N3565

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 250 OF 2004

BETWEEN:

MATHEW JOHN WESTCOTT
Plaintiff

AND:

MOTOR VEHICLES INSURANCE LIMITED
First Defendant

AND:

COLLINS & LEAHY LIMITED 
trading as EAST WEST TRANSPORT
Second Defendant

AND:

SAMSON OUMBA
Third Defendant

Goroka: Davani .J
2007: 5th, 14th November
2008: 31st October

NEGLIGENCE – Liability – Motorbike with pillion passenger – collision with a truck – whether plaintiff is contributorily negligent

EVIDENCE – Conviction in lower court – admissibility of Court records an issue – ss.45, 47 of Evidence Act Chapter 48

DAMAGES – leg injury – compound fracture of right femur, right tibia and fibula – fracture of right hand – permanent disabilities and scarring to right thigh, knee, calf and 1cm shortening of leg – osteoarthritis

DAMAGES – Maximum liability – other defendants to pay excess – s.49(2)(a)(i); s.54(1)(5) of Motor Vehicles (Third Party) Insurance Act Chapter 295

Facts

On 30th June, 2002, along the Okuk Highway, the plaintiff was driving a motorcycle with a pillion passenger, when his motorcycle was struck by a truck travelling in the opposite direction. The truck had on its tray a large container which struck the plaintiff’s motorcycle as he was turning a bend in the road.

The plaintiff and his pillion passenger, both sustained serious injuries. The plaintiff sustained compound fractures to his metacarpals. 

The third defendant driver was charged with dangerous driving causing grievous bodily harm and was convicted by the District Court and sentenced.

Presently, the plaintiff suffers these permanent injuries, disabilities and loss of function to affected parts of his body.

i	Right leg – 80% loss
ii	Right leg shortening – 100% change
iii	Scarring of skin and muscles – 50% loss
iv	Quality of life, pain and loss of full use of the right leg – 60% loss
v	Osteomyelitis (inflammation of the bone) – 25%
vi	Psychological trauma – 40%

Issues

The Court identified eight (8) issues which when summarized are;

i	Whether the third defendant was negligent in his driving?

ii	Whether the plaintiff was contributorily negligent?

iii	If the third defendant is negligent, is the second defendant, his employer, vicariously liable for the third defendant’s actions?

iv	Should the depositions of the District Court that found the third defendant guilty of Dangerous Driving Causing Grievous Bodily Harm, be relied on by this Court to assist it in determining whether the third defendant was negligent in his driving?

v	If the second and third Defendants are negligent, how much is the plaintiff entitled to?

Held

i	That the third defendant was negligent in his driving.

ii	That the plaintiff was not contributorily negligent.

iii	Yes, the second defendant is vicariously liable for the third defendant’s actions.

iv	Yes.

v	First Defendant MVIL – K125,449.18 which has already been paid.

- Third defendant East West to pay excess amounts of US$476,291.80 and AUD$5,705.36.

- The third defendant effectively pays the excess amount set out above, which amount is over and above the statutory maximum of K150,000.00.

Cases cited

Vevehupa v MVIT [1983] PNGLR 343
Caedmon Koieba v MVIL [1984] PNGLR 365
Pinzger v Bougainville Copper Ltd [1985] PNGLR 160
George Kiak v MVIT [1986] PNGLR 265
Pangis Toea v Motor Vehicles Insurance (PNG) Trust & The State [1986] PNGLR 294
Colbert v The State [1988-89] PNGLR 590
Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363
Moses Yere & Mt Hagen Gold Club (1996) N1648
Roth v OK Tedi Mining Limited (1998) N1788
Nelson Uro v The State (2001) N2056
Bosip Oka v MVIL [2001] N2122
Shelley Kupo v MVIT (2002) N2282
Swingley v MVIT (2004) N2767 

Counsel

I.R. Molloy and M. Mukwesipu, for the plaintiff
First defendant was unrepresented
P. Yange and M. Wilson, for the second and third defendants

DECISION

31 October, 2008

1.	DAVANI .J:	 This matter is before me for hearing on both liability and quantum, as agreed to by both counsel at the pre-trial stages and at the commencement of trial. 

Introduction

2.	This is a claim by Mathew John Westcott for damages, for injuries he sustained as a result of a motor vehicle accident in Goroka, Eastern Highlands Province, on 30th June, 2002, claim made by Writ of Summons and Statement of Claim filed on 17th March, 2004. Mathew Westcott alleges reckless driving and negligence by Samson Oumba, who was the driver of the truck owned by Collins & Leahy Limited, trading as East West Transport (‘East West’), which struck the motorbike he was driving and which resulted in him sustaining serious injuries.

Criminal Proceedings

3.	Thereafter, Samson Oumba was charged with the offence of dangerous driving causing grievously bodily harm to Mathew Westcott and one other, charge laid under Section 328(2)(5) of the Criminal Code Act, chapter 262. The trial was conducted before a magistrate in the Goroka District Court, after which Samson Oumba was found guilty of that offence and convicted on 30th January, 2004. He was sentenced to a period of 18 months in hard labour. Twelve (12) months of that sentence was suspended on conditions. Samson Oumba did not lodge an appeal against that conviction.

Deed of Release

4.	The "Statement of Agreed and Disputed Facts" filed by Stevens Lawyers on 9th November, 2007 (‘Statement’) is signed by Mathew Westcott’s lawyers and Warner Shand Lawyers, lawyers for Samson Oumba and East West. The Statement refers to an out of court settlement between Mathew Westcott and the first defendant, the Motor Vehicles Insurance Limited (‘MVIL’) "on a without admission of liability" (see pg. 1 of Deed of Release dated 8th August, 2007) having regard to the MVIL’s limit of liability under s. 49(2)(a)(i) of the Motor Vehicles (Third Party) Insurance Act, chapter 295 (the ‘Act’), which is K150,000.00. As part of the settlement, Mathew Westcott is at liberty to continue this proceeding, against Samson Oumba and East West, for the purpose of recovering the excess (if any) pursuant to s. 54(5) of the Act. Mathew Westcott tendered into Court the Deed of Release which agreed to a settlement in the sum of K172,979.45, which was inclusive of Mathew Westcott’s lawyer’s fees.

5.	The Deed of Release states further that for the purpose of entering judgment in the excess amount, that the court is at liberty to enter judgment against the first defendant in a sum less than K150,000.00 or an appropriate award of damages under s.54(1) of the Act.

Issues:

6.	The issues agreed to by both parties as contained in the Statement are;

a.	Whether or not, Samson Oumba was negligent whilst driving East West’s motor vehicle?

b.	Whether or not, Mathew Westcott was negligent in any way whilst riding the motorbike?

c.	Whether or not, Mathew Westcott suffered some personal injuries requiring medical treatment and whether he suffered any permanent disabilities as a result of these injuries?

d.	Whether or not, the injuries suffered by Mathew Westcott affected his future earning capacity?

e.	Whether or not, Mathew Westcott will incur any future medical expenses in relation to the injuries he sustained?

f.	Whether or not, Samson Oumba and East West are liable for any extra amount where they deny liability and where damages were not assessed for the sum agreed on a "without admission of liability basis" between the plaintiff and the MVIL?

g.	Whether or not, Mathew Westcott required and will require assistance in carrying out daily functions?

h.	Whether or not, Mathew Westcott is entitled to an award of damages against Samson Oumba and East West?

i.	The amount of damages (if any), under each head of damages, to be awarded to Mathew Westcott against Samson Oumba and East West.

j.	Whether the award (if any), should be reduced and if so, by how much, for contributory negligence?

k.	The amount (if any) for interest on damages.

l.	The award of costs.

7.	To answer these, the court will review the evidence of all witnesses. 

Mathew Westcott’s claim

8.	His claim is as pleaded in the Writ of Summons and Statement of Claim. The allegations of negligence are pleaded in paragraphs 7 to 10 of the Statement of Claim. Particulars of the medical treatment he sought and obtained are pleaded in paragraph 11 of the Statement of Claim. Permanent injuries suffered are pleaded in paragraph 12 of the Statement of Claim. The losses suffered by Mathew Westcott are pleaded in paragraphs 13 to 20 of the Statement of Claim. 

Samson Oumba’s Defence

9.	The MVIL, East West and Samson Oumba, plead contributory negligence by Mathew Westcott, in their Defence. They deny that they are responsible for the accident and plead this in their Defence filed on 3rd May, 2004. I have set out in full in the latter part of this decision the particulars of contributory negligence as pleaded in the Defence.

Liability 

A. Issues

10.	The issues that are pertinent towards establishing liability are;
 
i). Whether or not, Samson Oumba was negligent whilst driving East West’s motor vehicle?

ii). Whether or not, Mathew Westcott was negligent in any way whilst riding the motorbike?

I deal with both issues together.

In the trial on the aspect of liability, several documents were tendered through Mathew Westcott which were marked as exhibits. The Defendants also handed up documents in evidence which were marked as exhibits. I set out the evidence of all parties, on liability, below.

11.	But first, Mathew Westcott’s claims of negligence by Samson Oumba are pleaded in the Statement of Claim at paragraphs 5, 6 and 7(a) to (g). They read;

"5.	At the time and place aforesaid, as the motor cycle negotiated a bend in the road, it came into collision with the motor vehicle then being driven in the opposite direction on the Okuk Highway.

6. The said collision was caused by the negligence of the second and third defendants.

Particulars of Negligence

7. The second defendant by its servant or agent the third defendant, and the third defendant himself, were negligent in that the third defendant:-

(a).	Failed to keep any or any proper lookout;

(b).	Failed to keep the motor vehicle under any or any proper control;

(c).	Drove the motor vehicle at a speed which was excessive in the circumstances;

(d).	Drove the motor vehicle on the wrong side of the carriageway;

(e).	Failed to sound any warning of the approach of the motor vehicle;

(f).	Failed to apply the brakes on the said motor vehicle in time to avoid the said collision or at all;

(g).	Failed to steer or control the motor vehicle so as to avoid the said collision or at all."

B.	Mathew Westcott and witnesses’ evidence

12. Apart from himself, Mathew Westcott called Tony Anton, a villager, who witnessed the accident to give evidence on the aspect of liability. 

i. Mathew Westcott: He is the plaintiff. He was born on 31st July, 1984. Prior to the accident, he had lived all his life at the Lapilo New Tribes Mission, located about 13 kilometres outside Goroka, Eastern Highlands Province. He now resides at 34/Keefer Way, Mechanicsburg, Pennsylvania, United States of America. He is presently employed as an athlete’s trainer.

	He completed high school in Goroka in 2002. He intended to enroll at the Messiah College, Harrisburg, Pennsylvania, United States of America, in August, 2002. He could not because of the accident which occurred on 30th June, 2002.

	That day, he was involved in a head on collision with the truck while travelling on the motorbike, with his pillion passenger, Seth Emery. Several photographs of the scene of the accident, taken immediately after the accident by Mathew Westcott’s parents, were tendered into court as exhibits. These are marked as follows;

•	Exhibits A1, A2, A3 and A4; Coloured photographs of the scene of the accident showing the area of the road Mathew Westcott was looking at whilst travelling on the road. I will refer to these as ‘photographs of the road as seen by Mathew Westcott.’

•	Exhibits B1, B2, B3 and B4; Coloured photographs of the scene of the accident showing the area of the road as seen by Samson Oumba whilst travelling on the road. I will refer to these as ‘photographs of the road as seen by Samson Oumba’.

•	Exhibits G; An enlargement of exhibit A2. I will refer to this as ‘enlarged photograph of the road as seen by Mathew Westcott’.

Other photographs that were tendered through Mathew Westcott were those of his injuries showing the state of his leg as at 4th July, 2002 to the first surgery and skin grafting, also in July, 2002. There are 12 photographs in all, which are very graphic and which show the serious nature and extent of the injuries. These are marked as exhibit ‘C’. I will refer to these as ‘photographs of injured leg’.

Other documentation tendered through Mathew Westcott are;

•	Exhibit ‘D’; A summary in table form of the out of pocket expenses incurred by Mathew Westcott from 30th June, 2002 to 19th March, 2007, expenses incurred whilst he was in PNG, in Australia and the United States of America (‘USA’).

•	Exhibit ‘E’; Medical report prepared by Dr. I. Betuela of the I M Associates Ltd, Medical and Consultancy Services, Goroka, dated 18th June 2004. It is a report done after review of Mathew Westcott’s leg injuries. I refer to it as ‘the review report’.

13. Mathew Westcott’s evidence is in relation to the events leading up to the accident and a description of the area where the accident occurred. He also gave evidence of the treatment he received, the monies he spent in relation to this treatment both in Papua New Guinea and overseas and his permanent disabilities. 

14. In relation to liability, he said, that day at about 9:30 a.m., both his pillion passenger and him were travelling on the motorbike and wore helmets. His passenger was the same age as him. It was a clear sunny day and he was travelling at approximately 45 kilometres per hour. He said the road they were travelling on was a sealed road and was wide enough for two vehicles to travel on. He said there were also numerous potholes near the top of the hill where the road turned. He was travelling up hill where the road then swerved to the left. He was also very familiar with the road as he had travelled on it many times and was also aware of the existing potholes. As he approached the top of the hill, he said he then decreased his speed because of the many potholes there and because he needed to manoeuvre safely through them. He was travelling on the left hand side of the road as he was going up hill. His view was also limited by the overgrown kunai grass on either side of the road as he was travelling up hill. Four photographs were tendered through him at that time marked Exhibits "A1" to "A4".

15. These photographs as seen by Mathew Westcott and which I saw, show the following;

-	Both sides of the road are overgrown by kunai grass.

-	Upon rounding the corner, potholes are clearly visible on Mathew Westcott’s side of the road. 

-	Further up, right at the bend turning left, there are several large potholes strewn across the road. 

-	There are no white road lane markings in the middle of the road. 

16. The next lot of photographs tendered through him were photographs of the road as seen by Samson Oumba, the driver. I describe these as follows;

-	Both sides of the road are overgrown by kunai grass.

-	Upon approaching the bend, there are large potholes strewn right across the road. 

-	That having driven past these large potholes, Samson Oumba would have gone a distance of about 3 to 4 meters before reaching the portion of the road turning the corner to the right where there are also potholes.

-	There are no white road lane markings in the middle of the road.

17. Mathew Westcott said that as he approached the left hand bend, he saw the truck approach, which was carrying a large container seated on a long trailer, and which was travelling very fast on his lane. He said he then attempted to steer his motorbike to the left as much as possible to avoid a collision. He said there was not much room for him to move because he would have driven into the kunai grass. He said it was along the bend that the impact occurred. He said the impact occurred because the truck, on seeing him, and whilst on his (Mathew Westcott’s) lane, then braked and then, suddenly swerve to avoid him. The truck did avoid him, but the trailer of the truck, still carried by the momentum, was still turning and was still in Mathew Westcott’s lane. It was the side of the trailer that hit his motorbike. He said although he had moved as far as he could to the left and very nearly into the kunai grass, the side of the trailer which was still on his side of the road, struck the motorbike.

18. He said when he regained consciousness, he was sitting on the side of the road. He saw his right leg lying limp with the entire length of his thigh split open. He instinctively moved his leg but when he did that, his femur broke, further widely splitting his thigh. He said his passenger was lying ahead of him but on the opposite side of the ditch beside the road. He was also unconscious. 

19. He said the truck did not stop but continued to travel down the road. 

20. He said he was treated at the Goroka General Hospital then flown that afternoon to Australia where he was treated at the Cairns Base Hospital. 

ii). Tony Anton - This witness said he saw the accident. 

	He said at the date of the accident he was standing on the Kamaliki Road. He said he was at his village and was walking up to a shop. However, the shop was closed so he turned and returned. On his return, he saw a big truck drive into the lane on which there were two boys travelling on a motorbike. He said these two boys were from the New Tribes Mission. He said he did not see anybody else. He then saw the big truck travel back to its own lane however the trailer which was still on the lane the boys were on, struck the motorbike carrying the two boys. He said that the big truck did not stop. He pointed to Mathew Westcott as one of the boys who was on the motorbike. 

	He said before the big truck struck the motorbike, that because it was travelling down hill, that it was travelling very fast. 

	On cross-examination he said he was about 30 to 50 meters from the scene of the accident. He said there was nothing blocking his view so he could see the motorbike driving up on the left hand side of the road and the truck driving down, also on the left hand side of the road and at the same time, turning the bend. He said he then saw the truck veer into its correct lane. He re-emphasized that he saw the trailer of the truck strike the motorbike, and that the motorbike was on its lane when the trailer struck it. He said the motorbike was just turning the bend when this occurred. He also said the potholes have always been there on the road.

	This witness also gave evidence in the District Court in the criminal proceedings against Samson Oumba, and gave the same evidence. I confirmed this by reviewing the District Court Depositions which is in evidence before me.

iii). Steven Westcott - He is the plaintiff’s father. His evidence is only in relation to the medical treatment rendered to Mathew Westcott and the expenses associated with the treatment. It has no relevance to liability.

iv). Dr Betuela – His evidence is in relation to the injuries sustained by Mathew Westcott and the treatment rendered and has no relevance to liability.

C.	Samson Oumba and witnesses’ evidence

	As stated earlier, Samson Oumba alleges that Mathew Westcott was negligent in the manner in which he drove the motorbike, thus contributing to the accident. This is pleaded in the Defence as;

"Particulars of Negligence

a).	Failing to confine the course of his motorbike to the left hand half of the roadway.

b).	Failing to drive his motorbike on the left hand side of the roadway when meeting or approaching another vehicle.

c).	Driving on the right hand side of the roadway without making sure that there was clear view of the roadway for a safe distance.

d).	Attempting an improper and unsafe makeover on the highway.

e).	Failing to give any or any adequate warning to the other driver by sounding the horn of his motorbike.

f).	Driving the motorbike on the highway when his ability to drive was impaired by fatigue.

g).	Driving a motorbike at an excessive rate of speed or in the alternative, at a rate of speed, which was excessive in the circumstances.

h).	Failing to keep a proper or any lookout.

i).	Failing to take reasonable and proper steps to avoid the accident in the circumstances.

j).	Failing to direct the course of his motorbike so as to avoid the accident when it was or should have been apparent that an accident was likely.

k).	Driving the motorbike in an unsafe mechanical condition with defective brakes and steering mechanism.

l).	Operating a motorbike on the highway without any or effective brakes or alternatively failing to apply the brakes in time to avoid the accident.

m).	Disobeying the Motor Traffic Act and its regulations.

n).	Travelling without due care and attention and without reasonable consideration for other road users using the highway.

…".

i.	Samson Oumba; He denies that the accident occurred as a result of his negligence. He said that he was travelling on his side of the road, the right lane, and that it was the motorbike with Mathew Westcott on it that drove into the truck.

	He gave sworn evidence and was also cross examined by Mathew Westcott’s lawyer.

	He told the Court that on 30th June, 2002 about 9:00 am in the morning, he was travelling towards Kamaliki from Goroka. He said he drove past the Blind Centre and then tried to reduce speed. He said he recalled reducing speed, then whilst on low gear, he turned the corner. He said that this was when he saw the first motorbike and it was travelling at full speed. He also, at that time, saw a second bike. He said the both bikes were on his lane. The first bike avoided him. The second motorbike travelled right in front of him. He said that at that time, he was driving on the left lane from Goroka to Kainantu. He saw the motorbike driver attempt to straighten the motorbike but could not because he was already on the lane that the truck was on. He said that he then pulled out and drove his front tyre into the drain. He said he also could not swerve because there was not enough space. He said that he then watched the motorbike in his rear vision mirror drive into the trailer at the back of the truck.

	He said that he then saw big potholes on the road. He saw a big one in front of him but before that, there were lots of small potholes. He said that the potholes were on the left hand side of the road leading to Goroka from Kainantu.

	In cross examination, the following items were tendered into evidence. They were;

i	Goroka District Court Depositions from proceedings DC 104 of 2002 between the Police and Samson Oumba, proceedings where Samson Oumba was found guilty and convicted of dangerous driving causing grievous bodily harm.

ii	Samson Oumba’s record of interview with the police, conducted on 20th September, 2002, which was part of the tendered District Court depositions.

	Cross-examination revealed that upon his arrest, Samson Oumba told the police during the record of interview, a different story to what he told the District Court.

	When asked why he told a different story to the police (in his Record of Interview) from what he told the District Court, the witness did not directly answer the question but continued to maintain the story he gave. In cross-examination, Mathew Westcott’s lawyer confirmed Samson Oumba’s contradictory story given under oath, by various documentation that he tendered and that I referred to earlier, which included Samson Oumba’s Affidavit sworn on 20th August, 2005 which was filed in these proceedings. In that Affidavit, Samson Oumba deposed to what he told the Court in his verbal evidence. He also said that to avoid the potholes, the second motorbike with two riders, crossed over into his lane. He applied his brakes, slowed down and kept on the far left as much as possible, on his side of the lane where eventually the front tyre of the truck went in the side drain rendering the truck motionless. He said because the motorbike was travelling very fast, it was too late for them to turn back onto their lane. Whilst stationary, he kept a watch through the side mirror of the truck, on the bike riders. He saw the motorbike hit the last rear tyres of the trailer. He said he then came out of the truck and assisted the injured persons by lying them on the road. When he saw that they were out of danger, he reversed his truck out of the drain and proceeded to Lahmanegu where he left the container with its cargo.

	However, in his verbal evidence to this Court, he never said he stopped, nor did he say that he helped the injured persons. His evidence was that after the trailer hit the motorbike, he continued to drive, never stopping. Cross-examination also revealed that after the accident, he never reported the matter to the police until some 3 months later when the police arrested him and conducted the record of interview.

iii	Marko Moniko: He is the second witness for Samson Oumba. He said that day, he saw one motorbike drive past whilst he was standing on the road with another person. He then saw another motorbike speed up, then travel to the other lane because of potholes. At the same time, he saw the truck travelling down. It was not speeding and was loaded with coffee. He said there were lots of potholes on the lane which the motorbike drove on. However, there were no potholes on the lane the truck travelled on.

	At the end of the cross examination when asked where the boys were lying after the accident, the witness said they were on the side of the road where they were driving up.

	This witness did not give evidence during Samson Oumba’s trial in the District Court.

iv	Alphonse Beni: He said on 30th June, 2002, from where he was standing, he heard a lot of noise so he went down to the road. He saw one boy lying in the middle of the road and the other was with the motorbike, off the road, on the other side. 

	In cross examination, he said he saw the motorbike in the bush, on his side of the road. He said he saw one expatriate boy in the middle of the road. He said that the boy fell where there were white marks in the middle of the road. He also said that where the truck was travelling, there were no potholes but there were potholes on the left side of the road.

	This witness did not give evidence during Samson Oumba’s trial in the District Court.

D.	Analysis of evidence and the law, on liability

21.	It is not disputed that a finding on Samson Oumba’s degree of culpability was done by the District Court when it found that he was guilty of negligent driving, then convicted and sentenced. The District Court depositions which includes the Certificate of Conviction, were tendered into this Court.

Is that permitted by law?

22.	The Evidence Act chapter 48 provides for the tendering of Court Depositions and Court Orders which includes convictions. The relevant provisions are s. 45 – "convictions" and s.47 – "use of conviction".

23.	Section 47 is the relevant provision. It allows for the use of convictions in civil proceedings. Section 47(5) of the Evidence Act states that a conviction founded on criminal proceedings can be made conclusive evidence for the purposes of any other proceedings. The conviction in this case is in relation to dangerous driving causing grievous bodily harm. The learned Magistrate found on the evidence that the elements of this offence were proven beyond reasonable doubt, i.e that Samson Oumba drove a motor vehicle dangerously on a road, and caused grievous bodily harm to another person. This finding remains good to this day, not having been set aside or quashed on appeal because an appeal was never filed.

24.	The learned Magistrates’ reasons for decision, which were tendered as part of the District Court depositions, reviewed very carefully, Samson Oumba’s evidence where he said that he was driving on his side of the road when Mathew Westcott, whilst avoiding the potholes, drove his motorbike to Samson Oumba’s side of the road. That when he saw them, he tried to avoid them by steering the truck into the drain which then resulted in the back wheel of the trailer hitting the motorbike which was still coming around to Samson Oumba’s side of the road. However, the learned Magistrate also found that Samson Oumba had earlier, upon arrest, told the Police a different story in his Record of Interview with them, when he said;

•	that the truck he drove was white in colour when the evidence was that it was either brown or maroon;

•	That nothing happened when he travelled to Kamaliki;

•	That he was not involved in an accident that happened on 30th June, 2002 when a truck owned by East West Trucking Company was involved in a motor vehicle accident with a motorbike owned by the New Tribes Mission;

•	That a white Hino truck was involved in the accident;

•	That prior to the accident occurring, that he had driven past the first motorbike and that whilst looking in his rear vision mirror, he saw the second motorbike trying to avoid a pothole, then drive into the back of the Hino Truck.

25.	After hearing the parties, the learned Magistrate found on the evidence before him that there were more potholes on the lane that the truck travelled on and very few on the lane the motorbike travelled on. He found that the point of impact was on the lane the motorbike was using to travel into town and the truck’s wrong lane. That the truck was travelling on the wrong lane when he saw the bike coming towards him. That was when he swerved to avoid hitting it, however, the motorbike hit the back wheel of the long trailer which was still coming around to its correct side of the road and as a result, Mathew Westcott and Seth Emery were injured.

26.	That finding is consistent with the evidence given by Mathew Westcott and his witnesses. It is also consistent with the photographs taken immediately after the accident, which showed where the potholes are located as seen by Samson Oumba and Mathew Westcott. That evidence is very much enhanced by the fact that Samson Oumba’s two witnesses version of evidence are markedly different i.e. in relation to where Mathew Westcott was lying after the accident – Alphonse Beni said after the accident one expatriate boy was lying in the middle of the road where the white marks were. Photographs of the road taken immediately after the accident, show there were no white marks. Whereas Marko Meniko said the injured boys were lying on the side of the road that they drove up on. Alphonse Beni and Marko Meniko are clearly not witnesses of truth because they contradict each other to a very large extent.

27.	I find that the following facts have been proven;

i	Mathew Westcott, an American citizen was born on 31st July, 1984.

ii	The Second Defendant is a company trading as East West Transport.

iii	East West was at all material times the owner of a Kenworth Semi-Trailer, Registration No. AEE-522 (‘the truck’).

iv	Samson Oumba, at the time of the accident, was an employee of East West as a highway driver, and had been since May, 1974.

v	On Sunday, 30th June, 2002, Samson Oumba, whilst in the course of his employment with East West, drove the truck on the Okuk Highway from Goroka in the direction of Kainantu.

vi	At the same time, Mathew Westcott, whilst riding his Honda XR 250 cc motorbike, was travelling on the Okuk Highway from the New Tribes Mission towards Goroka.

vii	Mathew Westcott had a pillion passenger with him.

viii	At Kamaliki, there is a bend in the road, to the left as Mathew Westcott approached it, and to the right from Samson Oumba’s approach.

ix	As Samson Oumba approached the bend at Kamaliki, he was travelling downhill.

x	As Mathew Westcott approached the bend, he was travelling up hill.

xi	Approaching the bend, from either direction, visibility of the road ahead was obstructed by long grass and other vegetation.

xii	Between 9:00 and 9:30 am that same day, a collision occurred at or near the Kamaliki bend involving the truck and the motorbike, travelling in opposite directions.

xiii	The collision caused Mathew Westcott and his passenger to be thrown from the motorbike and suffer serious personal injuries.

xiv	Prior to the accident occurring, the truck was travelling very fast downhill.

xv	In its attempts to avoid the potholes, the truck drove into the lane on which the motorbike was travelling.

xvi	On seeing the motorbike, the truck veered suddenly to the right. Whilst it was still turning, its trailer was still on the left lane.

xvii	The motorbike did not see the truck until it was swerving. It could not avoid the trailer because if he had gone further to the side of the road, he would have driven off the road into the kunai grass. Because the truck was travelling very fast, and although having already turned into his lane, the long trailer on which were bags of coffee beans, carried by the momentum of the sudden turn, was still turning. As a result, it was still on the motorbike’s lane when the side of the trailer hit the motorbike.

28. Although it is not necessary for me to consider the evidence in relation to Samson Oumba’s claims for contributory negligence by Mathew Westcott, because of the District Court’s findings, I will do so only because Samson Oumba’s lawyers had objected to the tendering of the District Court depositions, which I overruled. I deal with each claim of contributory negligence as pleaded in Samson Oumba’s Defence.

i	Failing to confine the course of his motorbike to the left hand half of the roadway;

•	The good evidence is that Mathew Westcott was driving on his lane. It was Samson Oumba who, whilst driving downhill very fast on the wrong lane, had to suddenly veer to the right, to his lane, to avoid colliding with the motorbike and it was the back wheel of the trailer, that was still turning, following the truck, that hit the motorbike.

ii	Failing to drive his motorbike on the left hand side of the roadway when meeting or approaching another vehicle;

•	The good evidence is that the motorbike was on its correct lane when the accident occurred, i.e the left lane.

iii	Driving on the right hand side of the roadway without making sure that there was clear view of the roadway for a safe distance;

•	The good evidence is that the motorbike was on its correct lane, i.e the left lane.

iv	Attempting an improper and unsafe manoeuvre on the highway;

•	The good evidence is that the motorbike was travelling normally and not erratically or irresponsibly as claimed by Samson Oumba.

v	Failing to give any or any adequate warning to the other driver by sounding the horn of his motorbike;

-	The good evidence is that the motorbike need not have sounded its horn. Even then, realistically speaking, a driver in a large truck could not have heard the horn of a motorbike. The truck did see the motorbike and did veer to its correct lane but the trailer, which was on the wrong lane, struck the motorbike.

vi	Driving the motorbike on the highway when his ability to drive was impaired by fatigue;

-	There is no evidence from Samson Oumba, of Mathew Westcott suffering from fatigue.

vii	Driving a motorbike at an excessive rate of speed or in the alternative, at a rate of speed, which was excessive in the circumstances;

-	The good evidence is that the motorbike was travelling at 30km per hour.

viii	Failing to keep a proper or any lookout;

-	The good evidence is that Mathew Westcott saw the truck travelling on his lane and so he started turning as far left as he could.

ix	Failing to take reasonable and proper steps to avoid the accident in the circumstances;

-	The good evidence contradicts that.

x	Failing to direct the course of his motorbike so as to avoid the accident when it was or should have been apparent that an accident was likely;

-	The good evidence contradicts that.

xi	Driving the motorbike in an unsafe mechanical condition with defective brakes and steering mechanism;

-	There is no evidence that the motorbike was mechanically defective before the accident.

xii	Operating a motorbike on the highway without any or effective brakes or alternatively failing to apply the brakes in time to avoid the accident;

-	The good evidence contradicts that.

xiii	Disobeying the Motor Traffic Act and its regulations;

-	There is no evidence of that.

xiv	Travelling without due care and attention and without reasonable consideration for other road users using the highway;

-	The good evidence contradicts that.

29. On the above findings, Mathew Westcott was not negligent in any way whilst riding his motorbike. The defence of contributory negligence raised by Samson Oumba in his Defence, does not hold, as it has not been proven on the balance of probabilities.

30. I find that Samson Oumba was totally negligent. As he was acting in the course of his employment at that time, there is no dispute that East West Transport is vicariously liable for his actions and that the MVIL is also liable.

General Damages

31. For the purposes of this decision, I set out in full the particulars of personal injuries as taken from the Statement of Claim, because they are relevant towards determining the amount of damages to be awarded and also because Order 8 Rule 3 of the National Court Rules (‘NCR’) requires that these particulars be specifically pleaded. These are;

"…

Further Particulars under Order 8 rule 3;

10. The Plaintiff suffered the following personal injuries:

a).	Multiple traumatic injuries including as referred to below;

b).	Compound fractures of the right femur, right tibia and fibula;

c).	Degloving injury to the muscles of the right leg;

d).	Fractures of the right hand including at the base of the 4th and 5th Metacarpals, and the head of the 5th Metacarpal;

e).	Shock;

f).	Various grazes and bruises.

11. The Plaintiff received the following treatment:

b).	Resuscitation with intravenous fluid and oxygen;

c).	Cleansing and debriding of the wounds to his right leg;

d).	Medivac from Goroka to Cairns Base Hospital;

e).	Surgery to the right leg including insertion of a retrograde femoral nail and anterograde tibial nails;

f).	Blood transfusion;

g).	Antibiotics and treatment for wound infection;

h).	Transfer from Cairns to Royal Brisbane Hospital;

i).	Plastic surgery to close the large skin defect to the right leg;

j).	Various x-rays, examinations, scans and tests;

k).	Physiotherapy and occupational therapy in America;

l).	Aggressive Physical Therapy;

m).	Compression;

n).	Mederma;

o).	Orthopaedic Manipulations; and

p).	Severe bone infection in tibia resulting in surgery for removal of tibia rod.

12. The Plaintiff suffered the following permanent injuries:

a.	Pain and reduction of mobility and use of the right leg;

b.	Very severe and unsightly scarring to the right leg;

c.	Scarring from donor sites of skin grafts;

d.	Risk of developing arthritis of the hip, knee and ankle;

e.	Pain and reduction of use of the right wrist and hand;

f.	Risk of arthritis in the wrist and hand.

13. The Plaintiff was a student at the time of the accident and was not employed in the preceding twelve month.

14. The Plaintiff has suffered a loss of future earning capacity. Particulars of such loss will be provided as and when they become available.

15. As a consequence of the matters referred to, the Plaintiff has incurred medical, hospital and other expenses. Details of out-of-pocket expenses will be provided. To date, known expenses are approximately PNGK2,151.50, AUD$5,769.08 and USD$62,702.31.

16. As a further consequence of the matters referred to, the Plaintiff may incur further expenses for medical and other treatment, particulars of which will be provided as and when the same become available. To date, the Plaintiff is likely to require surgery for removal of insertions in his right leg. He is likely to require further physiotherapy and occupational therapy. He may require a bone graft to his right ankle. He may also require further cosmetic surgery.

17. The Plaintiff has required, and may require in future, assistance in carrying out his daily functions, some of which assistance has been, and will be, provided gratuitously. The Plaintiff claims a commercial rate in respect of all such services.

18. The Plaintiff alleges that as a result of the incident, he has incurred costs for food and other necessities in Australia and the United States of America, which average higher than the normal costs in Papua New Guinea, particulars of which will be provided before trial

19. ….

20. Insofar as his claim against the First Defendant exceeds the First Defendant’s monetary liability under Section 49(2) of the Act, the Plaintiff makes a claim against the Second and Third Defendants under Section 54(5) of the Act.

THE PLAINTIFF CLAIMS:

a.	Damages;

b.	Interest on damages under the Judicial Proceedings (Interest on Debts and Damages) Act, Chapter 52;

c.	Such further or other order as the Court considers appropriate;

d.	Costs."

A. Issues

	The issues to be determined by this Court in relation to damages are as follows;

i	Whether or not, Samson Oumba and East West are liable for any extra amount where they deny liability and where damages were not assessed for the sum agreed on a "without admission of liability basis" between the plaintiff and the MVIL?

ii	Whether or not, Mathew Westcott is entitled to an award of damages against Samson Oumba and East West?

iii	Whether or not, Mathew Westcott suffered some personal injuries requiring medical treatment and whether he suffered any permanent injuries?

iv	Whether or not, the injuries suffered by Mathew Westcott will affect his future earning capacity?

v	The amount of general damages, under each head of damages, to be awarded in favour of Mathew Westcott against all defendants.

vi	Whether or not, Mathew Westcott will incur any future medical expenses in relation to the injuries he sustained?

vii	Whether or not, Mathew Westcott required and will require assistance in carrying out daily functions?

viii	Whether the award (if any), should be reduced and if so, by how much, for contributory negligence?

ix	The amount (if any) for interest on damages.

x	The award of costs.

	I discuss each issue as related to the evidence before me and will also form conclusions as I go.

Issue no. i - Whether or not Samson Oumba and East West are liable for any extra amount where they deny liability and where damages were not assessed for the sum agreed on a "without admission of liability basis" between the plaintiff and the MVIL?

	The MVIL’s limit of liability is K150,000.00 (plus interest and costs). The plaintiff is entitled at law to claim the excess against the owner and driver of the insured vehicle. Although the plaintiff has settled his claim against the MVIL on a without admission of liability basis, that this does not preclude him from pursuing his claim against the second and third defendants. He has not done anything to discontinue the action or done anything to prejudice his rights to claim the excess (to distinguish with Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363).

	I will proceed or have proceeded to determine liability. As to quantum, if the amount to be awarded exceeds the settlement of K172,979.45, between the plaintiff and the MVIL, bearing in mind the statutory maximum of K150,000.00, then the excess will be awarded against the second and third defendants.

Issue no. ii - Whether or not Mathew Westcott is entitled to an award of damages against Samson Oumba and East West?

He will be or is entitled to the excess.

Issue no. iii- Whether or not, Mathew Westcott suffered some personal injuries requiring medical treatment and whether he suffered any permanent injuries?

	The plaintiff suffered a very severe injury to his right leg and was lucky not to lose it. That injury is so severe that it tends to overshadow other significant injuries such as broken bones in his right hand.

	The plaintiff was treated under general anaesthesia in Goroka. He was taken to Cairns where his orthopaedic injuries were further treated under general anaesthesia. Four days later he was taken to Royal Brisbane Hospital where he remained for more than six weeks. There he underwent skin grafting and suffered intense pain. (See the photographs, Exhibit C.)

	In the United States, the plaintiff underwent ten months of physiotherapy. Again, he experienced intense pain, this time trying to get movement back into his knee. He underwent an operation to manipulate his knee in October 2002. He underwent two operations in June 2003 for infection. He underwent another operation for infection in February 2006.

	The plaintiff effectively lost a year of his life. Unfortunately, he is left with permanent injuries. He has pain from prolonged sitting or standing. He has early osteoarthritis. This is likely to get worse. Dr Betuela said that chronic osteoarthritis at an early age is likely. He expects the plaintiff has only 40 years, instead of 65, as a physiotherapist. There is also the high risk of further infection.

	As well as the above, the plaintiff is left with a serious permanent disfigurement.

	The photographs put before me and marked as Exhibit C, are very graphic. They show a leg that is split open in front from one end to the other held only by a piece of skin between the knee and groin. It is indeed a miracle that the plaintiff’s leg was saved and one can only relate that to the medical treatment he received, of course, not forgetting the expenses incurred.

	A medical report by the New Tribes Mission prepared by Dr. Kevin D. Ludwig, Medical Director, dated 12th August, 2002 which was part of the District Court Depositions handed up to me as an exhibit, describes Mathew Westcott’s injuries as follows;

"Mr Mathew Westcott was involved in a motor vehicle accident on 30th June, 2002 where the motorbike on which he was riding was apparently struck by a truck. He incurred multiple traumatic injuries, including a compound fracture of the right femur and right tibia and fibula as well as a fracture of the right hand. Immediately, following the accident, he was 100% disabled and remained 100% disabled until approximately 5 weeks later, when he was about 90% disabled. He remains about 90% disabled at this time and will remain at this level of disability for approximately another 10 weeks. I expect him to have a permanent disability of 20-30%."

	Mathew Westcott was later reviewed on 18th June, 2004 by Dr. Betuela, Specialist Physician of the IM Associates Ltd Medical & Consultancy Services. 

	His full name is Inoni Betuela. He is a Specialist Physician. He commenced practicing as a doctor in 1986 after having graduated with a Degree in Medicine from the University of Papua New Guinea. He spent 3 ½ years at Oxford England and is a specialist in orthopaedic and general medicine. 

	He confirmed having reviewed Mathew Westcott on 18th June, 2004. He said he noticed some changes which are that the plaintiff has regained some power, and muscles to the bulk of his leg. His report of 18th June, 2004 is as follows;

"He sustained multiple broken bones (fractures) on the right leg and hand. The fractures involved the femur, the tibia and fibula and 4th and 5th finger of the right hand. The right leg had multiple compound fractures (Broken bone sticking out of the skin). He was referred from Goroka Base Hospital to Australia for Specialist Surgical treatment. During the recovery period, he had infection of the femur where the metal rod was placed to hold the broken ends together. The rod remains there to this day. There was further surgery to remove the metal and antibiotic treatment was inserted into the bone to treat the infection. He is right handed, now in his first year of studies to become a physiotherapist.

From the history, he complains of the following symptoms;

1.	Tiredness and easily fatigued when standing;

2.	Swelling of the right knee and ankle after standing and playing sports;

3.	Unable to carry heavy loads;

4.	Back spasms and soreness when getting out of bed after sleeping.

5.	Dorsal (upwards) contraction of the right toes, squeezing the feet in the shoes.

6.	Painful right knee on bending forward.

7.	The right knee becomes unstable on lifting.

8.	Right hand becomes painful on hand shaking.

9.	Unable to deviate the right hand fully to the ulnar side.

10.	Tightness of the 4th and 5th fingers.

11.	Unable to continue athletics as his sport. He was the athlete of the year at high school.

12.	Worries about the disfigurement of the right leg.

13.	Does not show the leg in public or unfamiliar surroundings.

14.	Worry of the possibility of reinfection of the bones while the metal pins are still inside the bones as there was foul smelling pus pouring out of the bone when the metal rod was removed.

15.	Has to take pain medications like ibuprofen after playing sports.

16.	He lost 30 pounds during the recovery period.

17.	He is well aware of the financial strain placed on his family and the long term prospects of being disabled by osteoarthritis.

On examination, he was a cheerful young man. He was unable to lift the right leg completely off the ground when walking. It swings around the body when walking forward. His blood pressure was 100/70 mmHg, a pulse of 70/min, respiratory rate of 15/min and was a febrile.

He has obvious scars over the lateral aspect of the upper right thigh, the knee joint and the calf muscles. The thigh muscles on the right side were wasted and had reduced tone. There was a 26 x 4cm longitudinal deep scarred area over the right thigh, with superficial scarring left by the donor skin grafted site. He had several hypertrophied dark scar tissue across the right knee joint. The calf muscles were taken to graft the wound on the thigh leaving a deep healed scar on the right leg. He had reduced sensation to touch over the grafted areas of the skin and muscles. There was about 1cm shortening of the right leg compared to the left side.

His right hand had deformity when making a fist. There is weakness of grip of the 4th and 5th fingers with the thumb. He is unable to move the right hand fully to the ulnar side. There is palmer skin contraction of the 4th and 5th fingers.

There were no other deformities detected and the rest of the examination was normal.

The permanent disabilities up to this date are the scarred right thigh, knee, calf and the healed areas of the broken femur, tibia and fibula with 1cm shortening of the right leg. He has lost the superficial veins and muscle power needed to drain the blood and fluids of the right leg. The restriction of movement and change of posturing as a result of the current disabilities will lead later on in life, to long term changes of the joints and cause osteoarthritis (Inflammation of the bones and tissues surrounding the joints) of the back bones, pelvic, hip and right knee joints. These will be permanent disabilities. He has taken up physiotherapy because of the future complications that he was made aware of and gave up his dream career in computing. I recommend that he wear orthopedically designed shoes to assist in reducing the long term effects leading to the osteoarthritis."

	Dr Betuela told the Court that he re-examined Mathew Westcott in November 2007, just before the trial. He told the Court that Mathew Westcott previously suffers from a recurrent knee infection in his right knee and has continuous pain over the right knee. This occurs when he stands and sits for long periods.

	In relation to the likelihood of further recurrent infection, Dr Betuela told the Court that there is a metal rod in Mathew Westcott’s right femur. The tissue there is now damaged and is prone to recurrent infections. This is because he has and must have several manipulations done to his knee which will see the introduction of fluid into the infection in the right knee when it is supposed to be a closed area.

	In terms of the introduction of drugs into his right knee, Dr Betuela told the Court that this must be done through lavage which is a drip with antibiotics that must be pushed through his knee cavity then out through an outlet. The fluid will wash the infection in the cavity and then come out through the outlet. This is all done under a sterile procedure which is why he is prone to further infections. The doctor told the Court that this must be done in a sterile area, and a hospital is the only appropriate avenue.

	In relation to the frequency of recurrent infections, Dr Betuela told the Court that it is difficult to say when it will recur. But in terms of probability, the doctor told the Court that he is more prone to re-infections than the normal person.

	As to how long he will be in hospital for this treatment, the doctor’s evidence is that this depends on the severity of the infection. Mathew Westcott must also continue on antibiotics. Furthermore, he must remain in hospital for a week for the puncture wound to heal.

	In relation to the metal rod in his knee, the doctor told the Court that it will be removed sometime but that it is an orthopaedic surgeon’s decision. He told the Court that this depends on the stability of the healing process and how well healing has taken place over the years. He told the Court also that whilst the rod is in place, it becomes part of the bone. When it is removed, it will produce a weakness and that is also dependent on the healing process.

	He told the Court that the rod is located in the upper leg and that osteoarthritis will most likely occur there. Pain in the leg is a signal that something is wrong and that the patient must take precaution or receive treatment and this is confirmed by the pain already occurring and recurring in the right knee.

	As to what is osteoarthritis, the doctor described this in his report of 18th June, 2004. I set it out below;

"Osteoarthritis is along term permanent change of the bones, tendons, ligaments and the soft tissues of the joints involved. There is swelling of these structures which over time cause erosion of the bones and tendons and increase in thickness of the surrounding soft tissue. The end result is a still, swollen and painful joint which gets worse every time there is movement of the joint. This has a secondary effect on the groups of muscles connected to the joint causing wasting of the muscles, a condition called disuse atrophy (Loss of muscle bulk from lack of movement). This condition has already occurred in Mathew’s right thigh muscles. The loss of power in the muscles compounds the injury to the joints. There is a possibility of him using crutches or being wheelchair bound in his old age to reduce pain and suffering. 

Osteomyelitis is inflammation of the bone due to bacterial infection. It can be acute or chronic depending on the duration of the existing infection. The chronic type can cause deformity of the bone or part of the bone can die becoming a foreign body which has to be removed or become a recurrent infection. It is a very painful and disabling illness. It takes a long time to treat this infection.

The following percentage value on the disability and loss of function of the affected parts of the body and quality of life are noted;

1. Right leg – 80% loss

He has intermittent pain and has developed arthritis (inflammation of the bone and surrounding tissues) of the right hip, knee and ankle joints. There is swelling of the leg due to poor venous drainage and can lead to venous ulcers in old age. The conditions are recurrent and can cause difficulty in walking, playing sports and any form of manual activity. He can not take up athletics and contact sports or lift and carry heavy loads. It may affect his sex life and marriage in the future. It will get worse later on in life and the percentage loss will increase.

2. Right leg shortening – 100% change

The multiple broken areas of the bone when healed, contract, pulling the right leg shorter than the left. He is unable to lift and carry heavy loads and cannot kneel down for long periods because of the instability caused by the shortening. The change in the centre of gravity will lead to changes in the mechanics of movement gradually causing chronic osteoarthritis of all the joints involved.

3. Scarring of skin and muscles – 50% loss

There are deep scars and has reduced sensation over them. The scars will affect the flexibility of the right leg when they contract leading to stiffness and pain. The raw nerve endings may become hypersensitive at later stages of life. He has problems wearing shorts due to the scars. It will affect his social activities and male sexuality.

4. Quality of life, pain and loss of full use of the right leg – 60% loss

He is right handed and needs the right leg to carry out most activities in life. The disabilities from osteoarthritis will get worse in the future. He is likely to suffer from painful joint after each working day ends as the disabilities get worse throughout his life.

5. Osteomyelitis (Inflammation of the bone) – 25%

He had pus in the bones from infection due to the metal rods and the compound fractures. There is likelihood of recurrent infections while the metals are in the bones acting as foreign bodies leading to chronic osteomyelities.

6. Psychological trauma – 40%

The accident, multiple surgical operations, bone infection, and the ugly scarred right leg will have a long term on his ability to cope with the stresses of life. Even though at present most of it is shared by the family.

The overall prognosis is good but will be restricted to activities in life that do not depend on the full use of the right leg."

	The doctor told the Court that this ailment is recurrent because of the nature of the joint, therefore inflammation will continue. He told the Court that over time, it becomes either acute or chronic. In relation to acute osteoarthritis, he explained that this disability changes over time. In relation to chronic osteoarthritis, he explained that this is a life long problem.

	He also explained that because of the nature of the wear and tear on his leg, that Mathew Westcott is more prone to joint problems as he reaches old age.

	In relation to whether Mathew Westcott is suffering from osteoarthritis or not, the doctor explained that the process has already begun and will get worse over time. He explained that as the body starts to slow down, the problem becomes more pronounced. He also explained that when he first saw Mathew Westcott at the age of 19, the injuries were fresh. At 23, he is already experiencing a lot of pain. He explained that at 35 to 40, the osteoarthritis will become more pronounced and which is also compounded by the fact that there is not a lot of muscles to support his right knee.

	In relation to osteoarthritis of his knee, the doctor explained that the shortening of his right leg leads to mechanical instability. One problem often leads to another. Because the body weight is placed on other parts of the joints not involved, the other joints often become painful because of that.

Issue no.iv – Whether or not, the injuries suffered by Mathew Westcott will affect his future earning capacity?

	Mathew Westcott gave evidence that he wanted to be a physiotherapist. Dr. Betuela explained that physiotherapy involves manipulation of the body to obtain relief. That Mathew Westcott will need mobility to posture himself because he already has difficulty when attempting to fully bend his right knee, that he is already limited in his activities. Osteoarthritis, will severely affect his work. 

	The doctor also said that at 35-40 years, he can still continue to do the work of a physiotherapist as long as he did not do running jobs or standing for too long. That he could be based in a gymnasium to alleviate that problem but he will still have limitations. 

	The doctor also said that there is a high possibility that he will retire early. He said this will all depend on the deterioration of the structure of the knee like changing posture and manoeuvring. He said the treatment for osteoarthritis is bed rest and physiotherapy so there is a balance.

	In relation to retirement, the doctor told the Court that this is dependent on how much he uses his knee in his line of work. But there is a higher risk of early retirement then if he was normal.

	As to what age he would be expected to retire, the doctor said about 40.

	As to his loss of future earnings, the evidence is that the plaintiff will suffer future loss of income for various reasons as pointed out above, being future surgery interrupting his employment; inability to undertake all aspects of physiotherapy making him less employable; shortening of working life as a physiotherapist and early retirement. This is confirmed by the evidence of Dr Betuela which I have already reviewed. At US$29,000.00 per annum for the next 10 years, which I assume is how long he will be employed for, bearing in mind that he may work longer than that or even, for a shorter period then 10 years, and the risk of early retirement as a result of his disabilities. This is calculated to be US$290,000.00.

Issue no. v – The amount of damages (if any), under each head of damages, to be awarded in favour of Mathew Westcott against all defendants.

General damages - The amount for general damages, for pain, suffering and loss of enjoyment of life is considered and various amounts awarded.

	The evidence before the Court is that the plaintiff suffered extensive and excruciating pain over a long period of time, immediately after the accident and thereafter. 

i. Pain and suffering – I have already discussed and referred to the evidence in relation to photographs of the plaintiff’s broken leg immediately after the accident, during the period the plaintiff was hospitalized and after. I set out in summary form, what I find to be the evidence on pain and suffering - 

•	multiple traumatic injuries;

•	compound fractures of the right femur, right tibia and fibula;

•	degloving injury to the muscles of the right leg;

•	fractures of the right hand including at the base of the 4th and 5th metacarpals and the head of the 5th metacarpals;

•	shock;

•	various grazes and bruises.

This was followed by treatment at the Goroka Base Hospital where he was resuscitated with intravenous fluid and oxygen. His wounds were cleaned and debridged and he was medivaced to Cairns, Australia.

He was admitted to the Cairns Base Hospital and given the following treatment - 

•	surgery was performed on his right leg and a retrograde femoral nail and anterograde tibia nails were inserted;

•	Blood transfusion;

•	Antibiotics were given and treatment was applied for injection to the wounds;

After a few days at the Cairns Base Hospital, he was transferred to the Royal Brisbane Hospital were he received the following treatment -

•	plastic surgery to close the large skin deficit in the right leg;

•	various x-rays, examinations, scans and tests were done;

•	antibiotics and pain killers were given.

After discharge from the Royal Brisbane Hospital and after some weeks of rest and recovery in Australia, the plaintiff left for the United States of America when he received the following -

•	He continued to rest and recover.

•	He engaged in physiotherapy, occupational therapy and aggressive physical therapy.

•	Compression.

•	Medrma.

•	Orthopaedic manipulations.

•	The tibia nails were removed due to severe bone infection.

He continues to suffer because of the permanent injuries and disabilities he has which are;

•	Pain and reduction of mobility and use of the right leg.

•	Very severe and unsightly scarring to the right leg.

•	Scarring from donor sights of skin grafts.

•	Development of arthritis of the hip, knee and ankle.

•	Pain and reduction of use of the right wrist and hand.

•	Arthritis in the wrist and hand.

ii. Loss of enjoyment of life – The evidence is that the plaintiff enjoyed sports, participating in various sporting activities including soccer. The permanent disabilities have now left him completely at the mercy of medication and pain killers. He is now unable to participate in sports. He may not marry or if he does, his disabilities may affect the prospects of a long, happy marriage. He also will not participate in other activities which will require the full utilization of his arms, legs and generally, the body of a healthy, able-bodied person.

The evidence is that he must continue to take medication and pain killers and also continue to be reviewed which raises the possibility of him under-going further operations to correct the bodily defects and deformities he has.

iii. Quantum – In deciding on the appropriate amount to be awarded, I have had recourse to the following cases;

•	Bosip Oka v MVIL [2001] N2122

	The plaintiff suffered and sustained serious fractures to both his legs as a result of a motor vehicle accident. The left fracture was a compound fracture with tissue and bone loss. Repeated operations were carried out to correct and repair the bone and soft tissues.

	Permanent disabilities were assessed at 30% loss of efficient use of the left leg and 5% loss of efficient function of the right leg.

	The doctor’s conclusions were relied on by the trial judge which read in part;

"He has shortening of the right leg from overriding of fracture and as a result of incomplete reduction. He has screw and plating of the left tibia with bone graft of the fracture. He may remove the plates and screws some day if he wishes. I believe he has 40% permanent disability in terms of strength of tibia, ankle joint stiffness and cosmetic disfigurement of the right left. He has 2 ½ % permanent loss of skin and disfigurement."

	The medical report prepared by one Dr Allan Kulunga further stated that the shortening of the leg by 2 cm was insignificant to cause him any problems.

	General damages were assessed at K35,000.00.

	Comparing Bosip Oka’s injuries and disabilities to the plaintiffs, I note the following;

-	Apart from the fractures to the right tibia and fibula, the plaintiff also suffered fractures to the right femur and right metacarpal bones.

-	Apart from the fractures the plaintiff suffered, he also suffered other injuries referred to above which Bosip Oka did not suffer.

-	Bosip’s permanent disabilities are confined to the legs, in the right leg in a major way – 40%, and in the left leg, only 2 ½ % loss. The plaintiff suffers disability in his right leg, in one of the hands and a prognosis of osteoarthritis in the hip, knee, ankle, wrist and hand.

The similarities are that;

-	both suffered very severe injuries to the legs

-	both suffered very severe and unsightly scarring to the legs

-	both suffered major disabilities in one leg.

•	Pangis Toea v Motor Vehicles Insurance (PNG) Trust & The State [1986] PNGLR 294

After a motor vehicle accident, the plaintiff suffered leg and arm injuries which were a fracture to her left humerus, compound fracture of the left wrist, a fracture to the left femur, a fracture and dislocation of left hip and cut on her forehead. Her permanent disabilities included a totally useless and wasted left arm with a claw hand and 70% loss of the efficient use of her left leg with probability of future osteoarthritis.

General damages were assessed at K35,000.00.

Similar injuries and disabilities between the plaintiff and Pangis Toea are;

-	they both suffered fractures to a femur.

-	they both suffered fractures of their wrist bones.

-	they both have disabilities in their affected legs and hands.

-	they are both faced with the probability and risk of future arthritis – for Pangis in her hips and the plaintiff in his knee, hip, wrist and ankle.

-	The differences between the two cases are;

-	The plaintiff also suffered fractures of his right tibia and fibula whereas Pangis did not.

-	The plaintiff suffered multiple traumatic injuries together with various grazes and bruises whereas Pangis did not.

-	Pangis suffered a fracture and dislocation of the left hip whereas the plaintiff did not suffer any injuries to that part of the body.

-	The plaintiff suffered a degloving injury to the leg whereas Pangis suffered no such injury.

-	The plaintiff did not suffer a fracture of the humerus like Pangis did.

-	Pangis has a totally useless and wasted left arm whereas the plaintiff suffers a reduction in the use of the right wrist and hand.

-	The plaintiff suffers very severe and unsightly scarring to his right leg and scarring to donor sights for skin grafts. Pangis does not suffer from any scarring.

	Although, Pangis’ and the plaintiff’s injuries and the extent of the injuries and their disabilities differ, they basically suffered major injuries to a leg and hand and suffered disabilities there.

	Other cases that I also had recourse to are the following;

•	George Kiak v MVIT [1986] PNGLR 265

Magistrate Grade 1 – compound fracture of left leg – required built up shoe and walking stick to walk – permanent disability was 50% loss of efficient use of left leg which was almost amputated – K29,000.00 general damages.

•	Caedmon Koieba v MVIL [1984] PNGLR 365

Anglican priest – aged 46 at trial – fracture of mid shaft of right femur – shortening of leg – K19,000.00 for pain, suffering and loss of amenities.

•	Roth v Ok Tedi Mining Limited (1998) N1788

Fall from ladder – damages – personal injuries – male electrician aged 47 at trial – fracture of the lower pole of the left knee – 20% to 30% permanent disability – cannot squat or kneel – pain walking – unable to play golf or table tennis – cannot work as an electrician – increased risk of secondary osteo-arthritis – chance of complete patellectomy. K38,600.00 general damages. 

•	Nelson Uro v The State (2001) N2056

Personal injuries – male carpenter – born in 1964 – motor vehicle accident – abrasions to head, abdomen and pelvis – fractured right femur – skeletal traction followed by reduction and K-nailing of the fractured femur – right leg might have shortened by a few centimetres – walks with distinct limp – major surgical scar on right thigh – muscle atrophy – 20% loss of efficient use of the left leg – general damages K20,000.00.

•	Shelley Kupo v MVIT (2002) N2282

Personal injuries – fracture of left tibia and fibula – dislocated left ankle joint – injuries to right foot – lacerations to face, elbow and foot – fractured limbs – trapped in cabin for several hours – distressed pain and suffering – nervous shock – 9% loss of efficient use of left foot – 30% loss of efficient use of right ankle – ugly scars on 75% of the right thigh – ugly scars on 90% of left leg – married working woman 36 years old – award K80,000.00 for general damages.

The fact that many of these cases were decided many years ago must also be taken into account. In Shelley Kupo, (supra) Salika J thought the injuries were comparable to those suffered in Ron Tipul v Moses Yere & Mt Hagen Golf Club (1996) N1648 where the award was K40,000.00 for general damages. His Honour said;

"In that regard taking into account the current economic situation in the country and the value of the currency now and the inflation level, I am prepared to go towards an amount double that awarded to Ron Tipul. In the circumstances, I award K80,000.00 for general damages."

Similarly, in Swingley v MVIT (2004) N2767, Batari.J said;

"…in Bea Maxie v The State (Unpublished National Court Judgment WS 028 of 1998) Kirriwom.J made the following observation;

…any award of damages today based on past precedents and comparable tables or figures without taking into account inflation would be grossly meaningless with the current inflation rate that has gone up almost at 90 degrees thus escalating prices of items well beyond the reach of income earners at all levels."

The devaluation of the kina no doubt has had a transcended effect on the economy of the country and the standard of living. Any award made now should sufficiently reflect that fact but it will not be the sole deciding factor. Each case must be decided on its facts and guided by current range of awards. These and other considerations will be taken into account by this Court in arriving at what might be considered a fair and just monetary award.

Considering the circumstances of this case including the plaintiff’s age, the severe and extensive pain and suffering occasioned upon him as a result of the injuries, permanent disfigurement suffered to his leg and future osteoarthritis, I find that the appropriate award under the circumstances is K90,000.00.

iv.	Interest on damages for pain and suffering, etc. – The law on interest is well settled. A plaintiff is entitled to interest as a form of compensation for being kept out of his money, which theoretically was due to him at the date of his injuries. Whether or not to award interest is a matter within the discretion of the Court. When exercising that discretion, the court has to have regard to the distinction between past or pre-judgment losses, which is from the date of the judgment onwards. The Supreme Court in Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 fixed the appropriate rate for calculation of interest in personal injuries claims at 8%. At the same time, the Court said the power to award interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act ch. 52 must be exercised according to the following principles;

•	Interest on special damages (including loss of wages) should be awarded from the date of the trial at half the appropriate rate, i.e 4%;

•	Interest on damages for pain and suffering and loss of amenities should be awarded at the appropriate rate from the date of the service of the Writ to the date of the trial;

•	No interest should be allowed on damages for loss of future earnings.

Therefore, interest for general damages of K90,000.00 will be calculated from the date of filing of the Writ of Summons and Statement of Claim on 17th March, 2004 to date of judgment on 29th October, 2008, a period of 4 years 7 months and 14 days, an amount of K33,236.71.

Special Damages 

The plaintiff claims past loss of income and out of pocket expenses. These are damages that he claims in his Writ of Summons and Statement of Claim at par. No.15. The plaintiff’s particulars of his out of pocket expenses is before me, which are expenses incurred and related to the injuries sustained during the period 30th June, 2002 to 19th March, 2007. These expenses are all detailed and related.

i	Past loss of income – The plaintiff submits that he has lost a year of income at the rate of approximately US$29,000.00 per annum (net of tax). This is based on the evidence that he would have commenced work if it were not for the accident. The defendants accept that.

The award of damages will be in the currency in which the loss was sustained, which in this case is US$29,000.00 per annum (see Vevehupa v MVIT [1983] PNGLR 343).

ii	Interest on past loss of income – Interest on past loss of income at US$2,320.00 for 1 year at 4% per annum is calculated from 17th March, 2004 (date of filing of Writ) to date of judgment on 31st October, 2008, a period of 4 years, 7 months and 14 days is US$ K645.92.

iii	Out of pocket expenses – The plaintiff tendered into Court a table of his expenses from 2002 through to 19th March, 2007, which was marked exhibit "D". The defendants do not take issue with the claim of K2,212.47 and AUD$5,705.36. However, they dispute the claim for US$73,909.99, more particularly, the costs of a computer and printer, accommodation expenses and food.

The plaintiff’s evidence through his father is that all expenses claimed are consequent upon his (the plaintiff’s) injuries. The plaintiff had to be accommodated to then have access to treatment, and he had to have family members with him for support. The rental expenses were incurred as a result and are recoverable. 

I accept that not all the expenses listed are or may be associated with the treatment and care of the plaintiff. But this must be balanced against the fact that, by the time a decision is handed down in this matter, monies expended as out of pocket expenses for the plaintiff will be over and above the amount claimed. I find that a sum of US$50,000.00 is reasonable under the circumstances.

The plaintiff shall also have his claims for K2,212.47 and AUD$5,705.36.

iv.	Gratuitous Care – The commercial value of gratuitous care is recoverable where it would have been reasonable to incur that expense. 

(see Colbert v The State [1988-89] PNGLR 590; Vevehupa v MVIT [1983] PNGLR 343 (NC); [1984] PNGLR 224 (SC)).

The evidence is that the plaintiff was provided with 17 hours per week care for 3 weeks valued at US$15.00 per hour = US$765.00. He then had 10 years per week for 8 weeks = US$1,200.00. He had 17 years per week for 4 weeks in June/July, US$1,020.00. The remainder of the time undergoing physiotherapy, about 35 weeks, he required 5 hours per week, US$2,625.00.

I will award the amount claimed of US$5,610.00.

xi.	Interest on past gratuitous care – This is calculated at 4% over 4 years, 7 months and 12 days is US$1,035.88.

Issue No. vi – Whether or not Mathew Westcott will incur future medical expenses in relation to the injuries he sustained?

The plaintiff gave evidence on future expenses to be incurred. Although Samson Oumba and East West’s lawyers handed up a document titled "Objections to Invoices and Receipts Unrelated to Plaintiff’s Medical Expenses", responding to the plaintiff’s evidence on expenses incurred and to be incurred, they did not pursue it any further advising the Court that they would not do so.

In relation to future expenses to be incurred, the plaintiff’s evidence is that he will require ongoing medical treatment to curtail the spread and development of the serious and debilitating disabilities which I have already discussed. He will require treatment as follows;

iv	To remove steel rod – US$40,087.00

v	To correct hammer toes – US$6,518.00 to US$ 7,518.00 excluding medical centre fees

vi	Future plastic surgery – US$44,000.00

vii	Compression stockings over 10 years – US$2,800.00

His evidence is that he will continue to incur expenses in relation to further and future medical treatment. That is not denied and Dr Betuela’s evidence confirms that. Therefore, I find that a reasonable award is US$100,000.00 which does not in anyway compensate for the fact that over time, the cost of medical treatment will increase and the complications and disabilities to be suffered by Mathew Westcott, will also increase.

Issue vii - Whether or not Mathew Westcott required and will require assistance in carrying out daily functions?

I have already answered this is my reasons, that the plaintiff required and will require assistance in carrying out daily functions. These daily functions are in relation to everything from walking to sitting to lifting things and to lying down.

Issue viii – Whether or not, Mathew Westcott is entitled to an award of damages against Samson Oumba and East West?

The maximum liability under the MVIL Act is K150,000.00. Samson Oumba and East West are both liable for the excess amount. Set out below in table form are the monies to be paid.

			Expenses		
		PNG Kina	US Dollars	AUD Dollars	
1.	-General Damages	K90,000.00			
	-Interest on General Damages	K33,236.71			
					
2.	Loss of future earning capacity		US$290,000.00		
					
3.	Special Damages				
	- Past loss of income		US$29,000.00		
	- Interest on past loss of income
		US$ 645.92		
	- Out of pocket expenses	K 2,212.47	US$50,000.00	AUD$5,705.36	
	- Past Gratuitous care		US$ 5,610.00		
	- Interest on past Gratuitous care		US$ 1,035.88		
					
4.	Future medical expenses		US$100,000.00		
		PNGK125,449.18	US$476,291.80	AUD$5,705.36	

Judgment is awarded against the MVIL in the amount of K125,449.18 which amount has already been paid.

Judgment is also awarded against Samson Oumba and East West of which East West will pay as it is vicariously liable for Samson Oumba’s actions. East West will pay the plaintiff the excess amount of US$476,291.80 and AUD$5,705.36.

In relation to costs, the defendants shall pay the plaintiff’s costs of these proceedings. I also certify the appearance of Southern Counsel as his assistance and contribution was invaluable to the Court.

Judgment is entered against Samson Oumba and East West in the separate amounts of US$476,291.80 and AUD$5,705.36. 

__________________________________
Stevens Lawyers: Lawyer for the plaintiff
Warner Shand Lawyers: Lawyer for the second and third defendants