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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 ilaim for damages fors 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 outinjuring his arm and hand.&and. 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 Piff is alleging neglinegligence in the driving of the vehicp>

The plaintiff says heys he was riding on the back of the vehicle and he was thrown out when the vehicle swerved off the road anrturned. He said he l he landed stoa 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 tpital for treatment and they then x-rayed his wrist. 160; His wand hand was thes then immobilised for one month in plaster. He that because of this heis he lost his job and has not been able to have full use of his hand and wrist and being a carpent tradhas lost his mean means of livelihood. The plaintiff clearly idietifies the vehicle acle 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 he accident happened. 160; He says th worked as d as a carpenter with the Plaintiff before the accident the Plaintiff being his but that after the accident the Plaintiff was no longer working for the company.

Thep>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 as the reason for the the accident that the steering tie rod was loose and that pulled the vehicle off the side of the road. er where he got that evideevidence from is not stated and tis no suggestion that he wahe was technically qualified as an expert in motor mechanics. Sergeat Waras satisfied toed to the idy of the vehicle and as to s to the ownership registration and insurance. Unfortunately because of the lapse of time the Motor les Insurance Trust is unable to confirm or deny the registegistration or insurance details as they admit that all the records for thriod have been destroyed.

The Defendant denies liabiliability 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. Howeve evidence before thee the court does not include appropriate technical evidence, merely the comment of the police officer which is not supported by appropriatert evidence or examination. If efendant relies oies ones 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. efendant has given no evid evidence at all of any history of the vehicle or its mechanical care and regular examination or service, Henderson v Jenkins & So69] 3 AER 736. I am satisfied there is anis an inferenference of negligence in the fact that the vehicle swerved off the road and overturned. I am also satisfhat the vehe 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 tiat that passengers assumed some responsibility for the manner of their riding on the back of such vehicles, this especially in vf the greater publicity for road safety over the past few years and the law about seat belt belts in sedan vehicles. If passengssume the risk tisk then they must assume some of the liability. I will assess this risk at 25% contributory negligen this type of case. I note that in anothse Wale Wally v MVIT Unreported N1029 I allo allowed for 50% contributory negligence b that there were additional factors.

On damagesmages the the Plaintiff is claiming some permanent disability to his left wrist as a result of the accident. He as that even though it h 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 tai Plaintiff at Kundiawa Hospital gave evidence and had no reason to doubt the cause of the injuries. He agrees that it isunusu l to have a minor fracture not discovered until later. He notet the Plaintlaintifintiff complained of a nagging pain foll the accident. Dr Bagita did forcaste maye may be some post traumatic osteoarthritis.itis. Whilst h not assess any pany pal loss he did say there wore would be some loss of function and he assesses a loss of 30% which seems to be an assessment on the Plaintifccupation as a carpenter. Dr Soho examined the Pthe Pthe Plaintiff more recently noted that there was some malalignment of the mending of the fracture. She agthere was no deformiformity but there was some tenderness which could hamper activity involving the Plaintiff's left hand. Her sment of the degree oree 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 al daml damages was assessed at K8,000. Whilst the Plaintiff sa hahe had lost his job it was not a full time trade profession but instead an employment in the area of timber and hardwares anduction where thro through his vocational training he had a supervisory role. It is nois not clew he coue 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&#822le. There is no evidence that before his work with Noth 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 mic loss is difficult cult to assess. Firstly I am not satisfieh he has lost all chance of employment, and then in so far was employed after he left the vocational training in 1978 he was not employed on a salaryalary until the year before the accident sre is no history of regulargular employment. I am therefore lefmake an e 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 clude in such such an asses a regular rate from the dahe date of the accident to to-day as there is no evidence to show that his termination allegedly because o accident was in order according to proper employment laws 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 bessed ssed 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