N2860

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 828 OF 2003

OMBEN KUMBE

V

MOTOR VEHICLES INSURANCE LTD

MT HAGEN: CANNINGS J
14, 19, 21 OCTOBER 2004, 28 JULY 2005

Insurance – third party liability insurance – compulsory motor vehicle insurance legislation – whether claim for damages in respect of bodily injury to a person arose out of the use of a motor vehicle – whether motor vehicle insured – onus of proof – standard of proof – Motor Vehicles (Third Party Insurance) Act 1974, Section 54.

Negligence – motor vehicle accident – particular relationships – motor vehicle driven across public park – playing field – duty of care owed by driver to persons using public park – standard of care – causation – whether any break in chain of causation due to inappropriate primary-trauma care.

Damages – measure of – personal injuries – motor vehicle accident – assessment exceeding statutory limit on liability – damages limited to K150,000.00 – Motor Vehicles (Third Party Insurance) Act, Section 49(2).

Interest – award of interest on damages – Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 – interest awarded in addition to damages.

Costs – discretionary – costs awarded in addition to damages.

The plaintiff, a young man in his final years at school, claimed that while playing touch rugby in a public park, he was hit by a utility truck, driven negligently. He claimed that the vehicle was insured by the defendant. He claimed that as a result of the driver’s negligence he suffered severe and permanent injuries and was rendered a quadriplegic. The defendant, denying liability, claimed that the plaintiff had not proven that his injuries were caused in the manner alleged or that the vehicle was insured. Further, that if the defendant is liable, the amount of damages should be reduced because of inappropriate primary trauma care given by bystanders who transported the plaintiff to the hospital.

Held:

(1)	A person making a claim for damages in respect of bodily injury under the Motor Vehicles (Third Party Insurance) Act has the onus of proving that the injury was caused by or arose out of the use of a motor vehicle in the circumstances prescribed by Section 54(1) of the Act.

(2)	The relevant standard of proof is on the balance of probabilities.

(3)	In a case where the plaintiff presented eyewitness evidence of a collision between a motor vehicle and himself in a public park, corroborated by medical evidence and evidence of a police investigation, and where the defendant presented no evidence, the onus of proof was discharged to the required standard.

(4)	In circumstances where the plaintiff presented evidence that the vehicle was insured, and where the defendant presented no evidence, and given that the defendant was in the best position to give evidence rebutting the plaintiff’s claim, the onus of proof that the vehicle was insured was discharged, notwithstanding the plaintiff’s failure to adduce a certificate of insurance as evidence. Imambu Alo v MVIT [1992] PNGLR 487 and Pare Umbe and Ngants Kopi v MVIT (1998) SC585, distinguished.

(5)	The driver of the motor vehicle committed the tort of negligence in relation to the plaintiff. The defendant is therefore liable to the plaintiff for damages.

(6)	Damages were assessed for general damages (K280,000.00); future economic loss (K40,000.00); special damages (K14,000.00); special house (K30,000.00); future medical and related expenses (K24,000.00); and nursing expenses (K24,000.00); a total of K412,000.00.

(7)	However, the total amount of liability of the defendant is by Section 49(2)(a)(i) of the Motor Vehicles (Third Party Insurance) Act capped at K150,000.00 and that is accordingly the amount of damages payable by the defendant to the plaintiff.

(8)	Interest and costs are payable in addition to the total amount of damages. Reading v MVIT [1988] PNGLR 266 applied.

(9)	Interest of K11,103.20 is awarded under the Judicial Proceedings (Interest on Debts and Damages) Act.

(10)	The total judgment sum is K161,103.20.

Cases cited:
The following cases are cited in the judgment:

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260 (L)
Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350
Bepiwam Ambom v MVIT (1992) N1116
Browne v Dunn (1893) The Reports 67
Charles Pupu v Pelis Tomilate and The State [1979] PNGLR 108
Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Elizabeth Moini v Government of Papua New Guinea [1977] PNGLR 39
Garo Kei v MVIT [1992] PNGLR 195 
Haiveta v Wingti (No 1) [1994] PNGLR 160 
Imambu Alo v MVIT [1992] PNGLR 487
Jack Lundu Yalao v MVIT (1995) N1386
Joe Danga v MVIT (1997) N1665
John Taka v Leo Kipi and The State [1995] PNGLR 254
Kamtai Waine v MVIT [1993] PNGLR 446
Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779
Kepa v Boi Gerek and The State [1991] PNGLR 424
Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364 
Martin Kilte v MVIT (1992) N1085
Meddie Serive v The State [1981] PNGLR 549
MVIT v Reading [1988] PNGLR 236
Pare Umbe and Ngants Kopi v MVIT (1997) N1574
Pare Umbe and Ngants Kopi v MVIT (1998) SC585
Pinzger v Bougainville Copper Ltd [1983] PNGLR 436
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
Pokowan Kandaso v MVIT (1992) N1074
Reading v MVIT [1988] PNGLR 266
Robert Younger Kerr v MVIT [1979] PNGLR 251
Sidi Adevu v MVIT [1994] PNGLR 57
Swingley Oni v MVIT (2004) N2767
The State v Kevin Anis (2003) N2360
The State v Pennias Mokei (No 1) (2004) N2606
The State v Peter Oh Piom Mo [1998] PNGLR 66
Tumunda Toropo v Jack Awabe and The State (2001) N2116
Wallace v MVIT [1991] PNGLR 341

Abbreviations:
The following abbreviations are referred to in the judgment:

MVA – motor vehicle accident
MVIL – Motor Vehicles Insurance Limited
MVIT – Motor Vehicles Insurance Trust

TRIAL

This was an action in which the plaintiff sought damages for personal injuries suffered as a result of a motor vehicle accident.

Counsel:
P Dowa for the plaintiff
S Reid for the defendant

CANNINGS J:

INTRODUCTION

The plaintiff, a man aged 20, seeks damages for injuries he claims he received as a result of a motor vehicle accident. He says that he was playing touch rugby in a public park when a motor vehicle insured by the defendant was driven across the park and collided with him, causing him to become a quadriplegic. The defendant, Motor Vehicles Insurance Ltd (MVIL), denies liability. It argues that the plaintiff has not proven his case. The plaintiff is a quadriplegic but he did not incur that injury in the manner he alleges. There was no motor vehicle accident, the defendant says. Even if there was, the vehicle that hit the plaintiff was not insured. If, however, the court finds that the defendant is liable, the amount of damages should be reduced because of poor primary-trauma care given to the plaintiff by bystanders who transported him to the hospital.

The case is therefore about both liability and quantum of damage.

BACKGROUND

The alleged incident

The alleged incident that resulted in the plaintiff’s injuries is said to have occurred in Mt Hagen late in the afternoon of Monday 21 October 2002. The plaintiff, then aged 17, claims that he was playing touch rugby in the middle of the Pope John Paul II Oval, when a vehicle was driven across the park and collided with him. Pope John Paul II Oval is an area of several hectares of open public space in the centre of Mt Hagen town. It is referred to interchangeably in this judgment as an oval, park or field.

Statement of claim

On 16 June 2003 Dowa Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff. MVIL was the first defendant. Charles Pora, the owner of the vehicle that allegedly struck the plaintiff, was the second defendant. The writ was served on 31 July 2003.

The statement of claim attached to the writ alleged that the second defendant owned the vehicle, a Nissan utility registration No HAE 071, that struck the plaintiff. The vehicle was insured with the defendant by policy No 2254178 covering the period from 30 December 2001 to 30 December 2002. The driver of the vehicle, Patrick Pat, drove without due care and attention, failed to keep a proper lookout, drove at excessive speed, drove on to a public park without due competence and skill and failed to apply the brakes in time to avoid an accident. The plaintiff suffered severe injuries because of the driver’s negligence, including quadriplegia. Prior to the accident the plaintiff was a student attending Hagen Park Secondary School and in good health. He claimed damages for:

•	pain, suffering and loss of amenities;
•	loss of expectation of life;
•	future economic loss;
•	past out of pocket expenses;
•	future medical expenses;
•	future nursing and housekeeping;
•	a special house.

Defence

On 8 August 2003 Melanesian Legal Group of Port Moresby, representing both defendants, filed a defence, denying liability. They did not admit that the incident had taken place; denied that the vehicle was insured; denied that the driver was negligent; and said that if the plaintiff did sustain injuries as alleged, he was guilty of contributory negligence.

Events since September 2003

On 15 September 2003 an amended statement of claim was filed. On 10 October 2003 an amended defence was filed. On 13 October 2003 a reply was filed. None of those processes substantially altered the issues in dispute.

On 3 June 2004 the claim against the second defendant was withdrawn, leaving MVIL as the sole defendant.

Later in June 2004 a trial was commenced in the National Court but it was aborted and the matter set down for trial again.

THE LAW

This is a common law action for negligence brought within the statutory framework of the Motor Vehicles (Third Party Insurance) Act 1974. The plaintiff is required to bring the action against MVIL, as he asserts that the vehicle that struck him was insured with MVIL under that Act.

The key provision is Section 54(1), which states:

Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of—

(a)	a motor vehicle insured under this Act; or
(b)	an uninsured motor vehicle in a public street; or
(c)	a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made against the successor company [defined by Section 1 of the Act as MVIL] and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.

Another relevant provision is Section 49(2)(a), which states:

A third-party insurance cover issued under Subsection (1) … where it is issued in relation to a particular motor vehicle, insures the owner of the motor vehicle and any other person who at any time drives the motor vehicle, whether with or without the authority of the owner, jointly and each of them severally against all liability incurred by the owner and the other person jointly or by either of them severally in respect of the death of or bodily injury to a person caused by, or arising out of the use of, the motor vehicle, to an amount not exceeding—

(i)	K150,000.00 in respect of the death of or bodily injury to any one person in any one case; and

(ii)	K750,000.00 in the case of any one accident or series of accidents arising out of the one event.

THE MAJOR ISSUES

There are three major issues in this case.

First, has the plaintiff met the requirements of Section 54(1) of the Motor Vehicles (Third Party Insurance) Act? In particular, has he proven that the disability he has arose out of the use of a motor vehicle? And if yes, was the motor vehicle insured with MVIL? The questions are framed in this way as the plaintiff’s case is based on Section 54(1)(a) of the Act and the defendant denies liability on two principal grounds: there was no motor vehicle accident and the vehicle was not insured. I suggested during the course of the trial that the broad definition of the term "public street" in Section 1 of the Act might mean that there was sufficient evidence for the court to conclude that the place where the alleged incident took place was, in fact, a public street; in which case the issue of whether the vehicle was insured would not arise, as the action could be based on Section 54(1)(b). The plaintiff, however, elected to continue the case based on Section 54(1)(a). The plaintiff asserts that all the above questions should be answered yes. The defendant asserts that they should all be answered no and that therefore it has no liability.

The second issue is to do with the tort of negligence. If the first issue is decided in the plaintiff’s favour it will be necessary to determine whether the plaintiff has proven that the driver of the vehicle committed the tort of negligence. The plaintiff asserts that the driver was negligent and the defendant does not seriously dispute that.

The third issue is about assessment of damages. If the second issue is decided in the plaintiff’s favour the defendant will be liable to pay damages and the court will need to assess the amount payable, having regard to the limit imposed by Section 49(2)(a).

THE PLAINTIFF’S EVIDENCE 

Outline 

Mr Dowa, for the plaintiff, tendered eight affidavits by consent and called the deponents of seven of them to give oral evidence. They were all cross-examined. The remaining deponent, the deputy principal of the plaintiff’s school, was not required for cross-examination. There was one contentious affidavit, sworn by Patrick Pat, the person said to be the driver of the vehicle that struck the plaintiff. The defendant required him for cross-examination but he could not be produced. Mr Dowa applied for an order under Section 34(1) of the Evidence Act for his evidence to be given by affidavit. Mr Reid, for the defendant objected and I upheld the objection. Therefore the court heard no evidence from the driver.

The affidavits 

Column 1 of the table below gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents.

TABLE 1: SUMMARY OF AFFIDAVITS

Exhibit	Description	Content 	
A	Omben Kumbe, plaintiff, 
28.05.04	He comes from Mt Au, East Kambia, Western Highlands Province – was playing touch football with a group of other players on 21 October 2002 when at about 5.45 pm a Nissan ute hit him causing serious injury – he was not expecting the vehicle to drive straight at them – it appeared the driver lost control and drove straight at them – he and other boys tried to avoid it but he came directly at him and hit him. This affidavit has a number of documents annexed to it which are outlined below.	
B	Dr John McKup MB, BS, DCH, DGO, 
examining doctor, 
29.04.04	States that he is a medical doctor and director of the Family Medical Centre – examined Omben Kumbe on 10 February 2004 and established that he is quadriplegic – a medical report is annexed to his affidavit, the first part of which states that the patient was hit down and run over by a moving vehicle injuring his spine and that he was admitted to Mt Hagen General Hospital, he has a permanent incapacity and he has received appropriate surgical management – the second part of the report states that the plaintiff is completely paralysed in all four limbs and cannot look after himself – no further treatment necessary.	
C	Dr Timothy Tingnee,
MB, BS, M Med, 
treating doctor, 29.04.04	States that the patient was admitted to Mt Hagen General Hospital – provided an initial report on 10.02.03 – further report given on 14.07.03 – the plaintiff is a quadriplegic and will totally depend on his relatives for survival for the rest of his life.	
D	First Constable Robin Yapu, 
Mt Hagen Police, 10.09.03	States that he is a police officer attached to the traffic section of Mt Hagen Police – has been with the traffic section for 11 years and a police officer for 13 years – on Tuesday 22 October 2002 he attended to the scene of a road accident at the Pope Paul II Oval at the heart of Mt Hagen City – the accident took place the previous evening about 5.45 pm – he apprehended the driver and interviewed him, attended to the scene of the accident and made observations, identified and interviewed witnesses, and proceeded to Mt Hagen General Hospital and identified the victim, who was unconscious –then compiled a road accident report and submitted it to his superiors (copy annexed) – recommended that the driver be charged for unlicensed driving and the driver was charged and convicted for that offence – also of the view that the driver was reckless in the manner of driving and suggested laying criminal charges but it was not taken up by the police prosecutors.	
E	Kone Billie, eyewitness, 07.06.04	States that he is a resident of Mt Hagen, originally from Chimbu, and about 20 years old – he was playing touch rugby at the Pope John Paul II Oval about 5.30 pm on Monday 21 October 2002 – the plaintiff was knocked down by a Nissan Navara, double-cab – the driver of the vehicle came from the direction of Warakum towards Mt Hagen City through the oval – the driver drove fast through the field and as he approached the plaintiff he lost control and knocked down the plaintiff – the driver did not stop the vehicle and did not steer the vehicle to avoid hitting the plaintiff – he believes the driver panicked and knocked down the plaintiff and rolled over him again – gave his version of the accident to the traffic officers who attended the accident.	
F	Jackson Mendai, eyewitness, 11.06.04	States that he is a resident of Mt Hagen at the hospital compound, originally from Liagam, Enga Province and about 20 years old – he is a grade eight student at Paragau Primary School – on the afternoon of Monday 21 October 2002 at about 5.30 pm he was amongst other players including the plaintiff playing touch rugby on the Pope John Paul II Oval – he was on the same team as the plaintiff – the plaintiff was knocked down by a Nissan Navara, double-cab, old type, with red stripes – the driver of the Nissan drove from the direction of Warakum towards Mt Hagen City, coming through the middle of the playing field – the driver drove fast through the field and as he approached the plaintiff he lost control and knocked down the plaintiff and dragged him for some metres – the driver did not stop the vehicle and did not steer the vehicle to avoid hitting the plaintiff – he believes the driver panicked and knocked down the plaintiff and rolled him over again as he drove over him – the vehicle was driven very fast and he did not see it coming until the last few seconds – he recalls passing the ball to the plaintiff who was running towards the try line – there was hardly any time left for the plaintiff to avoid the oncoming vehicle – as it was a playing field, none of them expected the vehicle – they immediately took the plaintiff to Mt Hagen General Hospital in the same vehicle – gave his version of the accident to the traffic officers who attended to the accident the next day.	
G	Joe Kupe, plaintiff’s brother, 28.05.04	States that he is the plaintiff’s brother – at the time of the accident the plaintiff was doing grade nine at Hagen Park High School but now cannot continue his education – the family requires two full time attendants to attend to the plaintiff personally to wash him and dress him daily – the witness presently pays these people – he has expended K5,000.00 converting his house for the plaintiff – a special house for the plaintiff will cost a further K40,000.00.	
H	Knox Kiap, 
Deputy Principal, Hagen Park Secondary School, 10.06.04	States that the plaintiff was a student at Hagen Park High School from 2000 to 2002 – in grade nine at the time of the accident – his education was terminated by reason of his disability – annexed to this affidavit was a student record card of the plaintiff.	

Documents annexed to the plaintiff’s affidavit

Annexed to the plaintiff’s affidavit are the following documents:

•	A letter from Dr Tingnee to the Claims Manager, MVIL, dated 10 February 2003. Dr Tingnee states that on 21 October 2002 the plaintiff was involved in a motor vehicle accident and sustained injuries to the neck, back and pelvis. Examination at the accident emergency department showed a severe cervical neck injury. X-rays showed a fracture dislocation of the cervical vertebra. Further examination revealed a right hip injury, confirmed as a posterior dislocation of the right hip. He was admitted to the surgical ward and subsequently taken to the operating theatre where the hip dislocation was reduced and skull tongs were applied for traction. He was then put on traction for six weeks but there has been no improvement and he is now bedridden. He has also developed huge pressure sores on the buttocks and the sacral region. He is undergoing intensive physiotherapy and further appropriate treatment.

•	A letter from Dr Tingnee to the Claims Manager, MVIL, dated 14 July 2003. Dr Tingnee states that this is the final report on the motor vehicle accident victim. When reviewed recently he was much the same with no further improvement. He is still quadriplegic and bedridden. He is cared for by his relatives who feed him, clean his waste and clothe him. The pressure sores are still persistent and the right hip is damaged as a result of avascular necrosis. The disabilities to both the neck and right hip are permanent and will not improve. He will depend on his relatives for survival for the rest of his life. 

•	Mt Hagen General Hospital emergency admission notes, dated 21.10.02, 6.30 pm. The reason for admission is shown as cervical spine injury and right hip dislocation. The notes state:

MVA this pm
Sustained injury to neck, back and pelvis. 
Unable to feel or move body from shoulders downward
Loss of voiding ability
Painful cervical spine area

He was at the rugby field doing training when a vehicle came from behind at moderate speed and hit him from the back. Fell down forward suddenly and sustained the above injuries. Was brought into the hospital by a non medical team – poor primary trauma care!

First such admission
Smoker
No allergies
No previous surgery

Young male lying supine …

Diagnosis:

1	fracture C5/C6 spine
2	right hip dislocation 
3	hip/pelvis
4	Neurogenic shock

•	There are further handwritten notes, dated 21.10.02, headed "surgical review", containing various instructions for urgent action.

•	A collection of other notes, charts and daily checklists, mostly handwritten, relating to the plaintiff’s treatment. These show various dates in October, November and December 2002.

•	Photographs of the plaintiff lying in traction and photographs of pressure sores and photographs of the plaintiff in a wheelchair.

Glossary of medical terms

I have prepared a glossary of the medical terms used in the evidence and the judgement sourced mainly from The New Oxford Dictionary of English, Oxford University Press, 1998. The meaning given to the terms represents the court’s understanding of various terms used in the evidence.

allergy – a damaging immune response by the body to a substance
avascular necrosis – death of tissues due to lack of blood supply
back – the rear surface of the body from the shoulders to the hips
backbone – the series of vertebrae extending from the skull to the pelvis, enclosing the spinal cord; also known as the spine
buttocks – the two round fleshy parts of the body that form the bottom
C5/C6 spine – the fifth and sixth (of seven) cervical vertebrae
central nervous system – the complex of nerve tissues that controls the activities of the body; comprising the brain and spinal cord
cerebral – of or relating to the cerebrum of the brain 
cerebrum – the principal part of the brain
cervical spine injury – an injury to the part of the spine between the skull and the chest, comprising seven vertebrae
cervical vertebra – an individual bone in the cervical spine
circulatory – of or relating to the circulation of blood
conscious – awake, aware of and responding to one’s surroundings 
dislocation – disturbance of normal position
femur – the bone of the thigh, articulating at the hip and the knee
hip – a projection of the pelvis and upper thigh bone on each side of the body
hip joint – the part of the pelvis which articulates with the femur
incapacity – physical or mental inability to do something
limbs – the arms and legs
neck – the part of the body connecting the head to the rest of the body
necrosis – death of most or all of the cells in an organ or tissue due to disease, injury or failure of the blood supply
neurogenic shock – low blood pressure caused by profound disturbance to the central nervous system
operating theatre – a room in a hospital in which surgical operations are performed
paralyse – cause a part of the body to become partly or wholly incapable of movement
paralysis – loss of the ability to move a part of the body
paraplegia – paralysis of the legs and lower body, typically caused by spinal injury or disease
paraplegic – a person who has paraplegia
patient – a person receiving medical treatment
pelvis – the large bony structure near the base of the spine to which are attached the legs
physiotherapy – the treatment of disease, injury or deformity by physical methods such as massage, heat treatment and exercise rather than by drugs or surgery
posterior dislocation – when the head of the femur moves out of the hip joint
pressure sores – chronic ulcers (areas of skin and tissue loss) caused by immobility
primary trauma care – initial care given to an injured person, including stabilising of neck and maintenance of the airway
quadriplegia – paralysis of all limbs
quadriplegic – a person who has quadriplegia
sacral region – the back part of the pelvis 
sequel – a result of 
skeletal traction – stabilisation of a fracture or dislocation by traction applied through bones
skull – the bone framework of the head
skull tongs – strong metal callipers screwed into the skull to which weights are applied, to maintain normal alignment of the neck
spinal cord – the cylindrical bundle of nerve fibres and associated tissue which is enclosed in the spine connecting nearly all parts of the body to the brain, with which it forms the central nervous system
spine – the backbone
supine – lying face upwards
surgeon – a medical practitioner who practises surgery
surgery – the branch of medicine concerned with treatment of injuries or disorders of the body by incision or manipulation, especially with instruments
traction – the application of a sustained pull on a limb or muscle, to maintain its position or correct a deformity
unconscious – not awake, aware of and responding to one’s surroundings 
vertebra – any of the individual small bones forming the backbone, having several projections for articulation and muscle attachment and a hole through which the spinal cord passes
vertebrae – plural of vertebra
voiding ability – the ability to expel urine and faeces 
waste – urine and faeces
x-rays – a photographic or digital image of the internal composition of parts of the body

Oral evidence

The plaintiff Omben Kumbe adopted his affidavit in examination in chief. He stated that he was playing touch football and during the game the vehicle came and bumped him. Just before he was hit, he had the ball and was running across the field. The vehicle was travelling a bit fast and hit him on the left shoulder. The vehicle ran over him. He grew up in the area of the playing field and knew that vehicles often travel along the field. When the incident happened he was busy playing and was thinking of taking the ball to the goal area. Asked what difficulties he now has the plaintiff stated:

I am unable to do anything in my lifetime because I am now using a wheelchair. I am expecting that … I would be in this position for the rest of my life. Since I sustained those injuries, there is no change in my life or improvement.

In cross-examination he stated the vehicle was coming from the direction of Warakum [a locality in Mt Hagen at one end of the park] and hit him on his left shoulder. He was running across the field, across the front of the car. He was playing rugby with six or seven boys. There were some other people in the area at the time. The vehicle hit him hard and his shoulder was injured. He did not know the driver prior to the incident. He now knows him but has had no discussions with him and nothing has been agreed with him about what occurred.

In re-examination the plaintiff stated he did not hit the vehicle, but the vehicle hit him.

Dr John McKup adopted his affidavit and was not asked any substantive questions in examination in chief.

In cross-examination he said that his report stated that the plaintiff was hit by a vehicle because the plaintiff or his family had told him that. He confirmed that there is no further treatment that the plaintiff could have to remedy his current situation. As to the way in which the plaintiff was transported from the scene of the incident to the hospital, there is a possibility that it would have contributed to the extent of the plaintiff’s injuries.

Dr Timmy Tingnee is a consultant surgeon at Mt Hagen General Hospital. He adopted his affidavit and was not asked any substantive questions in examination in chief.

In cross-examination he confirmed that he was the doctor who treated the plaintiff when he was first admitted. He could not recall whether there was any injury to the plaintiff’s left shoulder. He was asked whether anything could be done for the plaintiff in the medical context. Dr Tingnee replied: 

In the best, I would say that throughout the world nothing further can be done with this particular kind of injury which is a permanent injury and as such will handicap him for life.

He was asked whether the injuries were caused by a motor vehicle accident and replied:

In my opinion as a professional surgeon, I would like to make it known that these particular injuries no doubt have been inflicted as a result of a motor vehicle accident other than any other type of injuries. [sic] Particularly the fact that he sustained a life-threatening cervical spine injury. And secondly there was a posterior dislocation of the right hip which is consistent with somebody having sustained an injury as a result of being hit by a motor vehicle rather than some other form of injuries.

He was asked whether he would conclude that the vehicle hit the plaintiff on his right hip. He replied that he could not say that. It depends on the impact.

It was put to Dr Tingnee that the plaintiff may have sustained the injuries from other causes such as falling from a tree or a rugby match. He replied:

It is unusual to have a neck injury as well as a posterior dislocation which is unlikely from any form of injury apart from a motor vehicle accident.

First Constable Robin Yapu is a police officer attached to the traffic section of Mt Hagen police station. He investigated the incident in which the plaintiff was allegedly injured. He gave oral evidence in the trial on two separate occasions. On the first day his evidence was mainly about his investigation of the circumstances in which the plaintiff was injured. On the second day, Mr Dowa, during the course of replying to Mr Reid’s submissions, applied to have him recalled, when it became clear that a crucial issue of fact was whether the motor vehicle that allegedly struck the plaintiff was insured. Mr Reid objected. I overruled the objection and upheld Mr Dowa’s application but ordered that costs of that day’s proceedings and any proceedings of the court held as a consequence of making that ruling be awarded against the plaintiff. First Constable Yapu returned to the witness box on the third and last day of the trial and his evidence on that occasion centred on the issue of whether the vehicle was insured.

In examination in chief on the first day of the trial First Constable Yapu adopted his affidavit.

In cross-examination he stated that he did not attend the scene on the day of the accident. He only became involved the next day. He first saw the driver at the police cells that morning. The driver had feared for his safety and gone to the police station with the vehicle on the evening of the accident. He was not injured or assaulted in any way. The driver did not tell him about any reaction by the crowd to what occurred. The driver was charged with and convicted of being an unlicensed driver. First Constable Yapu recommended that the driver be charged over the accident itself but the prosecutors decided not to lay charges. He interviewed witnesses, including playmates of the victim, for the purposes of preparing a road accident report. This was the first time he had known of an accident of this nature occurring on Pope John Paul II Oval. There are exits at both ends of the park and there were always vehicles travelling in and out of the park, though there is no public road going through the park. Since the accident, one end of the park has been closed off to vehicles. But they still come on to the park from the nearby traffic office.

He was asked whether he could tell if any damage to the vehicle was caused by the accident. He replied yes. He inspected the vehicle and observed some dents on the front and on the bonnet of the vehicle. However Mr Reid pointed out that his report said that there was "no damage". Asked about it further, he stated that there were some minor dents on the tip of the bonnet and on the grille. The vehicle had no broken windows or anything like that. He did not spot any blood on the vehicle.

He went to the scene of the accident and saw tyre marks on the grass where the vehicle’s brakes had been applied. The accident occurred off to the side of the track on the field. The vehicle could have been travelling at about 50 kilometres per hour along the track. He asked the driver some questions about his driving experience. The driver said he was still learning to drive. He also interviewed the owner of the vehicle, who was not the driver. The owner was at Premier’s Hill, at the back of the park, chewing buai, when the driver came and got his vehicle and drove through the park without his consent. The owner did not wish to press charges against the driver.

In re-examination First Constable Yapu said that the driver was not charged in relation the accident. He was of the view that the driver should have been charged with dangerous driving causing grievous bodily harm, but the prosecutors told him that he could not lay a charge as the accident had not occurred on a public street.

When he was recalled on the third and last day of the trial First Constable Yapu again gave evidence in chief. He stated that he had indicated in his road accident report that the vehicle was insured. He got that information from the original registration and insurance papers given to him by the owner, Charles Pora, on 22 October 2002, the day after the accident. The insurance policy was No 2254178. The insurance and registration were current. The vehicle was a Nissan utility. It had been locked up at Mt Hagen police station. He went there, took the vehicle to the traffic office and physically checked it. After taking the particulars required for his report he returned the papers to the owner. It took about three days to do his report. The safety sticker on the windscreen was current. If the vehicle was not insured the driver would have been charged with driving an unregistered, uninsured and unroadworthy vehicle.

In cross-examination First Constable Yapu stated that a roadworthy certificate for a vehicle is issued by an authorised inspection station. Registration and insurance are issued by the registry. He conceded that his affidavit did not state that he inspected the vehicle or that he interviewed the owner or that he inspected the registration and insurance documents. He forgot to put those things in the affidavit. The owner gave him the papers on Tuesday 22 October 2002. He did not write the details from the papers on another piece of paper or notebook but entered them straight into the report. He circled the part of the report that stated ‘no damage’ to the vehicle. Asked to explain the difference between his report and his earlier oral evidence that there was damage to the vehicle, he stated that the vehicle was not seriously damaged. There were minor dents so he put ‘no damage’. There was no multiple damage. His evidence was there were minor dents, he did not mention damage. He does not think he made a mistake in his report. The vehicle was registered in Western Highlands Province and the third party insurance was issued in the National Capital District. The expiry date for both was 30 December 2002. It was put to him that he had made a transcription error regarding the details of the insurance policy. He denied getting the number wrong. He would not know if the papers given to him were forged. But the papers produced to him were originals and he based his report on them.

Kone Billie was the first of two persons other than the plaintiff said to be an eyewitness to the alleged motor vehicle accident. He adopted his affidavit in examination in chief.

In cross-examination he stated that he saw the vehicle hit the left side of the plaintiff’s body. Just before the vehicle hit him the plaintiff was running with the ball. The vehicle came from Warakum. The plaintiff was running across the hill and the vehicle was travelling uphill. When the vehicle hit him the plaintiff went up and then he came down and went under the vehicle. The witness checked on the plaintiff who was still under the vehicle. He and the other boys pulled him out from under the vehicle. They then put him on the same vehicle and took him to the hospital. The plaintiff was unconscious. There was no mattress or anything like that on the vehicle. They just put him on the vehicle. The same driver drove the vehicle to the hospital. The witness was confused and not angry with the driver. He went on the vehicle to the hospital. He looked at the vehicle but did not see whether it was damaged. He later saw the driver at the police station. He was still not angry with the driver. Nobody else argued with the driver. The witness lives in the hospital compound with the plaintiff and plays for the rugby team associated with the hospital.

Jackson Mendai was the second person other than the plaintiff said to be an eyewitness to the alleged motor vehicle accident. He adopted his affidavit in examination in chief.

In cross-examination he stated that he saw a vehicle come through the field and hit the left side of the plaintiff’s body. The vehicle was going fast. Just before it hit him the plaintiff was running with the ball. It was common for vehicles to drive through the field. When the vehicle hit the plaintiff he went under the vehicle and it rolled him for some distance. The plaintiff was under the vehicle, not moving, like a dead person. They did not do anything to the driver. They got the plaintiff out and put him on the same vehicle and took him away. He first thought the driver had killed the plaintiff but then saw his heart was still beating. He was not angry with the driver. It was an accident. If the plaintiff had been left there he could have died there. At the hospital they took the vehicle keys and rang the police, who came and took the driver to the station. The witness looked at the vehicle but did not see any damage.

The final witness was the plaintiff’s brother, Joe Kupe. He adopted his affidavit in examination in chief.

In cross-examination he stated that he works for the hospital as supervisor of revenue collection, looking after hospital fees. He lives in the hospital compound. He knows the two doctors who gave evidence. He knows the other witnesses who live in the hospital compound. He was not present at the scene of the incident. He was in Minj. He was told about the incident the next day. He is the person in the plaintiff’s family who looks after money matters. If the insurance company pays the money he will not misappropriate it. It is money for the plaintiff. He will manage it for the rest of the plaintiff’s life. The plaintiff currently lives with his family in the hospital compound. If the insurance money is paid, he would make a house for the plaintiff. Two full time guardians would take care of the plaintiff. He has already spent a lot of money taking care of him. It would be better to pay the money in a lump sum than to pay it periodically.

The plaintiff’s case was closed upon the completion of Joe Kupe’s evidence. It was, however, later reopened when I upheld the application for First Constable Yapu to be recalled.

INSPECTION OF THE SCENE

I inspected the scene of the alleged incident on the afternoon of the first day of the trial, 14 October 2004. Accompanying me were the lawyers, court staff and the two persons claiming to be eyewitnesses, Kone Billie and Jackson Mendai.

The witnesses took us to the site roughly in the middle of the oval and then I asked Mr Dowa to lead the inspection. He asked the two witnesses to describe where the alleged incident happened and where the motor vehicle had struck the plaintiff. They said that the vehicle came from the Premier’s Hill or Warakum end of the park and headed in the direction of the ‘Renbo’ or town end of the park. The plaintiff was carrying the ball and running across the park in what appeared to be an east/west direction, at right angles roughly to the direction in which they indicated the vehicle was travelling. They indicated that the plaintiff had been struck at a particular point, which was within 10 metres of goalposts that evidently had been erected since the incident, which is next to a large tall tree in the middle of the park. After colliding with the plaintiff the vehicle moved about 20 metres towards the western end of the park before stopping. They were playing touch football. The try lines looked to be, approximately 100 metres apart, a standard rugby field length, one at the eastern end and one at the western end, roughly marked by trees.

Mr Reid asked the witnesses in what direction the vehicle had taken the plaintiff to the hospital. They indicated that it proceeded in the direction of town.

There were no areas of contention raised at the site. It was a general inspection to help the court get an idea of the layout of the park and the location of various landmarks mentioned in the evidence eg the Renbo end and the Premier’s Hill end of the park.

I have prepared a sketch plan of the site as follows:

N
Town Renbo end

[Ed: plan missing from original]

THE DEFENDANT’S EVIDENCE

The defendant offered no evidence.

PLAINTIFF’S SUBMISSIONS

Circumstances of accident

On the issue of whether the claim met the requirements of the Motor Vehicles (Third Party Insurance) Act, Mr Dowa submitted that the evidence should leave the court in no doubt as to the circumstances in which the motor vehicle accident occurred. The plaintiff’s evidence is supported by the eyewitness accounts of Kone Billie and Jackson Mendai. Their evidence was consistent with the plaintiff’s. They saw him being hit and dragged for some distance. He was hit on the left side and the driver lost control. They took the plaintiff on the same vehicle to the hospital and reported the matter to the police. The police came and took the vehicle and the driver to the police station. They locked up the vehicle and the driver at the police station. That was about between 6.30 to 7.00 pm. The next morning First Constable Yapu conducted his investigation, obtained details of the vehicle and the driver and interviewed the witnesses. After obtaining the details he compiled a police report and charged the driver for driving without a licence. He considered charging him with dangerous driving causing grievous bodily harm but that did not happen as police prosecutors considered that the accident did not occur on a public road.

The evidence of the two doctors supported the proposition that the plaintiff was injured in a motor vehicle accident. Dr McKup gave evidence that the plaintiff is a quadriplegic. Dr Timmy Tingnee is a very senior medical officer at Mt Hagen General Hospital. He was the attending doctor. He was asked whether the injury was caused by any other cause and he said without a doubt that the plaintiff was the victim of a motor vehicle accident. The clinical notes confirm that he was hit by a motor vehicle on that day.

As to the defendant’s assertion that the accident was a concoction, Mr Dowa submitted that the doctors who gave evidence could not lower their professional standards and become involved in a fraudulent claim. There is no inconsistency in the evidence. The medical evidence and the evidence as to the way in which the injuries were sustained are very consistent. The fact that the plaintiff was rolled over several times under a moving vehicle explains why he sustained very serious injuries. As to the suggestion that the vehicle should have been damaged, the plaintiff is a human being against a motor vehicle. He would not be expected to damage a motor vehicle.

The witnesses who testified explained why they did not react against the driver. They had to get the plaintiff to the hospital quickly.

Insurance

As to whether the vehicle was insured, Mr Dowa relied on the evidence of First Constable Yapu and submitted that it was proven beyond doubt that the vehicle was insured at the relevant time. Mr Dowa acknowledged that there were cases such as Imambu Alo v MVIT [1992] PNGLR 487, National Court, Brown J, which suggested that a plaintiff should ideally produce a certificate of insurance to discharge the onus of showing that the defendant is the authorised third party insurer. However, that case can be distinguished on its facts as the driver and the police officer who prepared the accident report gave conflicting evidence about the insurance certificate. The driver said he lost it while the police officer said he got the details from the driver. In the present case there is no conflicting evidence. Mr Dowa also referred to Kamtai Waine v MVIT [1993] PNGLR 446, National Court, Woods J, as an example of a case where the court was satisfied by the evidence of a police witness of the existence of a third party insurance policy.

Negligence

Mr Dowa submitted that the evidence clearly showed that the driver committed the tort of negligence. The driver owed the plaintiff a duty of care, which he breached. His breach of duty caused the plaintiff’s injuries. He should not have driven onto the park in the first place. He was an unlicensed and incompetent driver. He was driving too fast, panicked and failed to apply the brakes properly. The vehicle hit the plaintiff. It was not a case of the plaintiff running into the vehicle.

Damages

Mr Dowa submitted that the total award should be assessed as K708,156.00, comprising general damages (K350,000.00), future economic loss (K208,000.00), special damages (K14,156.00), special house (K40,000.00), future medical and related expenses (K48,000.00) and nursing expenses (K48,000.00). However, he acknowledged that the statutory limit of damages is K150,000.00, exclusive of interest.

DEFENDANT’S SUBMISSIONS

The two major planks of the defendant’s submission were that the plaintiff failed to bring cogent evidence that a motor vehicle accident occurred in the manner alleged and that, even if there were such an accident, the plaintiff did not prove that the vehicle was insured.

Circumstances of accident

Mr Reid submitted that the plaintiff’s version of events was that the track on which the vehicle was driven was roughly defined. It was through grass and fairly bumpy. It was not a good driving surface. While the plaintiff was running in an east/west direction across the field and towards the try line he took the ball and was running across the vehicle’s path when it hit his left shoulder. After the initial impact the vehicle veered to the left in a westerly direction and dragged him under the vehicle for 20 metres across a more defined track. That version of events raises so many inconsistencies as to make it improbable and therefore not believable.

Firstly, for the vehicle to do the damage it did to the plaintiff – breaking his spine and dislocating his hip – it would have had to be travelling at a considerable speed, highway speed, around 50 kilometres an hour. However it is improbable that anybody would travel at 50 kilometres on that track. It may not be impossible but it is improbable.

The second inconsistency relates to the impact of the vehicle on the plaintiff. The driver was said to be travelling uphill on a fairly straight track, across the grass. Immediately following impact, instead of stopping, the vehicle is said to have veered hard left for a further 20 metres with the plaintiff trapped underneath. However, if the vehicle hit the plaintiff while travelling at speed in a south/north direction, the plaintiff would have been knocked in a south/north direction and not knocked in the westerly direction that the car veered. He would have been knocked directly forward. If the car had travelled directly forward it may have hit him again. But the evidence was that the car veered to the left in a westerly direction. If the car hit the plaintiff, then veered left, the plaintiff could not have been caught underneath the vehicle as was the evidence. If the vehicle did drag the plaintiff under the vehicle across the more worn track, any person underneath would have been thrown out across in that track and not gone 10 metres further underneath the vehicle.

Thirdly, the plaintiff and his team-mates all said that the plaintiff was struck on his left shoulder. That would make sense if his story was true. If he was hit on the right side then he would have been running in the opposite direction or the vehicle would have been travelling in the opposite direction. However the only injuries reported at the time of his admission were his broken spine, his neck and injuries to his right hip and pelvis. There was no evidence of any injury to his left side. Dr Tingnee was asked if he could explain that. He could not. The medical evidence therefore does not support the story put forward by the plaintiff.

Fourthly, there is no evidence of damage to the vehicle. In his accident report First Constable Yapu made no mention of any damage and circled the part of the form that says "no damage". But in giving evidence he said that there were some dents to the bonnet and the grille of the vehicle. If a person is struck by sufficient force to dislocate and fracture their hip and pelvis and break their neck, the damage to the vehicle would be significant, not minor. If a person is dragged under the vehicle for 20 metres, as has been alleged, there would have been some evidence of damage to the undercarriage of the vehicle, not the top of the vehicle as the police witness said. And the plaintiff would have sustained severe grass burns, being dragged for 20 metres across grass underneath the vehicle. Yet there is no medical evidence of that type of injury.

Fifthly it is incredible that there was no reaction or retaliation against the driver. As to the claim that the driver and the vehicle were locked in the cells overnight, there was no documentary evidence. The police witness was not the police officer involved, so his evidence is hearsay. The total lack of crowd reaction in a public place at 5.30 in the afternoon when everybody is going home from work, to a vehicle running over a boy playing rugby in the middle of a playing field in the Highlands is so incredible as to be ridiculous. Somebody would have dragged the driver out and accosted him or asked him what he was doing or taken action against the vehicle.

Sixthly, it is strange that in a case of negligent driving causing very serious injury that the police have not proceeded with any charge other than unlicensed driving. It is likely that the police prosecutors did not proceed with a more serious charge because they did not believe the accident happened.

Furthermore if the plaintiff was injured as he has said, there could have been 250 witnesses, not two. If any incident occurs anywhere on the streets in Mt Hagen, it will attract a crowd of two or three thousand people. If a boy was run over playing touch rugby in the middle of Pope John Paul II Oval at 5.30 in the afternoon on a weekday, there would have been thousands of people who saw it. Yet the only witnesses that have come forward are the plaintiff and his two friends.

Mr Reid stressed that it is not up to the defendant to prove to the court what happened. The court must be satisfied on the balance of probabilities that the plaintiff has proven his case. The many inconsistencies in the evidence point to the fact that it is concocted and the plaintiff’s injuries were suffered in some other manner. The plaintiff lives with his two witness friends in the hospital compound. The plaintiff’s brother lives there too and works for the hospital. The two doctors are known to the family. It is likely that they all concocted a story about the injuries which have been caused by an entirely different event, not connected with a motor vehicle. The plaintiff’s injuries are consistent with a fall from a tree. There is a motive for concocting this story. The plaintiff is a quadriplegic. His life will be very difficult. In Papua New Guinea, there is no form of compensation or insurance for a person injured to such an extent other than under the Motor Vehicles (Third Party Insurance) Act. There would be community sympathy for a person seeking to make such a claim. Fraudulent claims of this nature are not uncommon in Papua New Guinea as there is no other accessible form of social security, pension, insurance or medical cover.

Insurance

Mr Reid submitted that under Section 49 of the Motor Vehicles (Third Party Insurance) Act a certificate must be issued when insurance is obtained. The courts have taken a strict approach, insisting on a certificate as proof of insurance. He referred to three National Court decisions: Imambu Alo v MVIT [1992] PNGLR 487, Brown J; Pare Umbe and Ngants Kopi v MVIT (1997) N1574, Injia J; and Joe Danga v MVIT (1997) N1665, Sawong J. In each case an action for damages arising from a motor vehicle accident was dismissed as the plaintiff failed to prove that the vehicle was insured.

It was open to the plaintiff’s lawyer to invoke the discovery process under the National Court Rules to prove insurance. Another option was to summon the owner of the vehicle to give evidence or produce the insurance certificate. None of that was done. To now rely upon the police witness is to rely on hearsay evidence, which is unreliable. It is quite possible that First Constable Yapu made a transcription error in preparing his report, which took several days to complete. Even if the court is satisfied that the vehicle was insured at some time, there is insufficient evidence that insurance was in place at the time of the accident. The report shows that the third party insurance was issued in Port Moresby, in the National Capital District, and that registration was renewed in Mt Hagen, Western Highlands Province, on the same day. That is not only improbable but impossible.

Negligence

Mr Reid conceded that if the court found the accident in fact occurred in the manner alleged, negligence would have been established.

Damages

If the court decides to make an assessment of damages it should consider the poor primary trauma care that contributed to the plaintiff’s injuries. The evidence was that his team-mates dragged him out from under the vehicle, then loaded him onto the tray of the utility, which was then driven across a bumpy, uneven surface to the hospital. The hospital admission notes record in writing that there was poor primary trauma care. The court should discount 25% from the amount of damages to account for this exacerbation of the plaintiff’s injuries, which cannot be the defendant’s responsibility.

As to the amount of damages Mr Reid submitted that the total should be K81,500.00, comprising general damages (K30,000.00); special damages, pre-trial (K12,000.00); special damages, post-trial (K20,000.00); loss of income (K40,000.00); wheelchairs etc (K8,000.00); less the discount for poor primary trauma care (incorrectly calculated as K28,500.00). Interest at 8% and costs would be extra. If any damages are awarded they should be paid periodically, rather than in a lump sum, as the National Court (Woods J) ordered in John Taka v Leo Kapi and The State [1995] PNGLR 254.

However Mr Reid reiterated that the defendant’s primary submission was that the plaintiff had not proven the key elements of his claim: that he was injured in a motor vehicle accident and that the vehicle was insured. It may be that the plaintiff will be able to pursue his loss by other means, eg he might sue the local government authorities for negligently allowing a vehicle on a playing field or sue his lawyer for the way in which the case has been conducted.

FINDINGS OF FACT

Undisputed facts

The plaintiff is a quadriplegic. He was admitted to Mt Hagen General Hospital in October 2002 exhibiting signs of a traumatic, life threatening event that caused that condition. He was treated at the hospital for several months. His quadriplegia is a permanent disability. No surgery is available that can reverse that condition. He has a reduced life expectancy. He cannot work. Since being discharged from the hospital he has been cared for by his family.

Disputed facts

There are two fundamental areas of dispute:

•	where, when and how was the plaintiff injured?

•	if he was injured in the manner alleged, was the vehicle that hit him insured by the defendant?

WHERE, WHEN AND HOW WAS THE PLAINTIFF INJURED?

I will start by making an assessment of the overall standard of the documentary and oral evidence.

Documentary evidence

As to documentary evidence the most relevant exhibits are the records of the plaintiff’s admission and treatment at the hospital, the medical reports and the police accident report.

The hospital records appear detailed and comprehensive. They are mostly handwritten and appear to have been prepared by a number of different people over a period of several months. These records were annexed to the plaintiff’s affidavit. Their authenticity was not questioned by the defendant’s lawyer. It seems unusual for them to have been tendered through the plaintiff rather than through an officer of the hospital. But no issue was taken with that. The admission notes show that the plaintiff was admitted at 6.30 pm on 21 October 2002. They state "MVA this pm". From that I infer that the medical staff were informed that the patient was involved in a motor vehicle accident that afternoon. There are several other references to "MVA" in the hospital records. On the face of it, I regard the hospital records as genuine – not fabricated – evidence, which generally support the plaintiff’s version of events. In particular they support other evidence as to the date and time of the incident that caused the injury.

As to the medical reports Dr McKup’s report is of little relevance to the issues of fact that are in dispute. It was prepared following an examination of the plaintiff more than a year after the incident. The defendant does not dispute the nature, extent or permanence of the plaintiff’s injuries. Dr Tingnee’s reports are much more relevant as they were addressed to the defendant and based on the presumption that the plaintiff’s injuries were due to a motor vehicle accident. Dr Tingnee treated the plaintiff when he was admitted to the hospital. His reports, significantly, do not question the version of events given to him upon admission. I regard Dr Tingnee’s reports as genuine and consistent with the proposition that the plaintiff was injured in the manner alleged.

The police accident report is another important piece of documentary evidence. On the face of it, it is evidence that a police investigation into an accident involving the plaintiff took place in the days immediately after 21 October 2002.

Oral evidence

I now consider the credibility of the oral evidence. There were two eyewitnesses in addition to the plaintiff. Their evidence was generally consistent. The plaintiff was running with the ball in an east/west direction. The vehicle came from the southern, Warakum, end of the park. It was heading towards the northern, town end. It collided with the plaintiff who went under the vehicle for 10 or 20 metres.

Of the two doctors, Dr Tingnee’s oral evidence was, as with his medical reports, more relevant than Dr McKup’s. Dr Tingnee testified emphatically that the plaintiff’s injuries were caused by a motor vehicle accident.

First Constable Yapu’s oral evidence was also significant, as he elaborated on the circumstances in which his investigation and report were done.

The other person who gave oral evidence was the plaintiff’s brother, Joe Kupe. His evidence was confined to the plaintiff’s current circumstances and what is entailed in caring for him.

On the face of it the oral testimony of all the witnesses was credible. Their demeanour was not of persons attempting to cover or make up facts. Though it is central to the defendant’s defence that the plaintiff’s version of events was a concoction, it was not put to any of the witnesses that they were lying. I will address the significance of that later.

Were it not for the strong and carefully structured submissions of Mr Reid, highlighting the apparent inconsistencies in the evidence produced by the plaintiff, it would not have been difficult, having considered the documentary and oral evidence adduced, for the court to conclude that the onus of proving where, when and how the plaintiff was injured was discharged to the required standard. Mr Reid’s submissions therefore require careful consideration.

Assessment of purported inconsistencies in evidence

First, the speed of the vehicle. The defendant contends that to inflict the sort of injuries suffered by the plaintiff, the vehicle would have had to be travelling at highway speed, about 50 kilometres per hour, and that was highly improbable, given the condition of the track over which the vehicle was said to have travelled. The logic of this argument is clear but the evidence in support of it is not. There is no evidence to show that a Nissan utility would have to be driven at highway speed or 50 kilometres per hour to inflict this sort of injury on a person. I do not regard it as a matter of common sense or something so obvious that the court does not need some evidence in support of it. Quite the contrary, it is reasonably to be expected that a utility vehicle driven at, say, 10 or 20 kilometres per hour would cause considerable injuries when driven into a person who was running with a football on a playing field.

Secondly, the impact of the vehicle on the plaintiff. The defendant asserted that if the vehicle, heading south/north, had hit the plaintiff, who was running east/west, as claimed, the plaintiff would have been knocked forward out of the way of the vehicle, as the evidence was that after it hit him the vehicle veered sharply to the left (ie to the west). This is another logical argument but, again, the evidence in support of it is weak. The evidence was not that the vehicle veered hard left immediately after hitting the plaintiff. It may be that the vehicle continued on for a short distance after impact, sufficient to knock down and go over the plaintiff, before veering left. I do not consider the version of events given by the eyewitnesses to be of something that was physically impossible or improbable. Their evidence was that the driver appeared to panic, so it is likely that he steered the vehicle haphazardly, which would make it conceivable that the vehicle drove over the plaintiff and rolled him along the ground underneath it.

The third inconsistency pointed to by the defendant is the lack of reported injuries to the left side of the plaintiff’s body. The plaintiff and the two eyewitnesses all testified that he was hit on the left shoulder. How then could it be explained that his reported injuries, other than the broken spine and neck, were to the right hip and pelvis? Dr Tingnee’s evidence was significant on this point, as Mr Reid asked him if he could conclude that the vehicle hit the plaintiff on the right hip. He replied that he could not say that. "It depends on the impact". His evidence did not exclude the possibility of the right hip injury being caused by impact on the left shoulder. The submission that Dr Tingnee ‘could not explain’ how a left-sided impact could give rise to a right hip injury is, with respect, disingenuous. That is not what Dr Tingnee said. I can conceive it to be quite possible for a person to be hit on their left side by a moving vehicle and suffer severe dislocation on the opposite side of their body, the latter part of the body being the place where the momentum of the heavy, moving object was being transferred.

The defendant’s fourth line of attack was on the lack of damage to the vehicle. Mr Reid rightly pointed here to the apparent inconsistencies between First Constable Yapu’s accident report – where he circled the bit "no damage" – and his oral evidence. When asked whether he could tell if any damage to the vehicle was caused by the accident, First Constable Yapu initially said, yes, he inspected the vehicle and observed some dents on the front and on the bonnet. He later qualified that by saying that the vehicle was not seriously damaged. There were only minor dents so he put "no damage". I consider that this was the closest Mr Reid came to undermining the credibility of this witness’s evidence. He came close but he did not succeed. I remained impressed with First Constable Yapu’s testimony. The evidence is that there was no significant damage to the vehicle caused by the collision with the plaintiff. And that, of course, is Mr Reid’s point. If the plaintiff was really hit with sufficient force to break his spine, neck, pelvis and hip, the damage to the vehicle would have been significant, not minor. I consider, however, that the opposite is the case. It is clear who comes out second-best in a right-angled collision between a moving vehicle and a moving person. The latter. I consider it conceivable that a moving vehicle would be able to inflict severe injuries on a person of the type exhibited by the plaintiff, without the vehicle itself being damaged.

The fifth reason the plaintiff’s version of events was said to lack credibility was the lack of crowd reaction. How could it be that nobody attacked the driver after he had run over an innocent football player? Is this possible in the Highlands of Papua New Guinea? Mr Reid invites the court to say that it is not possible, or at least so improbable as to be incredible and therefore ridiculous. I consider that this argument must suffer the same fate as the others: sound in logic, but lacking evidence, and therefore unsustainable. In any event, the two eyewitnesses were cross-examined on this issue. They had an explanation. They saw that it was an accident. They were not angry with the driver. Their immediate concern was to get the plaintiff to the hospital. They first thought he was dead but then noticed he was breathing. As to why other bystanders did not retaliate against the driver or the vehicle, I consider that it is conceivable that they too summed up the situation and decided that the best thing to do was to allow the driver to get into the vehicle and take the plaintiff to the hospital. I do not consider that that was so incredible a scenario that it should cause me to disbelieve the evidence of the two eyewitnesses whose evidence, as I indicated, in other respects, was credible.

The sixth inconsistency raised by the defendant was the failure by the police to lay charges against the driver for, say, negligent driving. First Constable Yapu stated that if it were left to him, charges would have been laid but the police prosecutions branch took the view that the incident did not occur on a public street so no further action was taken. I consider that this was an adequate explanation. I do not draw the inference, as contended for by Mr Reid, that the failure to lay serious charges against the driver means that the accident did not happen.

The seventh inconsistency relates to the shortage of witnesses. Why was the plaintiff only able to produce two eyewitnesses – who happened to be his friends – when the incident was surely witnessed by many other people? This is a valid query but in some respects it is an argument that cuts both ways. It might have been expected that all of the plaintiff’s team mates would have sworn affidavits and been produced as oral witnesses. And it may have been beneficial to the court to have some more independent witnesses produced. By the same token it would seem to have been a rather easy task – if the incident did not happen – for the defendant to have produced witnesses to testify that they were at the park on that day at that time and saw nothing happen or to have summoned the records of the Mt Hagen Police, eg the daily occurrence book, to show that there was no record of the incident. Perhaps there were strategic reasons for the plaintiff’s lawyer relying on only two eyewitnesses. Perhaps it was thought that to introduce too many witnesses would open up the risk of inconsistent evidence being put before the court. All this is speculation of course and that is the reason I am not prepared to draw the inference contended for by the defendant. The fact is that there were two eyewitnesses, in addition to the plaintiff, who testified about what happened. I have found their evidence to be credible.

The concoction argument

I will now address the defendant’s submission that the plaintiff’s version of events is a concoction. I reject it for four reasons.

First, the evidence presented by the plaintiff is basically credible and, as outlined above, its credibility has not been undermined by analysis of the various purported inconsistencies in it.

Secondly, a concoction in this case depends on too many individuals from different walks of life being prepared to tell lies. If there were a concoction, the parties to it would be: the plaintiff, his two team-mates, his brother, Dr McKup, Dr Tingnee and First Constable Yapu and, probably, the medical staff of the hospital who prepared the admission notes and treatment records that indicated the plaintiff had been injured in a motor vehicle accident. I appreciate Mr Reid’s argument that there was a motive for a concoction in that it might have been thought that lodging a claim with MVIL was the only realistic way to obtain compensation. I also appreciate that it is not beyond the realm of possibility to get a plaintiff’s relatives and friends to be a party to a concoction. But, to get two medical practitioners involved too? And a police officer who is not known to have any connection with the family, what are the chances of him being a party to it? These must be presumed, in the absence of evidence to the contrary, to be remote possibilities. I am persuaded by Mr Dowa’s submission that the argument that a consultant surgeon at a major public hospital would involve himself in such a scheme ought not, in the absence of evidence, be entertained.

Thirdly I have already decided that the admission notes are a genuine record of the plaintiff’s admission to hospital on the evening of 21 October 2002. The notes say that he was injured in a motor vehicle accident. Everything points to the event that caused his injuries happening a short time before he was admitted. If he fell from a tree or sustained the injuries in some other way, someone would have had to decide to hatch the concoction straight after the plaintiff was injured. I consider the chance that that was actually the case as remote.

Finally the manner in which the defendant raised the concoction issue, leaving it to be raised until submissions, offended against the rule in Browne v Dunn (1893) The Reports 67. This rule, applied consistently in Papua New Guinea in both civil and criminal proceedings, can be expressed in many different ways. For example:

•	if counsel does not put things to a witness in cross-examination, there should be no complaint if the witness is believed (Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L), National Court, Wilson J);

•	a party’s failure to adhere to the rule is not necessarily fatal to that party’s case but will go to the question of the weight to be attached to the unchallenged testimony (The State v Peter Oh Piom Mo [1998] PNGLR 66, National Court, Jalina J);

•	any matters upon which it is proposed to contradict the evidence in chief given by a witness must normally be put to him so that he may have an opportunity of explaining the contradiction; and failure to do this may be held to imply acceptance of the evidence in chief (Sidi Adevu v MVIT [1994] PNGLR 57, Supreme Court, Kapi DCJ, Andrew J, Sakora J; though note that in that case the rule in Browne v Dunn did not provide a good ground of appeal against a decision of the National Court to refuse a claim as all that the defendant had done was to put the plaintiff to proof and the trial judge held properly that the plaintiff had failed to prove his case on the balance of probabilities);

•	evidence not challenged should be taken to have been accepted (Haiveta v Wingti (No 1) [1994] PNGLR 160, National Court, Sheehan J);

•	in order for a party’s claim to be considered credible, the party must in fairness put its case to the other side’s witnesses by way of cross-examination (The State v Kevin Anis (2003) N2360, National Court, Kandakasi J);

•	if a counsel intends to submit that a witness has lied, the counsel must have put it directly to the witness that he or she has lied so as to give the witness the opportunity to explain (The State v Pennias Mokei (No 1) (2004) N2606, National Court, Cannings J).

By arguing that the plaintiff’s story was a concoction the defendant was arguing that the plaintiff’s witnesses – including the plaintiff himself – were lying. This was a serious allegation and it should have been put to each of the witnesses who the defendant was asserting was a party to the concoction. That was not done. Each witness’s evidence was tested in cross-examination but it was not put to any of them that he was lying. That has the consequence of tending to maintain the weight otherwise to be attached to the plaintiff’s witnesses’ evidence and lessening the credence to be attached to the concoction argument.

Conclusion re cause of injury

I am satisfied that the plaintiff has proven on the balance of probabilities that he was injured while playing touch rugby at about 5.30 pm on 21 October 2002 at Pope John Paul II Oval in Mt Hagen when he was hit by a Nissan Navara utility driven by Patrick Pat.

WAS THE VEHICLE INSURED?

Principles

I will resolve this issue by applying the following principles:

•	though Section 49 of the Motor Vehicles (Third Party Insurance) Act requires that a certificate be issued when insurance is obtained, there is no rule of law or procedure that says that a certificate must be adduced in evidence in order to prove that a vehicle was insured at the relevant time;

•	generally the plaintiff has the onus of proving on the balance of probabilities that the vehicle was insured;

•	however if a statement of claim gives details of the registration number and insurance policy number of a vehicle, the MVIL should not plead that it does not know and cannot admit whether a vehicle was insured and if it does so plead, its defence can to that extent be struck out (Jack Lundu Yalao v MVIT (1995) N1386, National Court, Injia J);

•	if evidence as to insurance is conflicting the court should generally insist on a certificate as proof of insurance (Imambu Alo v MVIT [1992] PNGLR 487, National Court, Brown J; Pare Umbe and Ngants Kopi v MVIT (1998) SC585, Supreme Court, Hinchliffe J, Sawong J, Akuram J);

•	if there is no proof that the vehicle was registered it will be difficult in the absence of a certificate of insurance to prove insurance (Garo Kei v MVIT [1992] PNGLR 195, National Court, Brown J);

•	oral evidence by a police officer of a search of the motor traffic registry which revealed that the vehicle was insured can constitute proof of insurance even if the certificate or a record of the search is not produced (Bepiwam Ambom v MVIT (1992) N1116, National Court, Brown J);

•	tender of a motor traffic accident report containing details of registration and insurance can, without anything more, constitute proof of insurance (Martin Kilte v MVIT (1992) N1085, National Court, Woods J; Kamtai Waine v MVIT [1993] PNGLR 446, National Court, Woods J);

•	oral evidence of a police officer containing details of the officer’s observations about checking of registration and insurance of a vehicle for the purposes of investigating a motor vehicle accident is not hearsay and can be accepted as the best evidence available, especially where it has not been disproved by the party with the responsibility of keeping statutory records (Swingley Oni v MVIT (2004) N2767, National Court, Batari J).

This case

In light of those principles I reject Mr Reid’s submission that it was necessary for the plaintiff to adduce a certificate of insurance to prove insurance. I accept his submission that it was open to the plaintiff to discover the necessary documents from the defendant, to summon the vehicle owner or to summon the production of the document from the owner. However, the failure of the plaintiff to do those things does not estop him from proving insurance by other means. He can prove insurance by relying on a road accident report prepared by a police road accident investigator, supplemented by oral evidence of the investigator.

As to the evidence of First Constable Yapu, I indicated earlier that I regarded him as a credible witness. He was subjected to vigorous cross-examination on all aspects of his evidence including the inquiries he made as to registration and insurance of the vehicle. He testified that the day after the incident took place he obtained the original registration and insurance papers from the owner of the vehicle. He satisfied himself that the registration and insurance were current. He checked the vehicle and satisfied himself that the safety sticker was current. He transcribed the registration and insurance details into his report. After compiling his report he returned the original papers to the owner. He stated that if the vehicle was not insured the driver would have been charged with an offence.

I do not regard First Constable Yapu’s evidence as hearsay. I accept Mr Reid’s point that it seems unusual that the vehicle was insured in Port Moresby and registered in Mt Hagen, on the same day. However I do not accept that that is impossible.

I accept Mr Dowa’s submission that the present case is distinguishable from Imambu Alo and similar cases where claims were dismissed as there was conflicting evidence about whether the vehicle was insured. In the present case the evidence was not in conflict.

Conclusion re insurance

For all those reasons I conclude that the plaintiff has proven on the balance of probabilities that the vehicle that collided with the plaintiff was insured by the defendant. I am comforted in that conclusion by the defendant’s failure to present any evidence as to the lack of insurance.

That completes the findings of fact. I will now address the three major legal issues.

DOES THE CLAIM MEET THE REQUIREMENTS OF THE MOTOR VEHICLES (THIRD PARTY INSURANCE) ACT?

Yes. The plaintiff’s claim falls within Section 54(1)(a), as it has been proven that:

•	it is a claim for damages;

•	for bodily injury to a person;

•	arising out of the use of a motor vehicle;

•	the motor vehicle was insured under the Act;

•	the claim was made against the defendant and not against the owner or driver; and

•	proceedings to enforce the claim were taken against the defendant and not against the owner or driver.

WAS THE DRIVER GUILTY OF THE TORT OF NEGLIGENCE?

To establish liability the plaintiff needs to satisfy the five basic elements of the tort of negligence:

•	first that the driver owed a duty of care to the plaintiff;
 
•	secondly that the driver breached that duty, ie was negligent;

•	thirdly that the driver’s negligent conduct caused injury to the plaintiff;

•	fourthly that the plaintiff’s injuries were not too remotely connected to the driver’s conduct; and

•	fifthly that the plaintiff has not contributed to his or her own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.

(See generally Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779, National Court, Cannings J.)

I am satisfied that the plaintiff has proven all elements of negligence and this has, in effect, been conceded by the defendant. In its defence to the statement of claim the defendant pleaded contributory negligence by the plaintiff. This was sensibly not pursued at the trial as it could hardly be suggested that a person playing touch rugby in a public park has a duty to keep a proper lookout for moving vehicles.

The defendant has raised an issue about poor primary trauma care, in view of the manner in which the plaintiff was transported to the hospital. Though I think this is better regarded as a causation issue the defendant raised it in the course of its submission on damages. So I will address it in that context. For now I will conclude that the second major legal issue has been proven, ie that the driver of the vehicle committed the tort of negligence. Therefore liability has been established against the defendant.
 
WHAT AMOUNT OF DAMAGES SHOULD BE AWARDED?

Claim and response

I will set out in the following table what categories of damages the plaintiff is claiming and how the defendant responds.

TABLE 2: PLAINTIFF’S CLAIMS AND DEFENDANT’S RESPONSE

No	Category	Amount claimed	Response	
1	General damages	K350,000.00	 K30,000.00	
2	Future economic loss	208,000.00	40,000.00	
3	Special damages	14,156.00	32,000.00	
4	Special house	40,000.00	0	
5	Future medical & related expenses	48,000.00	8,000.00	
6	Nursing expenses	48,000.00	0	
7	(Poor primary trauma care)	0	(28,500.00)	
	Total	K708,156.00	 K81,500.00	

General damages

This head of damage was pleaded in the statement of claim and represents pain and suffering and loss of amenities of life and loss of expectation of life associated with the plaintiff’s permanent incapacity, quadriplegia. Mr Dowa cited a number of previous cases to demonstrate a fair figure. I accept his submission that the effects of inflation have to be considered when comparing awards of damages in previous cases. (See Tumunda Toropo v Jack Awabe and The State (2001) N2116, National Court, Hinchliffe J.)

I will summarise the cases in which courts in Papua New Guinea have assessed general damages for plaintiffs who have suffered quadriplegia or its related but less serious condition, paraplegia.

TABLE 3: ASSESSMENT OF GENERAL DAMAGES – QUADRIPLEGIA

No	Case	Details	Assessment	
1	Kepa v Boi Gerek and The State 
[1991] PNGLR 424
National Court, 
Woods J,
judgment given 08.03.91	The plaintiff, a 28-year old woman, aged 31 years at trial, active in church and village affairs and the running of a village coffee project, was rendered a quadriplegic and totally dependent on others for needs, as a result of a motor vehicle accident caused by the negligence of the driver of a government vehicle in which she was a passenger. General damages covered pain and suffering and loss of amenities of life. Separate awards of damages were made for loss of expectation of life (K1,500.00); past out of pocket expenses (K12,960.00); future medical expenses (K15,000.00); further nursing and care (K11,300.00) and home alteration (K15,000.00).	K140,000.00	
2	Wallace v MVIT
[1991] PNGLR 341
National Court, 
Doherty J,
judgment given 06.09.91	The plaintiff was rendered a quadriplegic because of a motor vehicle accident, lodged a claim with the insurer and reached settlement on the amount of general damages, exclusive of costs and interest. A dispute later arose about assessment of interest and damages. The plaintiff commenced proceedings to enter judgment on the settled amount and to recover interest.	K100,000.00	

TABLE 4: ASSESSMENT OF GENERAL DAMAGES – PARAPLEGIA

No	Case	Details	Assessment	
1	Charles Pupu v Pelis Tomilate and The State
[1979] PNGLR 108
National Court, 
Saldanha J, 
judgment given 10.04.79	The plaintiff, a qualified aircraft maintenance engineer, aged 25 at the time of injury and 28 at trial, was rendered a paraplegic as a result of a motor vehicle accident. The award of general damages covered pain and suffering and loss of amenities (K30,000.00); future economic loss (K58,085.00); future out of pocket expenses, eg medical, house alterations (K15,855.00). 	K30,000.00	
2	Robert Younger Kerr v MVIT
[1979] PNGLR 251
Supreme Court, 
Raine DCJ, Pritchard J, Andrew J,
judgment given 10.08.79	The plaintiff, a 26-year old non-citizen, was rendered a paraplegic as a result of a motor vehicle accident, and appealed to the Supreme Court against an assessment of damages by the National Court on the ground of inadequacy. It was held that in assessing general damages for pain and suffering and loss of amenities of life the assessment should be made having regard to the prevailing condition of the plaintiff at the time of injury and the general standards prevailing in the community. The appeal was upheld. The Supreme Court assessed general damages, covering pain and suffering and loss of amenities of life (K60,000.00); loss of expectation of life (K1,500.00); future economic loss (K60,000.00); special equipment (K13,000.00); and future nursing and housekeeping expenses (K30,000.00).	K60,000.00	
3	Meddie Serive v The State 
[1981] PNGLR 549
National Court, 
Pratt J,
judgment given 30.07.81	The plaintiff, a 20-year old man who had just completed his probation as an assistant correctional officer, suffered head and spinal injuries in a motor vehicle accident and was rendered a paraplegic. The award of general damages covered economic loss; housing; vehicle; wheelchairs; family services; loss of expectation of life; and pain and suffering and loss of enjoyment of life (K45,000.00).	K45,000.00	
4	Aundak Kupil and Kauke Kensi v The State
[1983] PNGLR 350
National Court, 
Bredmeyer J, 
judgment given 20.10.83	The two plaintiffs, male villagers, were each rendered a paraplegic as a result of a motor vehicle accident. The first plaintiff had three wives and received income from the sale of firewood and a tradestore. The second plaintiff had one wife and received income from sale of firewood, vegetables and pigs. The awards of general damages excluded damages for past economic loss; loss of expectation of life; past medical expenses; and future medical expenses. 	K90,000.00
K75,000.00
	
5	Pokowan Kandaso v MVIT
(1992) N1074
National Court, 
Woods J,
judgment given 01.07.92	The plaintiff, a village woman in her early 20s, was rendered a paraplegic with 100% permanent loss of function in both legs and incontinence, as a result of a motor vehicle accident caused by the negligence of the driver of the utility on the back of which she was riding. The award of general damages excluded damages for past (K1,600.00) and future (K12,000.00) economic loss.	K90,000.00	
6	John Taka v Leo Kipi and The State 
[1995] PNGLR 254
National Court, 
Woods J,
judgment given 17.02.95	The plaintiff, a village man in his late 20s, with no formal education, was rendered a paraplegic and dependent on others for needs, as a result of a motor vehicle accident caused by the negligence of the driver of a government vehicle in which he was a passenger. The award of general damages excluded damages for past economic loss (K9,100.00).	K90,000.00	

Having considered all the above cases the one that stands out as the most suitable precedent is Kepa, decided in 1991 in Mt Hagen by Woods J. The sum of K140,000.00 was awarded to a young village woman who suffered quadriplegia due to a motor vehicle accident. That was fourteen years ago and the reduced purchasing power of the kina must be considered. In arriving at an appropriate figure I have disregarded the statutory limit of K150,000.00. That only becomes relevant once the total amount of damages is assessed.

I have considered that the purpose of an award of damages is to compensate a person; to put them as far as possible in the same position they would have been in had they not suffered the injuries incurred because of another person’s negligence. Damages are intended to be neither a reward nor a penalty (Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364, National Court, Brunton AJ).

In the present case the plaintiff now faces an extraordinarily difficult life. He will be entirely dependent on others to live and survive from day to day. It is really an impossible task to make an assessment of damages commensurate with what he has lost and what he will endure for the rest of his life. Mr Dowa submitted that the sum of K350,000.00 should be assessed. I do not think that is outside the bounds of reasonableness. However it is not appropriate for the National Court to make a quantum leap, to that extent. So the figure will be less than that. As for the defendant, Mr Reid proposed K30,000.00. That is a grossly inadequate amount, so out of line with precedent that it is insulting and insensitive to suggest it. I consider it appropriate to double the amount assessed in Kepa.

Therefore I assess general damages at K280,000.00.

Future economic loss

This has been inadequately particularised in the statement of claim and the evidence in support of this aspect of the claim is weak. The plaintiff has a substantially reduced life expectancy due to his quadriplegia. I discount the claim of K208,000.00 to the amount proposed by the defendant.

The assessment is K40,000.00.

Special damages

This is said to be the amount spent on nursing and other medical treatment in the pre-trial period. Evidence is contained in the affidavit of the plaintiff’s brother, Joe Kupe. The amount is reasonable and is not seriously disputed by the defendant.

The assessment is the amount claimed, rounded to the nearest thousand, K14,000.00.

Special house

The plaintiff claims K40,000.00 for the cost of building a special house. Mr Dowa submits that there is a precedent for this in Kepa, where the quadriplegic plaintiff was awarded K15,000.00 to allow a new home to be built or to cover alterations to ensure she had a suitable home to live in. It has been adequately pleaded in the statement of claim and is properly regarded as a separate head of damage.

I assess K30,000.00.

Future medical and related expenses

This has been inadequately particularised in the statement of claim and the evidence in support of this aspect of the claim is weak. The plaintiff has a substantially reduced life expectancy due to his quadriplegia. I discount the claim of K48,000.00 by 50%.

The assessment is K24,000.00.

Nursing expenses

The amount claimed, K48,000.00, will be discounted by 50%, for the same reasons as medical and related expenses.

The assessment is K24,000.00.

Poor primary trauma care

The defendant submits that whatever total amount of damages is assessed, it should be reduced by 25% because of the poor primary trauma care given to the plaintiff prior to admission to hospital. Mr Reid points out that the admission notes state:

Was brought into the hospital by a non-medical team – poor primary trauma care. … DO NOT MOVE NECK.

It is fundamental first aid for spinal injuries that the spine and neck be immobilised. Here the plaintiff’s team-mates say that they dragged the plaintiff from under the car, a Nissan utility, then put him on the metal tray of the utility, which was then driven across the bumpy, uneven field to the hospital. It is highly likely that if the accident occurred as alleged the poor primary trauma care contributed to the plaintiff’s injuries by 25%. This is not the defendant’s responsibility, Mr Reid submitted.

I accept that the evidence establishes that the plaintiff was given poor primary trauma care. However the evidence falls short of enabling the court to find that this actually contributed to his injuries. Dr McKup stated in evidence that there is a possibility that the way in which the plaintiff was transported to the hospital would have contributed to his injuries. Dr Tingnee was not asked any questions about it. I therefore cannot make the finding of fact that would be required to sustain this submission.

However, if I had made that finding I would have still reached the conclusion that there should be no deduction. The submission is misconceived, coming as it does late in the proceedings when the court is assessing damages. It is not a contributory negligence argument, as contributory negligence applies only when the plaintiff is guilty of contributing to his injuries by his own negligence. It is not a remoteness argument, as the plaintiff has already established that the type of injuries he suffered was reasonably foreseeable and therefore not too remote.

It is, at best, a causation argument. There was a break in the chain of causation. A separate event happened (the poor primary trauma care) which was not reasonably foreseeable, and which actually became a major cause of the plaintiff’s injuries. That argument, however, cannot be sustained. Even deliberate and unlawful acts by third parties that follow a negligent act do not absolve the negligent party if the acts of the third parties are such as would be known by the ordinary reasonable person to be a likely consequence of a negligent act. A case in point is Elizabeth Moini v Government of Papua New Guinea [1977] PNGLR 39, National Court, Williams J. A government vehicle, driven negligently, ran over and killed a child on the highway near Goroka, Eastern Highlands Province in 1972. Immediately after the accident angry and distressed villagers took retaliatory action against the occupants of the vehicle. The driver and the plaintiff’s husband, who was a passenger, were killed. It was held that liability does not depend on the injury being the direct and natural consequence of the defendant’s negligence. A person in the position of the driver would know that negligent driving causing death to a villager in the Highlands would be likely to set in motion violent retaliatory action against the occupants of the vehicle he drove. The plaintiff’s husband’s death was a foreseeable consequence of negligent driving. Therefore the government, as employer of the negligent driver, was liable in damages for the death of the plaintiff’s husband.

Applying those principles to the present case: would a person in the position of the driver of the utility know that if he collided with a footballer on the field causing him serious injury that team-mates or bystanders would be likely to give poor primary trauma care? Was poor primary trauma care, exacerbating the injury caused directly by the collision, a reasonably foreseeable consequence? These issues would be answered yes. Poor primary trauma care was reasonably foreseeable. There was no break in the chain of causation.

There will be no reduction in the assessment of damages due to poor primary trauma care.

Total assessment

To sum up I make the following assessment of damages:

•	general damages of K280,000.00;

•	future economic loss of K40,000.00;

•	special damages of K14,000.00;

•	special house of K30,000.00;

•	future medical and related expenses of K24,000.00;

•	nursing expenses of K24,000.00. 

The total assessment of damages, subject to the statutory limit, is K412,000.00.

Statutory limit

As explained earlier Section 49(2)(a)(i) imposes a limit on the liability of the defendant in this case of K150,000.00. I will therefore award damages of K150,000.00. That amount is exclusive of interest and costs (MVIT v Reading [1988] PNGLR 236).

Lump sum or periodic payments?

The defendant urged the court to consider making damages payable in the form of periodic payments as was done in John Taka v Leo Kapi and The State [1995] PNGLR 254. The same thing was done in Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350 where Bredmeyer J found authority for doing so in Section 155(4) of the Constitution. There is no doubt the court has the power to make such an order and given the age and circumstances of the plaintiff it would be a proper order to make.

It is a worthwhile suggestion. However it is not what the plaintiff wants. The plaintiff gave evidence and I observed his demeanour and, consistently with the medical evidence, he exhibited no signs of intellectual impairment or mental infirmity. I gained the impression that he knows what these court proceedings are about. His brother, Joe Kupe, was cross-examined as to his role in caring for the plaintiff and looking after money matters. He stated that he would manage the money for the benefit of the plaintiff for the rest of his life. He will not misappropriate it. His demeanour gave me no reason to believe that he was not genuine. Therefore I will order that the award of damages be paid in a lump sum.

INTEREST 

Discretion

It is normal practice in a case in which damages are awarded to also award interest under the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Section 1(1) is the relevant provision. It states:

… in proceedings in a court for the recovery of a debt or damages the court may order that there be included in the sum for which judgment is given interest, at such rate as it thinks proper, on the whole or part of the debt or damages for the whole or part of the period between the date on which the cause of action arose and the date of the judgment.

As Bredmeyer J pointed out in Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24, this section confers a four-fold discretion on the Judge: (1) whether to grant interest at all; (2) to fix the rate; (3) to grant interest on the whole or part of the debt or damages for which judgment has been given; and (4) to fix the period for which interest will run. 

Exercise of discretion

I exercise that discretion in the following way:

1	A plaintiff should in the normal course of events receive interest. There is nothing that takes this case out of the ordinary in that regard. Interest will be included in the sum for which judgment is given. 

2	The standard rate of interest being used these days by the courts is 8%. In view of prevailing interest rates in the country 8% could be considered generous. However the defendant concedes that 8% is appropriate so it is, I think, the proper rate of interest. It has been decided in some cases that awards of special damages should attract interest at only half of the proper rate (eg Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, National Court, Bredmeyer J; approved on appeal in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160, Supreme Court, Pratt J, Amet J, Woods J). I will follow that approach. 

3	Interest should be payable on the total of the pre-judgment components, if any, of the various categories of damages that have been assessed. The governing principle is that interest is not intended to be compensation but an award of money paid to the plaintiff for being kept out of money that ought to have been paid to him. In Pinzger the Supreme Court acknowledged the sound arguments in favour of dividing up damages for pain and suffering and loss of amenities of life into components for past and future and confining interest awards to the component for past pain and suffering and loss of amenities. It follows that if a head of damage is compensation for future losses, eg damages for loss of future earnings, it will not attract any interest. I identify the pre-judgment and post-judgment components of the various categories of damages in the following table.

TABLE 5: PRE-JUDGMENT AND POST-JUDGMENT COMPONENTS OF CATEGORIES OF DAMAGES

No	Category	Pre-judgment	Post-judgment	Total	
1	General damages	K60,000.00	K220,000.00	 K280,000.00	
2	Future economic loss	0	40,000.00	40,000.00	
3	Special damages	14,000.00	0	14,000.00	
4	Special house	0	30,000.00	30,000.00	
5	Future medical & related 	0	24,000.00	24,000.00	
6	Nursing expenses	0	24,000.00	24,000.00	
	Total	K74,000.00	K338,000.00	 K412,000.00	

Thus only two categories of damages will attract interest: general damages (K60,000.00) and special damages (K14,000.00).

4	The appropriate period for which interest is to run is also the subject of Supreme Court guidelines in Pinzger. It varies according to the category of damages. For general damages it is from the date of service of the writ to the date of trial. For special damages it is from the date of the accident to the date of trial. In other cases the date of judgment has been substituted for the date of trial (eg Reading v MVIT [1988] PNGLR 266, National Court, Woods J; affirmed on appeal in MVIT v Reading [1988] PNGLR 236, Supreme Court, Kidu CJ, Amet J, Cory J). I consider that the date of judgment is a fairer end-mark for the period. As that lies within the boundaries of my discretion, I set it at that. In the present case the date of the accident is 21 October 2002. The date of service of the writ is 31 July 2003. The date of this judgment is 28 July 2005. Interest will run on general damages (at 8%) from 31 July 2003 to 28 July 2005, a period of 1.99 years. Interest will run on special damages (at 4%) from 21 October 2002 to 28 July 2005, a period of 2.77 years.

Calculation

I calculate the amount of interest by applying, in relation to each category of damages attracting interest, the following formula:

•	D x I x N = A

Where:

•	D is the amount of damages assessed;

•	I is the rate of interest per annum;

•	N is the appropriate period in numbers of years;

•	A is the amount of interest.

Therefore:

•	interest on general damages = K60,000.00 x 0.08 x 1.99 = K9,552.00; 

•	interest on special damages = K14,000.00 x 0.04 x 2.77 = K1,551.20. 

I will order that there be included in the sum for which judgment is given, interest of K11,103.20.

COSTS

The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. The question of costs is a discretionary matter. 

On the second day of the trial, 19 October 2004, the plaintiff applied during the course of submissions to reopen the evidence by recalling First Constable Yapu to the witness box to give evidence regarding the insurance issue. The application was objected to. I upheld the application but ruled that costs of that day’s proceedings and any proceedings held as a consequence of that ruling would be borne by the plaintiff. First Constable Yapu was recalled on the third and final day of the trial, 21 October 2004. Therefore the plaintiff must bear the costs of the proceedings for all of 19 and 21 October 2004.

All other costs must be paid by the defendant. 

JUDGMENT

The Court directs entry of judgment in the following terms:

1	damages, payable by the defendant, MVIL, to the plaintiff, Omben Kumbe, in a lump sum of K150,000.00;

2	interest payable by the defendant, MVIL, to the plaintiff, Omben Kumbe, in a lump sum of K11,103.20;

3	being a total judgment lump sum of K161,103.20 to be paid within 30 days after the date of entry of this judgment;

4	costs of the proceedings shall be paid by the defendant to the plaintiff on a party-party basis, to be taxed if not agreed, except in relation to the proceedings of 19 and 21 October 2004, the costs of which shall be paid by the plaintiff to the defendant on a party-party basis, to be taxed if not agreed.

Judgment accordingly.
____________________________________________________________

Lawyers for the plaintiff		: 	Dowa Lawyers
Lawyers for the defendant		: 	Melanesian Legal Group