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Are v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 456 (20 December 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 456 - Sipa Toa Are v MVIT 

[1991] PNGLR 456

N1025

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SIPA TOA ARE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

18 November 1991

20 December 1991

DAMAGES - Personal injuries - Particular awards of general damages - Injury to lumbar spine - Compressed fracture of vertebra - Conservative treatment - Continuing disability and pain - Permanent disability of 15 per cent - Village man (aged about twenty-five years) with capacity for casual labouring - Reduced ability for traditional work - Award of K12,000 general damages - Award of K7,000 for economic loss.

The plaintiff, a village man aged about twenty-five years and able to earn income as an unskilled labourer claimed damages arising out of a motor vehicle accident as a result of which he suffered a compressed fracture of a vertebra of the lumbar spine which was treated with bed rest but which left the plaintiff with continuing disabilities, including continuing pain and a permanent disability of 15 per cent which restricts his full participation in rural village life.

Held

General damages for pain and suffering and loss of amenities should be assessed at K12,000 and damages for economic loss at K7,000.

Cases Cited

Kaum Joseph v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 453.

Make Kewe v Kudjip and PNG [1986] PNGLR 279.

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436.

Statement of Claim

This was the hearing of an action in which the plaintiff claimed damages for personal injuries suffered in a motor vehicle accident.

Counsel

D L O’Connor, for the plaintiff

A Kandakasi, for the defendant

Cur adv vult

20 December 1991

WOODS J: The plaintiff is claiming damages for personal injuries he received when he was involved in a motor vehicle accident which occurred on 13 August 1988 when he was riding on the back of a motor vehicle registered No AFD 409 driven by Michael Kara which went off the Gumine-Kundiawa Road and into the trees and the plaintiff was thrown out.

The plaintiff says he was employed as a security officer at the High School at Kerowagi and on 13 August 1988 he got into the back of the school truck and while travelling along the vehicle suddenly swerved off the road and came to rest against a tree and he was thrown out. Constable Lama was the police officer who attended the scene apparently the next day. He saw the vehicle still there but then found the injured person in the hospital. A witness Somore who lives near where the incident happened came to the scene immediately after the accident and saw the vehie turned over off the road and a person lying injured.

Counsel for the defendant has submitted that the plaintiff was partly negligent in the way he was riding on the back of the truck. This was a High School truck so presumably it was used with full knowledge of the authorities to transport school pupils. There is no evidence to suggest that the plaintiff was doing otherwise then riding normally on the back. So there is no evidence to suggest any contributory negligence in the plaintiff. Counsel for the defendant also submits there is no evidence of any negligence with the manner of driving of the driver. However the Court is entitled to infer that if a vehicle goes off the road and overturns there is a lacking of the standard of care required under the law such that it can infer negligence in the absence of any reasonable explanation. No reasonable explanation has been offered.

I therefore find that the driver and therefore the Motor Vehicles Insurance (PNG) Trust is liable for the injuries to the plaintiff.

ON DAMAGES

The plaintiff was admitted to the hospital following the accident and was found to have sustained superficial injuries to the face and a tender swelling of the back. X-rays revealed a fracture dislocation of the transverse process of the third lumbar spine. He was in hospital for eight days then released and the medical superintendent noted that almost a year later he seemed to have fully recovered. However he later attended on Dr Kulunga complaining of constant lower back pain since the accident which prevented him working in the village. The doctor found that the plaintiff has a compressed fractured vertabrae which will give him persistent pain and assessed that he will suffer a 15 per cent permanent disability in effectively performing his work in the village. Dr Kulunga said that whilst Dr Seba may have noted that the plaintiff seemed to have fully recovered it is not unusual with back injuries for a person to get pain recurring or even renewing some years after the original accident.

I am satisfied there is some difficulty in the plaintiff living a full life in the rural village environment. Back injuries are very difficult to quantify for damages.

In the case Pinzger v Bougainville Copper Ltd [1983] PNGLR 436, the court awarded general damages of K24,000 which was for a more serious back injury than in this case. In the case Make Kewe v Kudjip and PNG [1986] PNGLR 279, a young village man suffered slightly more serious spinal and leg injuries than the case now before me and general damages of K20,000 and economic loss of K10,000 was awarded.

In Kaum Joseph v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR  a village woman was awarded K10,000 for general damages and K7,000 for economic loss following a wedge stable fracture of the lumbar spine. I feel that the case before me is in the realm of Joseph’s case and Kewe’s case.

The plaintiff here will suffer more disability in fulfilling his fair share of the work load in the village subsistence economy. It is also submitted that he was a security man and in receipt of a regular wage and this should be used as a basis for permanent economic loss. However, there were no proper records submitted for his employment to suggest it was a permanent type employment. It appears more as a casual labouring type employment and I will therefore only consider him as a rural village man with the occasional opportunity to obtain unskilled labouring type of work. The plaintiff is aged about twenty-five years.

In the circumstances I assess general damages for pain and suffering and loss of amenities at K12,000 and economic loss at K7,000.

I will allow interest at 8 per cent on K5,000 of the general damages from the date of issue of the writ to today and interest at 4 per cent on K3,000 of the economic loss.

To summarise:

I award damages in the sum of K19,652.48.

Judgment for plaintiff

Lawyers for the plaintiff: O’Connor & Hasu.

Lawyers for the defendant: Young & Williams.