N1273

PAPUA NEW GUINEA
[In the National Court of Justice]

WS 79 of 1992

YAPI KOKA
Plaintiff
V

MOTOR VEHICLE INSURANCE (PNG) TRUST
Defendant

Mount Hagen: Woods J
20 April, 29 July, 21 October 1994

Negligence - liability - motor vehicle accident - two vehicles colliding.

Damages - personal injuries - head injuries - social and intellectual disfunction - village man - a leader in the community.

Cases cited:
Coady v MVIT [1985] PNGLR 450
Colbert v MVIT [1988-89] PNGLR 590
Guli v MVIT [1994] Unreported N1255
Maipen v MVIT [1990] Unreported N813
MVIT v Pupume [1993] Unreported SC452
Pose v The State [1981] PNGLR 556
Reading v MVIT [1988-89] PNGLR 266

P Dowa for the Plaintiff
C Hudson for the Defendant

18 October 1994

WOODS, J: The Plaintiff is claiming damages for personal injuries he received when he was a passenger in a motor vehicle which collided with another vehicle on the road between Laiagam and Kandep in Enga Province on 19 May 1989. The vehicle the plaintiff was in was a Mitsubishi truck registered number AFU 979 belonging to Kandep High School and it collided with a Toyota truck registered number AFL 557 however the plaintiff alleges that the accident was caused by the negligent driving of Sa’a Kuro who was the driver of the High School truck. The plaintiff alleges that the High School truck was properly registered and insured with the Defendant in accordance with the Provisions of the Motor Vehicles (Third Party Insurance) Act.

The evidence from the Plaintiff is that he was the Chairman of the School Board and was riding in the school truck going from Laiagam to Kandep when as the vehicle came around a sharp corner it was bumped by the other vehicle. The plaintiff was seated in the cabin of the truck next to the off-side door and when the other vehicle bumped he went forward and hit his head on the handle he was holding onto. The plaintiff insists that he had the seat belt on. He did not remember anything else but states that he later learnt that the accident was caused mainly due to the fault of his driver. So he appears to assume that the fault lay in his driver. He understands he was taken initially to Laiagam Health Centre then to Kandep Health Centre where he lost consciousness for 3 days and then admitted to Laiagam Health Centre on 24 May. 

Evidence was given by the driver Sa’a Kurao who admits to the collision with the Toyota Stout registration number AFL 557 but he does not know the owner of it. He says that the road was narrow and he admits that he was driving a little bit fast. He agrees that the police said he was wrong because he collided in the middle of the road. Although then he says in evidence that the other car was speeding and he was speeding and as a result we collided. He agrees that the plaintiff was wearing a seatbelt and that the plaintiff was taken to hospital in a car.

Robert Ganim the Headmaster of the School confirmed that the school truck was properly insured by producing the then current certificate of insurance. 

Tom Erasi who was a teacher at the High School at the time and was in the vehicle with the plaintiff states that the driver did not keep to the correct side of the road. He then agrees that the plaintiff had his head and upper part of his body thrown forward by the force of the impact. This does raise the query as to whether the plaintiff was really wearing his seatbelt as normally the seat belt would restrain any forward motion of the passenger. After the accident the witness then says that he walked with the plaintiff to the Laiagam Health Centre, this seems to conflict with the evidence of the plaintiff and the driver. He then says that he and the plaintiff returned to the scene of the accident later the next morning with the police but this conflicts with the evidence that the plaintiff was injured and taken to the hospital.

The policeman Carl Toro attended the scene some hours later but from what he was told blames the school vehicle for the collision but then did agree that the other vehicle could have been travelling too fast also. He also agreed it could be very easy to have an accident as the scene was a sharp bend.

A photograph was tendered of the scene of the accident and it shows a fairly sharp bend although it must be realised that that road has many sharp bends and is quite narrow and requires careful driving. I know the road reasonably well as I have driven it a number of times.

A Doctor Marinki gave evidence and said he was at Laiagam Health Centre in May 1989 and he reported that the plaintiff was admitted to the Health Centre on 24 May after apparently being referred from Kandep Health Centre.

The Defence has submitted that there was no negligence in the driver of the school vehicle but that if there was any negligence it was in the driving of the other vehicle. 

I am satisfied on the evidence that there was a collision between two vehicles on the road on the day in question. From the evidence and from the photograph and from my own knowledge of the road I am satisfied that the road does require extra care in negotiating the bends as the road is narrow and as the policeman said it is very easy to have an accident there as it is a sharp bend. Whilst I am satisfied that in fact such an accident could infer careless driving by both vehicles the plaintiff was quite entitled to proceed against the driver of his vehicle as there was negligence in his driver in the negotiating of this road. In such a case he is entitled to claim the total damages against this one vehicle and if the defendant considers that there may be another joint tortfeasor then it was always open to the defendant to join that other driver. 

On the question of contributory negligence for failing to wear a seatbelt I am not satisfied that the evidence is sufficient to draw that conclusion. I agree doubts have been raised by Tom Erasi’s evidence on how the plaintiff was injured but these doubts are not sufficient on their own. 

I am therefore satisfied that the plaintiff was a passenger in the High School vehicle and there was some negligence in the driving of that vehicle such that the plaintiff is able to claim against this vehicle and I am not satisfied on any contributory negligence. Also there was no doubt as to the proper certificate of insurance of that vehicle with the defendant as required by law. 

Damages

The Plaintiff is in effect claiming that the knock to the head has caused him some permanent injuries. When the accident happened the plaintiff was treated at the Kandep Health Centre. The District Health Officer at the Centre Ansan Isingi noted that the plaintiff was admitted on the 20th May 1989 but understood he had initially gone to Laiagam Health Centre. He was given outpatient treatment at Kandep, penicillin, Aspirin and Antibiotic dressing. He was then referred back to Laiagam. At Laiagam he was treated by a Dr Marinki who noted that he was admitted on 24th May 1989. He understood he had been unconscious for 3 days, although this was not so according to the report of Ansan Isingi. Dr Marinki noted he was moderately disorientated and drowsy. There was a frontal scalp wound which was sutured with stitches and there was a shoulder bruise. He was discharged from Laiagam on 31 May 1989. He was then reviewed on 28 June 1989 and had recovered well with some moderate memory and intellectual defects.

There was then no evidence of any further treatment or medical attendances until 2 years later when he was examined by Dr Brother Andrew in 1991. Brother Andrew noted reduced concentration

-	poor word recall
-	poor number recall
-	some hesitation with location of objects
-	reduced fine control
-	significant construction dyspraxia

In assessing the brain damage Brother Andrew placed emphasis on the period of total unconsciousness, however from the evidence of the medical attendances at the time of the accident there was no unconsciousness. However Brother Andrew does assess that there is a clear relationship between the injuries sustained and the described motor accident. He is satisfied that the plaintiff had suffered some severe traumatic brain injury and very little improvement could be expected except that as a man with some intelligence and good family and community support he will gradually learn compensating mechanisms which will permit a lessening of some disabilities. Brother Andrew presents some percentages for the different aspects of the disability. Brother Andrew saw the plaintiff again early this year and noted that the plaintiff seemed to be more depressed and found this to be expected in a person who did not have the benefit of physio and occupational therapy following severe injury. 

Professor Watters a medical practitioner and a professor of surgery at the Faculty of Medicine UPNG gave evidence of examining the plaintiff in February 1994. 

He had been told that the plaintiff had been unconscious for 3 days and had sustained a open fracture of his frontal bone. He noted that he had reduced muscle power in the right arm and leg. He stated that this could have been a result of a head injury. He gave an estimate of 15 percent disability for that loss of power. He noted that it is harder to quantitate the undoubted social and intellectual dysfunction arising from head injury and said that further intellectual and social testing could be performed by a psychiatrist if a more detailed assessment is required.

Dr Webb was called by the Defendant to give evidence of his assessment. He also is a medical practitioner. He examined the plaintiff in April 1994. He states that the plaintiff’s detailed recollection of events is inconsistent with an allegation of substantial brain damage. He does state that an actual examination of a person who claims memory loss and brain damage causing emotional upset, reduced concentration, poor recall is very difficult because of the lack of any objective form of assessment. On examination Dr Webb found that the plaintiffs vital signs were normal and he was oriented in time place and person. He had an area of the mid-forehead on the hairline which exhibited thickening of the skull bone which would be consistent with a localised fracture. And he did show a reduction of power in the left arm and leg however he then found a greater circumference of the different muscle groups in the right arm and leg than in the left whereas if there was weakening then there would normally be muscle bulk loss. In conclusion Dr Webb did state that it is apparent that the plaintiff does have some impairment but there is an ability to carry out most activities of daily living. He gives a maximum impairment for the plaintiff at 15 percent.

As has been often said it is very difficult to accurately assess the impairment of a person who lives and works in a village environment where there are often no foundation criteria from which to work. And with brain injuries and concussion there are no specialist trained psychiatrists available or with the time and opportunity to assist in any assessment. However in this situation the courts find that general practitioners who have had experience in the country and in particular with contact with the rural people do become experienced in the social behaviour and patterns of the people and are able to give reasonable assessments of behaviour expectations and patterns. The court is now presented with different percentages of impairment or disability. All medical witnesses agree that only after extensive psychiatric testing would it be possible to ascertain with total conviction the extent of disability however such is not be possible. 

I am satisfied that the plaintiff has suffered some impairment from the injuries received in the accident and this does affect his enjoyment of life and his ability to do his day to day activities and has reduced his ability to be an active participant in society. It is noted that he was a so-called businessman in the village environment by way of operating a tradestore and was of sufficient status to be on the Kandep High School Board of Governors. I have already noted that the evidence does not support the story that he was unconscious for 3 days. 

In Coady v MVIT [1985] PNGLR 450 there was substantial pain at the time and then some possible intellectual impairment and general damages was K12,000.

In Maipen v MVIT [1990] Unreported N813 there was loss of consciousness and depressed fracture of the skull and general damages was K12,000.

In Colbert v MVIT [1988-89] PNGLR 590 there was a depressed skull fracture and memory loss, speech defects diminished intellect and much more serious impairment than here and general damages was K70,000. 

In Reading v MVIT [1988-89] PNGLR 266 there was permanent brain damage and general damages was K75,000. 

In Guli v MVIT [1994] Unreported N1255 there was some minor post-concussion syndrome and general damages was assessed at K11,000.

In Pose v The State [1981] PNGLR 556 there was brain damage which resulted in minor loss of function of the right arm and leg and general damages was K9,000.

In MVIT v Pupune [1993] Unreported SC 452 where the plaintiff complained of frequent headache, defective memory and defective consideration and also a persistent left facial nerve paralysis and excessive laceration from the left eye and a forehead scar the Supreme Court assessed general damages at K11,000. 

This case before me now is clearly not as serious as the Colbert and Reading cases. This case with the loss of function of the arm and leg seems to be similar to Pose case and with the defective memory and defective consideration seems to like the Pupune case. I will therefore assess the general damages from an analogy to these two cases although considering this is a bit more serious. I will assess an amount of K15,000 for general damages.

The plaintiff is also claiming economic loss because he was able to run a trade store but is now not able to and the trade store has ceased operation. It has been said many times now that if you operate a modern style economic business the court is entitled to be presented with appropriate evidence to support such claims by way of account or ledger books and income tax returns or something appropriate. Actually the evidence does suggest that his relatives did help with the running of the business and there is no real explanation why his relatives ceased running it some time after the accident. Any assessment on the profitability of the trade store is purely hearsay evidence and not supported with appropriate evidence. There was a claim related to the expenses for trips as a member of the Board of the School however that is purely expenses for that activity, not remuneration. 

I must however accept that because of his injuries the plaintiff is less able to be in some income earning activity. Thus he is less able to operate his trade store or do to the manual garden work expected in his lifestyle. So even without finding loss of profit I must still consider some loss because of his inability to earn his way. I will assess an amount of K30 per week for loss of income from his reduced ability. Using that figure from the date of the accident comes to K8,460.00. Interest on that at 4 percent comes to K1,835.68. Future economic loss based on his present age at 44 years so I will allow for a further 11 years using the 3 percent table which comes to K14,700.00. 

There is reference to Special damages in the claim however they seem to relate to the expenses for medical examination not for medical treatment so they must be costs of the case not damages. 

To summarise:

General Damages	K15,000.00	
Interest on part to date from date of writ	K1,255.87	
Past economic loss	K8,460.00	
Interest		K1,835.68	
Future economic loss	K14,700.00	
Total	K41,251.55	

I order Judgement for the Plaintiff in the sum of K41,251.55.

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Lawyer for the Plaintiff: P Dowa
Lawyer for the Defendant: Gadens Lawyers