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Sos, (an Infant by Her Next Friend, Sos Pyawa) v Motor Vehicles Insurance (PNG) Trust [1995] PGNC 152; [1995] PNGLR 249 (8 March 1995)

PNG Law Reports 1995

[1995] PNGLR 249 - Priscilla Sos, an Infant by Her Next Friend, Sos Pyawa v Motor Vehicles Insurance (PNG) Trust MVIT

[1995] PNGLR 249

N1305

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PRISCILLA SOS AN INFANT BY HER NEXT FRIEND SOS PYAWA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

20 February 1995

8 March 1995

NEGLIGENCE - Motor vehicle accident caused by falling off back of speeding PMV - An accompanying guardian has some responsibility for 11 year old girl riding on back of PMV - Contributory negligence in guardian.

DAMAGES - Young girl - Head injuries - Post concussion syndrome - Quantum of damages.

Facts

The infant Priscilla Sos by her next friend claimed damages for injuries sustained when she fell off a PMV, due to the alleged speeding and swerving of the driver. She was accompanied on the PMV by an adult. The Court held that the driver was responsible for the accident but there was contributory negligence by her guardian in not ensuring that she was safely in the vehicle.

Held

N1>1.       There is an onus on the drivers of vehicles licensed to carry fare paying passengers to travel with due regard to the safety of the passengers.

N1>2.       If an adult is travelling with a child that adult has some responsibility to ensure tha tthe child rides safely.

N1>3.       Liability is appointed between the driver and the child’s guardian 60 - 40 per cent, respectively.

Cases Cited

Papua New Guinea cases cited

Boma v The State [1990] Unreported N901.

Eldik v M.V.I.T. [1994] Unreported N1257.

Maipen v M.V.I.T. [1990] PNGLR 559.

Pose v The State [1981] PNGLR 556.

Counsel

D.L. O’Connor, for the plaintiff.

K Frank, for the defendant.

8 March 1995

WOODS J: The plaintiff is claiming as next friend for injuries received by an infant Priscilla Sos who was injured on 7 July 1991 when she fell off a PMV on the Baiyer Lumusa Road in the Western Highlands Province. It is alleged that the PMV was driven so negligently that she lost her grip on the back and fell off and fell onto her head and suffered permanent injuries.

The infant was born in October 1980 and she was therefore aged 11 years at the time of the accident. She had gone with others from her family and village to a brideprice ceremony and they were returning home when it is alleged that the driver swerved at too high a speed to avoid some potholes on the road and thereby caused the infant to lose her grip and fall off onto the road striking the road, with her head.

I am satisfied that the infant was a passenger on the PMV, Registration number P 8328, which was duly registered with the Motor Vehicles Insurance (PNG) Trust at the time of the incident.

There was evidence from two passengers on the back of the PMV who attest to riding on the back and that the driver swerved to avoid some potholes and that he swerved so violently that many of the passengers on the back were thrown off their seats onto the floor of the back. They say that the girl was seated at the very end of the seat and she fell off the back of the vehicle when the driver swerved. The other witnesses do not suggest that the driver was speeding unnecessarily.

The evidence of the policeman who investigated the scene is that the accident was reported to the police station on the 7 July but that he could not visit the scene until the next day. So he was unable to see the exact site of the vehicle and had to just rely on what other persons told him.

The incident happened on a gravel road. The infant was apparently in the care of her grandfather on the vehicle. There is confusion in the evidence as to whether the vehicle was travelling up or down a hill. While people talk of speeding there is no clear evidence to suggest any excessive speed. However the vehicle was a registered passenger vehicle and there is always an onus on the drivers of vehicles licensed to carry fare paying passengers to travel with due regard to the safety of the passengers in the circumstances of the particular road. There is also the added question of who was responsible for the way the infant was riding on the back. A driver is responsible for ensuring that passengers ride safely although once they are safely on the vehicle he cannot know what they are doing on the back. We do not know what measures the guardian of the infant was taking to ensure the infant in his care was riding safely. Unfortunately that guardian has not come to this court to give any evidence to assist in determining how the girl fell off. However, anyone in charge of children owes a duty to protect the children from possible dangers. How was the child seated on the back, how was she holding on, was she relying on her guardian to hold on to her. I am satisfied that if an adult is travelling with a child that adult has some responsibility to ensure that the child rides safely. The suggestion appears to be from the other persons travelling on the back that the infant was seated right at the end of the bench seat against the tailgate and so when the vehicle swerved such that people had to grip on extra hard the infant was the person most at risk.

Whilst there is no evidence suggesting any reckless driving and even any excessive speed, the driver of a PMV has a higher onus to drive with due care to the road conditions and if he swerves so sharply that passengers on the vehicle are thrown about or affected he must assume some responsibility. So in this case I find some responsibility in the driver and therefore in the Trust, however I am satisfied that there is some contributory negligence in the guardian of the infant in not ensuring the child was riding safely at the very back of the vehicle. So the next friend cannot avoid his own responsibility for the lack of care of the person in whose care he placed his child.

I will assess the liability of the driver at 60 percent.

ON QUANTUM.

At the time of the accident the infant was aged about 11 years. She was initially admitted to the Tinsley Health Centre but was referred to Mount Hagen Hospital for a severe head injury from which she developed signs of intracranial haemorrhage. Burr holes were drilled to relieve the intracranial pressure. After a month in Hagen Hospital she was referred back to Tinsley Health Centre to be nearer her family. The Doctor noted that she appeared to be recovering. Some 6 months later she was seen again by the Doctor who noted a slow intellectual response to questions and commands, and she had a slurred speech and some muscle power problems on the left side. She was seen later on in 1992 by Dr Kulunga who noted that she seemed to be suffering from post cerebral concussion which is resulting in a right sided weakness. Dr Kulunga saw the girl again this year and noted a reduction in the percentage permanent disability he had given earlier.

A Dr Johnson on his examination notes that there would be some minor personality change and probably some disruption to the girl’s schooling. There have been no school records to show any real change in the girl’s potential or achievement. Dr Johnson notes no abnormality in the girl’s mental state and that all her systems, her gait, and walking were normal.

Unfortunately there is no clear measure of the girl’s disability, it is all vague assessments following what was a head injury. I am satisfied that there has been some injury and some minor disability, but there is no objective data to really assess how much. The girl comes from a rural village, there were no school records to show any special ability or potential. I am satisfied there is some evidence of a slowing of her ability.

In Ikowa Boma v The State [1990] unreported N901 a young girl suffered some post concussion syndrome as well as a fractured thigh which resulted in a shortening of the leg and general damages was assessed at K12,000.

In Maipen v M.V.I.T. [1990] PNGLR 559 there was a loss of consciousness and a depressed fracture of the skull which led to some changes in mental capacity and general damages was assessed at K12,000.

In Anna Pose v The State [1981] PNGLR 556 the plaintiff suffered a fractured skull and some brain damages which led to weakness in the right side and general damages was assessed at K9,000.

In Eldik v M.V.I.T. [1994] unreported N1257 a female school teacher suffered post concussion syndrome with some impairment to the right arm from the brain damage and general damages was assessed at K28,000.

I am considering a young girl who definitely will have some impairment for the rest of her life which however is very difficult to accurately assess. I feel that it must be close to the Eldik case above and will assess general damages at K20,000. However the reduction for the negligence and responsibility of the next friend for the bad care taken by the person into whose custody she was in at the time of 40 percent reduces the damages to K12,000. I will allow interest of 8 percent on K4,000 of that from the date of the writ to to-day which assesses at K960.

I order judgment for the plaintiff at K12,960.

Lawyer for the plaintiff: D.L.O’Connor.

Lawyer for the defendant: Gadens Ridgeway.