the fact that the vehicle swerved off the road and overturned. I am also satisfied that the vehicle was properly registered and insured, there is no evidence or suggestion otherwise.

I will agree with the submission that there is some contributory negligence in the plaintiff riding on the back of a utility which is not designed or equipped or registered for the carriage of passengers on the back. It is well and truly time that passengers assumed some responsibility for the manner of their riding on the back of such vehicles, this especially in view of the greater publicity for road safety over the past few years and the law about seat belts in sedan vehicles. If passengers assume the risk then they must assume some of the liability. I will assess this risk at 25% contributory negligence in this type of case. I note that in another case Wally v MVIT Unreported N1029 I allowed for 50% contributory negligence but in that case there were additional factors.

On damages the Plaintiff is claiming some permanent disability to his left wrist as a result of the accident. He asserts that even though it was not until 4 weeks after the accident that the injury to the wrist was diagnosed, these injuries were the result of the accident, of him being thrown out of the vehicle. The Doctor who treated the Plaintiff at Kundiawa Hospital gave evidence and had no reason to doubt the cause of the injuries. He agrees that it is not unusual to have a minor fracture not discovered until later. He noted that the Plaintiff complained of a nagging pain following the accident. Dr Bagita did forcast there may be some post traumatic osteoarthritis. Whilst he did not assess any physical loss he did say there would be some loss of function and he assesses a loss of 30% which seems to be an assessment on the Plaintiff's occupation as a carpenter. Dr Sonza who examined the Plaintiff more recently noted that there was some malalignment of the mending of the fracture. She agreed there was no deformity but there was some tenderness which could hamper activity involving the Plaintiff's left hand. Her assessment of the degree or percentage of impairment is done on an objective basis without any considerion of the Plaintiff's occupation.

First I am satisfied that the injury to the wrist was a result of the accident. On general damages I am not satisfied that the injury is of a major nature but rather is a minor inconvenience or difficulty. It is not of the severity of the Plaintiff in the case Kulange v MVIT Unreported N824 where a village woman suffered injuries to both her hands, nor of the severity in the case Tumu v MVIT [1988-89] PNGLR 638 where the Plaintiff had his arm in a splint for 6 months following serious arm injuries. In both those cases general damages was assessed at K8,000. Whilst the Plaintiff says he had lost his job it was not a full time trade profession but instead an employment in the area of timber and hardware sales and production where through his vocational training he had a supervisory role. It is not clear how he could be said to be unable to work in such a supervisory role although it has been put that much of his supervisory work was in a “hands on” role. There is no evidence that before his work with Nokimba Youth he was fully employed.

I cannot find he has lost any full time employment only that he has a reduced capacity or ability to work.

I assess general damages at K6,000. The economic loss is difficult to assess. Firstly I am not satisfied he has lost all chance of employment, and then in so far as he was employed after he left the vocational training in 1978 he was not employed on a salary until the year before the accident so there is no history of regular employment. I am therefore left to make an assessment of a marginally reduced ability to work for a salary or to do the harder work expected in the village for his subsistance. I am unable to include in such an assessment a regular rate from the date of the accident to to-day as there is no evidence to show that his termination allegedly because of the accident was in order according to proper employment laws and rights nor how much longer after the date of the accident he would have continued in employment anyway.

I therefore make a global assessment of damages of K5,000 for economic loss.

I assess the portion of the general damages to the date of judgement to be K2,000 on which interest will be assessed at 8% from the date of the issue of the writ. Also interest will be assessed on K2,000 of the economic loss for the same period.

A summary of the plaintiff's damages is as follows:

I order Judgement for the Plaintiff in the sum of K9,179.10.

Lawyer for the Plaintiff: D L O’Connor

Lawyer for the Defendant: Young & Williams