N2161

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 1009 of 1995

BETWEEN

WILLIAM PELG
Plaintiff

AND

MOTOR VEHICLE INSURANCE (PNG) TRUST
Defendant

Mt Hagen & Waigani	:	Sevua, J
2001		:	25th July & 7th December

Damages – Personal injuries – Liability denied by defendant – Accident occurred near roadside market where there were people and vehicles – Plaintiff knocked down by vehicle – Driving at 60km near market requires high duty of care – Defendant liable for drivers negligence – Damages to be assessed.

Counsel:
M. Tamutai with Ms J. Nandape for Plaintiff
P. Honey for Defendant

7th December, 2001

SEVUA, J:	The plaintiff is claiming damages for negligence arising out of a motor vehicle accident which occurred on 24th February, 1994, on the main highway leading from Mt Hagen to Mendi near Newtown in Mt Hagen, Western Highlands Province. The plaintiff was struck by a motor vehicle registered number HAD 639, driven by one Thomas Kur, and insured by the defendant pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act, Chapter 295.

The plaintiff alleged in his statement of claim that the driver of the vehicle was negligent in his driving, control and management of the vehicle, which resulted in the collision thereby causing personal injuries to the plaintiff. Particulars of negligence alleged by the plaintiff were:-

(a)	failing to keep any or any proper look out;
(b)	driving at an excessive speed in the circumstances;
(c)	failing to drive with due care, skill, prudence and attention;
(d)	failing to steer or control the vehicle so as to avoid colliding with the plaintiff;
(e)	travelling onto the incorrect side of the carriage way when it was unsafe to do so; and
(f)	overtaking another vehicle when it was unsafe to do so.

The plaintiff claimed he sustained the following injuries:-

(a)	shock;
(b)	loss of consciousness;
(c)	lacerations, abrasions and concussions;
(d)	injuries to right clavicle
(e)	injuries to left knee; and
(f)	head injuries.

The plaintiff further claimed he has suffered physical disabilities and these are:-

(a)	headaches;
(b)	depression, anxiety and emotional distress;
(c)	inability to carry out pre-accident work activities as a subsistence style dweller;
(d)	inability to engage in pre-accident sporting, leisure and social activities;
(e)	inability to walk without assistance;
(f)	marked curtailment of social life;
(g)	necessity for a long period of rehabilitation; and
(h)	necessity to obtain assistance to move around.

There is a recent medical report by Dr. Daisy Sonja, which I will refer to later in the judgment.

At the opening of the plaintiff’s case in the trial, Mr Tamutai, counsel for the plaintiff, said that at the material time, the plaintiff was on the right hand side of the road when the driver of the vehicle (HAD 639) swerved to his wrong side of the road and struck the plaintiff, who sustained multiple injuries to his right leg, pelvis, jaw and chest. He was taken to the Mount Hagen General Hospital where he became an inpatient for sometime.

The plaintiff’s case comprised the oral testimony of Dr. Mathias Tobilu, the plaintiff himself, William Ravi and Francis Wandaki. There were also documentary evidence that were tendered without objection by the defendant, and these were:-Hospital Admission Record – Exhibit "A"; two receipts from Marian Medical Clinic – Exhibits "B" and "B1"; affidavit of William Ravi – Exhibit "C"; affidavit of Francis Wandaki – Exhibit "D"; and affidavit of Dr. Daisy Sonja – Exhibit "E".

Mr Tamutai said the main issue in this trial is one of contributory negligence. Mr Honey, counsel for the defendant seemed to agree with this when he alluded to it and said that once liability, which the defendant was contesting, was determined, that may shed some light on damages thereafter.

Dr. Mathias Tobilu, who is presently the Acting Director of Medical Services and who holds a Bachelor of Medicine and Bachelor of Surgery (MBBS) and a Master of Medicine (MMed) in Paediatrics, confirmed that the plaintiff was admitted to the Mount Hagen Out Patient Accident and Emergency Ward at 8.30pm on 24th February, 1994. The hospital records, which come under Dr. Tobilu’s responsibility reveal that the plaintiff was hospitalized for three (3) weeks from 24th February 1994 to 14th March 1994 when he was discharged. At the time of admission, the plaintiff had a broken collar bone; broken jaw; dislocated hip; superficial lacerations to the shoulder and was in pain. He was treated for pain and had plaster cast over his dislocated hip joint. A dentist also attended to his broken jaw.

As the evidence of Dr. Tobilu is not disputed, I accept his evidence, in particular, the records pertaining to the admission, treatment and discharge of the plaintiff.

The plaintiff gave sworn evidence. At this juncture, I wish to state that my observation of the plaintiff in the witness box was that, he tried his best to remember what occurred, however, due to his old age, illiteracy and the fact that the accident occurred more than seven years ago, his memory and recollection were not reliable. That is not to say that he was lying on oath. I think it was a case of poor recollection owing to his age, illiteracy and the time span between the accident and trial rather than concoction. In my view, these facts explain the variance in his evidence with other evidence.

In essence, his evidence was that he was at Oki Tradestore and was going home. As he was attempting to cross the main road, but before stepping onto the sealed road, a vehicle travelling at high speed knocked him over and drove off. He was taken to the hospital where he regained consciousness the next morning. In lay man’s language, he said he suffered a broken leg, broken arm and his body crushed into pieces and sore backbone with pain still existing. He was hospitalised for about a month then discharged, however, he has been frequenting the hospital for medical checks and treatment. He said he is still feeling pain in his body and is presently walking with the aid of crutches.

In cross examination, the plaintiff did not seem to understand and appreciate questions that were being put to him. For instance, Mr Honey put to the plaintiff that he (plaintiff) walked behind one of the parked vehicles when he crossed the road. The plaintiff’s reply was, he might have got hit, he did not know. When Mr Honey suggested again to the plaintiff that he (plaintiff) walked behind a parked vehicle and didn’t look but just kept walking, the plaintiff said he did not look to the left nor to the right. He was trying to go home and walked straight onto the road.

William Ravi was the second witness for the plaintiff. He denied suggestions by the defendant’s counsel that the accident occurred at approximately 7pm and that the plaintiff had crossed from behind vehicles on the side of the road without looking when he was struck by the defendant’s driver.

However, I think the important part of his evidence is that, the plaintiff was hit on the side of the sealed road on lose gravel, not on the road. And when it was put to him that the plaintiff was hit on the side of the road, the witness said the plaintiff was trying to cross the road, he had one foot on the sealed road and the other on lose gravel when he was struck by a vehicle travelling at high speed.

The third witness for the plaintiff was Francis Wandaki. Upon cross examination he maintained that the accident occurred about 5pm or 6pm. He was not certain if there were vehicles parked on the side of the road. He said he saw the plaintiff lying on the side of the road.

The defendant adduced evidence from the driver of the vehicle, which struck the plaintiff, one Thomas Kur. His evidence was that, the time was around 7pm in the evening, it was dark so he had his lights on. He was driving home with his family as he usually did. He drove within the legal speed limit of 60 kilometres per hour or less.

The accident occurred at a public market when he said there were cars parked on the left side of the road facing the town. There was a car in front of him on the left hand side of the road, which had its lights on. He did not see the plaintiff as there were cars parked on the roadside and there were so many people nearby. The plaintiff popped out from the market onto the bitumen. The plaintiff just came and hit the driver’s left hand side of the wheel and bounced onto the bonnet then onto the bitumen. He denied speeding and he denied he was negligent.

Having considered all the evidence and analysed them, I have some difficulties accepting the defendant’s witness evidence. I observed the demeanour of Thomas Kur in the witness box and was not impressed with him. Of course, he used his position in the government, and in particular his seven years engagement as Associate to Chief Justice Prentice as a bridge to attempt to convince the Court that he was not negligent. Where there are conflict in the evidence, I prefer the evidence of the plaintiff and his witnesses.

If the defendant’s driver was not negligent and not speeding, why did he not swerve or apply a sudden brake to avoid the accident? I do not believe his evidence and I have difficulty in accepting that there were so many people walking and there were many vehicles parked on the roadside near the market. Yet he did not slow right down to say, 10 – 15 kilometres. Why did he drive normally at 60 kilometres under the circumstances he has adverted to?

In my view, where there is a market and there are many vehicles parked on the roadside and many people rushing, the duty of care of the driver of a vehicle becomes a very high duty of care. In this case, I consider that Thomas Kur was negligent in the discharge of that duty of care. He did not slow down but drove at about 60 kilometres in a busy roadside market with many people rushing. I find that he was negligent in the circumstances.

The plaintiff’s case is that when he was hit, he fell down onto the roadside. That is supported by the evidence of both William Ravi and Francis Wandaki. The defendant’s evidence is that the plaintiff fell onto the bitumen, but if I accept that, I would have also accepted that the driver had run over the plaintiff on the bitumen because he sped off after realising he had hit a pedestrian. There is no evidence at all from Thomas Kur that he swerved to avoid the plaintiff on the bitumen then sped off in fear of his own life.

Experiences in public roadside markets in the Highlands, and in and around Mt Hagen for that matter, have shown that there are always many people and vehicles that if you were passing such a market, you would have to really slow down, almost crawling, if I could put it that way. A driver would be carefully looking over to see if people are crossing the road in front of him or a vehicle suddenly pulls onto the road. I do not accept that one would be driving past a busy market at 60 kilometres per hour or a little less, and call that normal driving. In my view, that would be negligent driving.

I consider that the issue of time is not really relevant. Whether the accident occurred at 7pm or 5pm or 6pm, it did not really matter. Of course the defendant would say it was dark therefore the plaintiff was negligent in crossing the road. However, in my view, the most important consideration here is speed and keeping a proper look out. Considering that the scene of the accident was a market, and by the defendant’s own evidence, there were many vehicles parked on the side of the market, and many people rushing, I find the defendant’s driver negligent in his driving. At a busy market with plenty of parked vehicles and many people rushing, driving past at 60 kilometres per hour is negligent and a high speed although may be within the speed limit. I find that at that speed, the defendant driver was driving at high speed under the circumstances. He failed to keep a proper look out and he cannot blame the plaintiff for suddenly popping out from behind a vehicle to the front of his vehicle. I do not believe his evidence and I reject it.

Whilst it is true there are variances in the plaintiff’s evidence, I consider that the essential part of his case is that he was struck on the side of the road, not on the bitumen road. I therefore cannot find that he contributed to his own injury. There is no contributory negligence.

I find the defendant’s driver, Thomas Kur, negligent therefore the defendant is liable in damages for negligence. Accordingly, I enter judgment for the plaintiff on liability with damages to be assessed.
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Lawyer for Plaintiff		:	Tamutai Lawyers
Lawyer for Defendant		:	White, Young & Williams