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Terema v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 74; N1196 (14 February 1994)

N1196

PAPUA NEW GUINEA
[In the National Court of Justice]

ROSE TEREMA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mt Hagen: Woods, J
18 November, 14, 15 December 1993, 14 February 1994

Negligence - operation of back hoe - failure to take proper precautions - duty of care to passer-by - liability.

Damages - personal injuries - loss of leg - married woman - General Damage of K26,000.

Cases cited:
The following cases are cited in this judgement.
Korrolly & Os v MVIT [1991] Unreported N941
Morris v MVIT [1979] Unreported N179

P Kunai for the Plaintiff.
A Kandakasi for the Defendant.

14 February 1994.

WOODS, J: This is a claim for personal injuries suffered by the Plaintiff when she was struck by a back-hoe operated by the Water Board in Mount Hagen on the 30th May 1991. The Plaintiff claims that she was walking along a street in Mount Hagen and whilst she walked to the side of the road where the back-hoe was operating the operator of the back-hoe was so negligent in the duty of care to passers-by that the back-hoe moved suddenly to where she was walking and struck her and knocked her down and injured her legs so badly that one of her legs had to be amputated.

The evidence was that the back-hoe was working on pipe-laying across a road in the town and that whilst the operator and his assistant may have placed sufficient warning signs around the area there was a path past where the machine was operating and the plaintiff was walking beside a fence at the side of the road when she was struck. The operator and his assistant said that they were keeping a proper look-out but they did not see the plaintiff until there was a shout and she was lying on the ground underneath the machine. They said that they had placed appropriate warning signs. The operator's assistant said he was on the back-hoe with the operator keeping a watch and directing any traffic. He suggested that the machine was settled onto the ground while it was digging and that the back blade was suspended in the air and the lady must have walked under it and the machine must have lurched and dropped the blade onto her. However he gives no explanation as to how the plaintiff must have got so close behind the machine without him seeing. He said that he had to ride on the machine to be able to see both sides to stop people.

The negligence alleged is that the operator of the back-hoe failed to take proper precautions for the safety of persons who were using the road whilst they were working the machine. This raises the duty of care owed by persons operating dangerous machinery in public streets especially when such operation blocks or partly blocks the passage-way that people ordinarily use. There is no dispute that the operator of the machine namely the Water Board accepts it has a responsibility to the public by the fact that it employs someone to be with an operator to control the traffic of people or machines. However there is no doubt that a back-hoe is a potentially dangerous machine. It has two operating ends. One end has a trench-digging apparatus, and the other end has a wide scoop. It therefore presents dangers to anyone who gets too close from both ends. When an operator is busying working at one end at a time, there must then be a duty on the watchman or safety look-out to watch all around the machine especially when it is clear that the machine could move backwards from the direction of the digging. Members of the public may not necessarily know the potential areas of movement of such a machine so there is a heavy onus on the operators to take appropriate precautions to warn and look-out for passers-by. Ideally the whole area of possible movement of the machine should be fenced off from the public, however there is no evidence that that was the situation here. There was talk of warning signs but that may not be sufficient where the machine is operating on a public thoroughfare and people are being allowed to pass. There is no evidence that the area was properly cordoned off. It appears highly likely from the evidence of the operator and his watchman that the watchman may have been spending most of his time watching the operation of the machine and not watching out for passers-by. The operator and his watchman have given no satisfactory explanation of how the machine could have accidentally run over the plaintiff or of any negligence by the plaintiff. Rather the whole picture from the evidence is of a failure to properly secure the area of operation and potential movement of the machine and failure to watch out for legitimate passers-by during the operation of an especially dangerous machine.

I am satisfied that the machine, a back-hoe operated by the Water Board, has been properly identified and there is appropriate evidence of the registration and insurance of the machine under the Motor Vehicles (Third Party Insurance) Act.

I am satisfied that there was a failure by the operator and the watchman to take proper precautions for the safety of legitimate passers-by during operation of the machine and I find no evidence of any negligence by the plaintiff.

DAMAGES

The Plaintiff suffered the amputation of a leg below the knee and is thus permanently disabled for the rest of her life. She is a married woman aged about 34 years and she resides with her husband in Mount Hagen. Even though she is currently an urban dweller she is still severely limited in performing many of the tasks expected of a married woman in PNG. In the case Morris v MVIT [1979] Unreported N179, an amount of K20,000 was awarded as general damages for the loss of a leg. In the case Korrolly & Os v MVIT Unreported N941 the Judge carefully considered figures for general damages in the case of a young village man who had lost a leg and awarded K25,00 for general damages. I am satisfied that the loss to a married woman can be assessed at just as much as a young man as a woman is expected to participate in quite physically demanding tasks. I find that the figures referred to in that case is a good guide.

For general damages for pain and suffering and loss of enjoyment of life I will award a sum of K26,000. I will allow interest at &% on K8,000 of that from the date of the Writ till today which assesses at K1,201.10.

I order Judgement for K27,201.10.

Lawyer for the Plaintiff: Kunai & Company.
Lawyer for the Defendant: Young and Williams.