N4105
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 1620 OF 2006

ROBIN TAKURA
Plaintiff

V

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Cannings J

Kimbe: 10 September 2009,
Madang: 25 September 2009,
Kimbe: 9 April 2010

NEGLIGENCE – whether the plaintiff proved on the balance of probabilities that the driver of the insured vehicle was negligent.

EVIDENCE – whether oral evidence consistent with pleadings – whether the court is able to make findings of fact based on evidence that is not consistent with pleadings.

DAMAGES – measure of – personal injuries – shoulder/arm/hand injury: 40% loss of efficient use – economic loss.

The plaintiff was injured in a motor vehicle incident. The defendant insurer denied liability on the ground that the plaintiff had not established that the driver of the insured vehicle was negligent; because the plaintiff's evidence of the incident was not supported by the pleadings and was unreliable. The defendant also argued that in the event that the court found it liable, the amount of damages claimed by the plaintiff was excessive.

Held:

(1)	The plaintiff's evidence was not inconsistent with the pleadings and was sufficient to prove, on the balance of probabilities, that his version of events was correct and that the driver of the insured vehicle was negligent.

(2)	The plaintiff succeeded in establishing a cause of action in negligence against the driver of the insured vehicle. The defendant insurer was therefore liable to pay damages to the plaintiff.

(3)	Damages were assessed as: general damages of K30,000.00, economic loss of K8,000.00, special damages of K328.00, total damages of K38,328.00; in addition interest of K28,822.66 was awarded; the total judgment sum being K67,150.66.

Cases cited

The following cases are cited in the judgment:

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24
Kembo Tirima v Angau Memorial Hospital Board (2006) N3106
Michael Kunumb v The State (2008) N3480
MVIT v James Pupune [1993] PNGLR 370
MVIT v John Etape [1994] PNGLR 596
Nali Matabe v The State [1988] PNGLR 309
Peter Kuriti v The State [1988-89] PNGLR 633
Rom Tinpul v Moses Yere [1998] PNGLR 582
Swingley Oni v MVIT (2004) N2767

TRIAL

This was a trial on liability and damages.

Counsel

L Karre, for the plaintiff
M Pokia, for the defendant

9 April, 2010

1. CANNINGS J: The plaintiff, Robin Takura, was injured in a motor vehicle accident at Buvussi, on the Kimbe-Bialla Highway, on 16 November 2000. He was a passenger in a PMV, a Mitsubishi truck, which was travelling in the direction of Bialla, not far behind a Toyota utility. He was sitting on the tray, behind the cabin, when there was a collision between the truck and the utility. The truck ran off the road and the plaintiff was thrown off the vehicle and injured. He suffered a broken arm, which he says is a permanent injury.

2. He has sued the defendant, Motor Vehicles Insurance Limited (MVIL), claiming damages for the alleged negligence of the utility driver. MVIL denies liability on the ground that the plaintiff has not established that the driver of the utility was negligent; because the plaintiff's evidence of the incident was not supported by the pleadings and was unreliable. MVIL argues that in the event that the court finds it liable, the amount of damages claimed by the plaintiff (K68,895.00) is excessive.

3. The issues are:

1	has the plaintiff proven that the utility driver was negligent?; and

2	is MVIL liable?; and

3	if MVIL is liable – what damages is the plaintiff entitled to?

1 HAS THE PLAINTIFF PROVEN THAT THE UTILITY DRIVER WAS NEGLIGENT?

4. Mr Pokia, for MVIL, submits that this is a case in which the evidence about how the collision occurred is not supported by the pleadings. He relies on cases such as MVIT v James Pupune [1993] PNGLR 370 and MVIT v John Etape [1994] PNGLR 596 which say that a party cannot lead evidence in a trial on matters he has not pleaded. I agree that those are the relevant principles of law but has the plaintiff offended against them?

5. In his statement of claim the plaintiff pleads the details of the utility driver's negligence as follows:

At the time and place aforesaid another vehicle [vehicle 2: the utility] … travelling in the same direction as vehicle 1 [the truck on which the plaintiff was a passenger] … without warning made a U-turn and consequently collided into vehicle 1 which was travelling behind it …

The driver of vehicle 2 had a duty of care towards road users to exercise proper control over the said vehicle and not to endanger the lives of others by taking a risk to make a U-turn on the road under the circumstances. …

The plaintiff claims that the defendant is liable for the negligent driving of the driver of vehicle 2 [in that he] … failed to keep any proper lookout or to have any or any sufficient regard for other traffic particularly oncoming traffic.

6. In his affidavit the plaintiff said that at one stage he had seen the utility travelling ahead of the truck in which he was a passenger but at the moment of impact "I never saw what had happened but was only told of how the accident occurred". In cross-examination he said it was true that he did not know how the accident happened but he had seen the utility in front of the truck in which he was a passenger.

7. Also giving evidence for the plaintiff was another passenger on the truck, Felix Niakra. In his affidavit he said he was sitting in the front cabin with the driver. He continued:

At a point along the said highway, a … utility … was travelling ahead of us. We were travelling right behind it. The driver of our vehicle was trying to overtake the [utility] when to my surprise it suddenly made a U-turn. By then it was too late for our driver to swerve the vehicle to avoid a collision and the [utility] came right at us and hit the left side of our truck. It was a very big hit.

As a result of the collision the driver of our vehicle lost control and our vehicle ran off the road and crashed into an oil palm tree nearby on the left side of the road.

8. In oral testimony Mr Niakra said that the driver of the truck was about to overtake the utility but when the truck went to the right of the utility, the utility surprisingly tried a U-turn. The utility had turned right, he said, thus hitting the truck on the left-hand-side.

9. Mr Pokia's principal contention is that the pleadings assert that the utility was "oncoming" and say nothing about the truck overtaking the utility or about the utility turning into the right lane and colliding with the truck; therefore the evidence is not supported by the pleadings and should be rejected. Furthermore, he submits that the plaintiff's oral testimony conflicted with his affidavit as in his affidavit he said he did not see the collision but in his oral testimony, he saw the collision.

10. I reject both contentions. The statement of claim pleads that the utility made a U-turn without warning and that the driver failed to keep a proper lookout and had insufficient regard for oncoming traffic. Mr Niakra's evidence that the truck was trying to overtake the utility and that the utility was in the right lane is not inconsistent with the statement of claim. It amounts to further detail, that is all. Likewise, the word "oncoming", used in the statement of claim, does not necessarily mean that the utility was travelling in the opposite direction to the truck. It is not an allegation of fact that is inconsistent with the plaintiff's evidence.

11. As to the alleged inconsistency in the plaintiff's evidence, I detected none. The plaintiff's evidence was clear and consistent: he was sitting on the tray of the truck with his back to the cabin, at one stage he observed the utility travelling in front of the truck, but at the moment of impact he did not see what happened.

12. There is direct evidence (in the form of Mr Niakra's affidavit and oral evidence) and indirect evidence (in the plaintiff's affidavit and oral evidence) supporting the conclusion that the utility driver was negligent in that he drove without due care and attention. A police accident report was admitted into evidence and concluded that the utility driver should be charged with negligent driving under Section 17(1) of the Motor Traffic Act. The defendant presented no evidence and I find it proven, on the balance of probabilities, that the plaintiff's version of events is correct and that the driver of the utility was negligent.

2 IS MVIL LIABLE?

13. It is conceded by MVIL that the utility was insured, that the driver had a duty of care to other road users including the plaintiff and that his driving of the vehicle caused the plaintiff's injuries, which were not too remote. MVIL did not contest liability on any ground other than the utility driver's negligence. MVIL is therefore liable to the plaintiff to pay damages to the plaintiff.

3 WHAT DAMAGES IS THE PLAINTIFF ENTITLED TO?

14. The plaintiff is claiming:

•	general damages, K60,000.00; and
•	economic loss, K8,000.00;
•	special damages, K985.00; being
•	total damages of K68,985.00.

General damages 

15. This is intended to compensate the plaintiff for the pain and suffering, distress and inconvenience arising from the injuries he sustained due to the utility driver's negligence. A medical report by Dr Blaise Tonar prepared in 2008 shows that the plaintiff suffered a spiral fracture of the right humerus, resulting in a permanent loss of 40% efficient use of the right shoulder, arm and hand due to pain and weakness.

16. Mr Pokia submits that this sort of injury should attract an award of only K25,000.00 general damages. He refers to Swingley Oni v MVIT (2004) N2767: the plaintiff suffered injuries when the motor vehicle he was in rolled backwards while trying to ascend a hill and rolled over. He dislocated his right shoulder and the doctor assessed 80% loss of effective use of right hand, 60% loss of use of right shoulder joint and gave an average of 70% loss of efficient use of right arm and shoulder. Batari J awarded general damages of K40,000.00.

17. Ms Karre, for the plaintiff, agrees that Swingley Oni's case is a useful precedent but submits that the award of damages in that case may have been conservative. Sufficient regard was not paid to the effects of inflation and the reduced buying power of the Kina since cases such as Peter Kuriti v The State [1988-89] PNGLR 633 and Nali Matabe v The State [1988] PNGLR 309. In Kuriti a police dog savaged the plaintiff's arm, causing a 30% loss of efficient use of the forearm and minor disfiguring and scarring. General damages were assessed at K9,000.00. In Matabe the plaintiff suffered a fractured clavicle and there was 15% loss of use of the left arm. He was awarded K10,000.00.

18. I do not agree that the award in Swingley Oni's case was conservative. I consider that it provides a useful guide to what should be awarded in this case. Makail AJ recently summarised awards involving permanent shoulder/arm/hand injuries in Michael Kunumb v The State (2008) N3480 and his Honour was not critical of the decision in Oni. I am in the same position. Having regard to Oni, and taking into account that it was decided six years ago, I will assess general damages at K30,000.00.

Economic loss

19. Ms Karre conceded that the evidence in support of both pre-judgment and post judgment economic loss is sketchy. The plaintiff gave evidence that he earns income from the sale of oil palm but provided few details. He said he helps out his brother on his brother's block but his brother is in charge of the money. She submitted that on the authority of Nali Matabe v The State [1988] PNGLR 309 the court should award a global sum of K8,000.00.

20. The police accident report gives the plaintiff's age at the date of the incident as 27. The courts often presume, for purposes of calculation of economic loss, that a person's working life ends at age 55 (MVIT v John Etape [1994] PNGLR 596, Rom Tinpul v Moses Yere [1998] PNGLR 582, Kembo Tirima v Angau Memorial Hospital Board (2006) N3106). So the plaintiff had a post-incident working life of 28 years. That means the plaintiff is claiming a weekly economic loss of:

•	K8,000.00/28 years/52 weeks = K5.50 per week = K11.00 per fortnight.

21. That is a modest sum, with which the defendant takes no serious issue, so I will award K8,000.00.

Special damages

22. The plaintiff claims medical expenses of K328.00 plus K657.00 for airfares (from Lae to Kimbe return to enable the plaintiff to attend court). I agree with Mr Pokia that airfares do not belong in a claim for special damages. I award K328.00.

Summary of damages awarded

•	General damages = K30,000.00
•	Economic loss     = K8,000.00
•	Special damages  = K328.00

•	Total damages     = K38,328.00

INTEREST 

23. 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.

24. 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.

25. 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.

2 The rate of interest commonly used is 8%. In view of current economic conditions in the country 8% is the proper rate of interest.

3 Interest should be payable on the whole of the sum of damages for which judgment is given.

4 The commencement date for the appropriate period will be when the cause of action accrued, 16 November 2000. The end of the period is the date of judgment, 9 April 2010. The appropriate period is 9.4 years.

26. I calculate the amount of interest by applying 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.

Thus:

•	K38,328.00 x 0.08 x 9.4 = K28,822.66.

COSTS

27. 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. There is nothing about this case to warrant departure from the general rule. The defendant will pay the plaintiff's costs.

ORDER

28. I direct entry of judgment in the following terms:

(1)	damages payable by the defendant to the plaintiff of K38,328.00;

(2)	interest payable by the defendant to the plaintiff of K28,822.66;

(3)	being a total judgment lump sum of K67,150.66 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;

(5)	time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly.

____________________________
Pryke & Janson Lawyers: Lawyers for the plaintiff 
Mirupasi Lawyers: Lawyers for the defendant