Terema v Motor Vehicles Insurance (PNG) Trust [1994] PNGLR 41 (14 February 1994)

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NEGLIGENCE - Operation of back hoe on a public street - Failure to take proper precautions - Duty of care to passers-by - Liability.

DAMAGES - Personal injuries - Loss of leg - Married woman - General damages of K26,000.

The plaintiff was injured on the public road by a backhoe which was operated negligently by employees of the insureds. As a consequence, one of her legs had to be amputated.

1. Persons operating dangerous machinery in public streets, especially when such operation blocks the passageway of passers-by, have a heavy responsibility to take appropriate precautions to protect the public.

2. The onus is on the operator of a dangerous machine which causes injury to a member of the public to prove accident or negligence on the part of the injured person.

3. In assessing general damages, the loss to a married woman can be assessed just as much as loss to a young man, for a woman is expected to participate in quite physically demanding tasks. General damages of K26,000 awarded.

WOODS J: This is a claim for personal injuries suffered by the plaintiff when she was struck by a backhoe operated by the Water Board in Mount Hagen on 30 May 1991. The plaintiff claims that whilst she walked to the side of the road where the backhoe was being operated, the operator was so negligent in the duty of care to passers-by that the backhoe moved suddenly to where she was walking, struck her, knocked her down, and injured her legs so badly that one of them had to be amputated.

The evidence was that the backhoe was working on pipelaying across a road in the town. There was a path past where the machine was operating, and the plaintiff was walking beside a fence at the side of the road when she was struck. The operator and his assistant said that they were keeping a proper look-out, but they did not see the plaintiff until there was a shout and she was lying on the ground underneath the machine. They said that they had placed appropriate warning signs. The operator's assistant said he was on the backhoe with the operator, keeping a watch and directing any traffic. He suggested that the machine was settled onto the ground while it was digging and that the back blade was suspended in the air, and the lady must have walked under it and the machine must have lurched and dropped the blade on her. However, he gives no explanation as to how the plaintiff got so close behind the machine without him seeing her. He said that he had to ride on the machine to be able to see both sides to stop people.

The negligence alleged is that the operator of the backhoe failed to take proper precautions for the safety of persons who were using the road whilst he was working the machine. This raises the duty of care owed by persons operating dangerous machinery in public streets, especially when such operation blocks or partly blocks the passage-way that people ordinarily use. There is no dispute that the operator of the machine, namely the Water Board, accepts that it has a responsibility to the public. This is shown by the fact that it employs someone to be with an operator to control the traffic of people or machines. However, there is no doubt that a backhoe is a potentially dangerous machine. It has two operating ends. One end has a trench-digging apparatus, and the other end has a wide scoop. It presents danger to anyone who gets too close from both ends. When an operator is busy working at one end at a time, there must be a duty on the watchman, or safety look-out, to watch all around the machine, especially when it is clear that the machine could move backwards from the direction of the digging. Members of the public may not necessarily know the potential areas of movement of such a machine, so there is a heavy onus on the operators to take appropriate precautions to warn, and to look-out for, passers-by. Ideally, the whole area of possible movement of the machine should be fenced off from the public. However, there is no evidence that that was the situation here. There was talk of warning signs, but that may not be sufficient where the machine is operating on a public thoroughfare and people are being allowed to pass. There is no evidence that the area was properly cordoned off. It appears highly likely from the evidence of the operator and his watchman that the watchman may have been spending most of his time watching the operation of the machine and not watching out for passers-by. The operator and his watchman have given no satisfactory explanation of how the machine could have accidentally run over the plaintiff or of any negligence by the plaintiff. Rather, the whole picture from the evidence is of a failure to properly secure the area of operation and potential movement of the machine and failure to watch out for legitimate passers-by during the operation of an especially dangerous machine.

I am satisfied that the machine, a backhoe operated by the Water Board, has been properly identified, and there is appropriate evidence of the registration and insurance of the machine under the Motor Vehicles (Third Party Insurance) Act.

I am satisfied that there was a failure by the operator and the watchman to take proper precautions for the safety of legitimate passers-by during operation of the machine, and I find no evidence of any negligence by the plaintiff.

The plaintiff suffered the amputation of a leg below the knee and is, thus, permanently disabled. She is a married woman, aged about 34 years, and she resides with her husband in Mount Hagen. Even though she is currently an urban dweller, she is still severely limited in performing many of the tasks expected of a married woman in PNG. In the case Stamp v MVIT (1979) unreported N179, K20,000 was awarded as general damages for the loss of a leg. In the case Korrolly v MVIT [1991] PNGLR 415, the judge carefully considered figures for general damages in the case of a young village man who had lost a leg, and awarded K25,000 for general damages. I am satisfied that the loss to a married woman can be assessed at just as much as a young man, for a woman is expected to participate in quite physically demanding tasks. I find that the figures referred to in that case are a good guide.

For general damages for pain and suffering and loss of enjoyment of life, I will award a sum of K26,000. I will allow interest at 8% on K8,000 of that from the date of the writ till today, which assesses at K1,201.10.

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Papua New Guinea Law Reports

Terema v Motor Vehicles Insurance (PNG) Trust [1994] PNGLR 41 (14 February 1994)

PNG Law Reports 1994