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Toea v Motor Vehicles Insurance (PNG) Trust and The State [1986] PGLawRp 376; [1986] PNGLR 294 (5 September 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 294 - Pangis Toea v MVIT and The State �

[1986] PNGLR 294

N554

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PANGIS TOEA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Waigani

Los J

15-18 July 1986

5 September 1986

DAMAGES - Personal injuries - Particular awards of general damages - Arm and leg injuries - Fractures of left arm, humerus and wrist - Fractures and dislocation of left femur and hip - Shortening of arm - Claw arm with wasting - Arm totally and permanently useless - Shortening of leg - Functional disability of 70 per cent - Female villager in mid forties - Marriage breakup consequential on injuries - Award of K35,000 general damages.

The plaintiff, a village woman in her mid forties, and married, was injured in a motor vehicle accident and suffered fractures of the left arm and left humerus, a compound fracture of the left wrist, a fracture of the left femur and a fracture dislocation of the left hip. She was hospitalised for six months. Her permanent disabilities included a totally useless and wasted left arm with a claw hand and a 70 per cent loss of the efficient use of her left leg with probability of future osteoarthritis. As a result of her injured state her marriage broke up.

Held

General damages for pain and suffering and loss of amenities should be assessed at K35,000.

Cases Cited

Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350.

Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365.

Darvill v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 548.

Edwards v R E Jordan trading as Jordan Lighting [1978] PNGLR 273.

Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573.

Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219.

Pumbu v Tenken and Anor (Unreported, N533, Los J, 5 September 1985).

United Uranium NL v Fisher [1965] ALR 99.

Yap v The Independent State of Papua New Guinea (Unreported, National Court, WS 92, 93, 94 of 1984, 22 March 1985).

Trial

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

Counsel

D O�Connor, for plaintiff.

M Challinger, for first defendant.

D Lambu, for second defendant.

Cur adv vult

5 September 1986

LOS J: The plaintiff�s claim arises from the injuries she received in a traffic accident on 2 June 1980. She was a passenger on a Toyota land cruiser (the first vehicle) registered number ACN-441 insured by the first defendant. The first vehicle was travelling from Wapenamanda to Wabag and along the road it collided with a Government vehicle (the second vehicle) registered number ZGC-050 owned by the second defendant. The plaintiff claims that either the driver of the first or the second vehicle or both drivers were negligent in his or their manner of driving, control and management of the vehicles. Both liability and damages are contested.

LIABILITY

The first defendant and the second defendant appear to agree that there was some negligence on the part of each driver. But the first defendant contends that a substantial contribution of negligence came from the driver of the second vehicle. The second defendant contends to the contrary.

The major factors highlighted in the evidence were speed and travelling on the wrong side of the road. There was a claim of overloading of the first vehicle but it seems that if there was absence of speed and/or travelling on the wrong side, the overloading would be relevant.

(A) SPEED

One of the two witnesses who were in the first vehicle apart from the plaintiff said the first vehicle was speeding, likewise the second vehicle was speeding. The plaintiff�s evidence is that the vehicle she was in, ie, the first vehicle, was travelling at a high speed. The Government vehicle was also travelling at a high speed. The driver of the second vehicle said as he had to go up a hill he had to travel at thirty to thirty-five miles per hour. The plaintiff and the other passengers� qualification to estimate speed has not been established. Whether all or any of them hold licences to drive and have experience to say how fast a vehicle travels I cannot tell. Further, whether they have travelled in the vehicles to an extent that they are able to tell the difference between normal speed and high speed has not been established. The driver of the Government vehicle of course had to protect his own credibility. Understandably therefore his evidence as to speed would have to be less extreme. Nevertheless the absence of any evidence that any of the vehicles slowed down and stopped indicate that the speed of both cars was such that stopping was impossible. The effect of the impact also tells of the speed of both cars. On impact the first car veered to the left and overturned. In my view the overturning was helped by the force of the second vehicle with its weight and speed. The weight of the second vehicle alone could not have forced the first vehicle to overturn. According to the evidence the first vehicle had a greater load than the second vehicle. The speed of the first vehicle itself and sudden veering to the left also in my view caused the overturn. I conclude that both vehicles were travelling at an excessive speed in the circumstances.

(B) TRAVELLING ON WRONG SIDE OF THE ROAD

The evidence has established that the road is wide enough for two cars to pass each other without any problem. The accident occurred substantially because either one or both of the vehicles were travelling on the wrong sides of the road. The driver of the second vehicle said he was on the correct side of the road but he turned to the right when he saw that the first vehicle was on the incorrect side of the road. The only way to avoid an accident was to turn to his right. The plaintiff and the other witnesses blamed the second car for travelling on the incorrect side of the road. I am cautious here on this aspect of the evidence. Indeed some seconds before the impact, the Government vehicle was on the wrong side but its driver explained why. If the plaintiff and her two witnesses were talking about this stage of the accident, it can only corroborate the evidence of the driver of the Government vehicle. The first witness for the plaintiff, Parau Kamungo, admitted he was not looking at the car coming from Wabag as he was looking at the bushes and trees. But he said the �vehicle coming from Wabag was on the way of the vehicle I was in�. The second witness, Imbi Nesek, said �the vehicle that was coming from Wabag was on the same side as the vehicle I was in. The vehicle that was coming down from Wabag was trying to kill us. So our driver turned the car over�. The plaintiff said �the car I was in was �giving sixty� (speeding) and the car coming down was also �giving sixty� (speeding). That car came very close to us. Our car overturned�. Their evidence is ambiguous as to whether they describe the time just before the impact when the second vehicle was admittedly on the wrong side or the period when their own vehicle might have been on the wrong side when the Government vehicle might have been on its correct side. The evidence is silent on this important aspect of the case. For some reason neither counsel for the first defendant nor the second defendant has asked any questions to clarify it. If either vehicle was on the wrong side of the road, why was it that the drivers did not see each other�s vehicle far ahead so that each could move to his respective side.

The plaintiff and her passenger witnesses said the road was straight � no corners and no hills. A diagram drawn by a witness of the plaintiff who attended the scene of the accident soon after the accident and helped police to prepare a report indicate that (looking towards Wabag) there is a slight turn towards the right. The evidence of the driver of the second vehicle indicates there is a small hill that he had to go down and up before the accident. The turn is so slight that either driver could see an oncoming vehicle from some distance. The logical explanation for the accident in my view is this: both drivers did not see each other in sufficient time because the second vehicle was down hill. The driver of the first vehicle was under misapprehension that there was no car coming towards him. Likewise the driver of the Government vehicle could not see ahead as he reached the bottom of the hill and as he came up the hill. As he was going up, he was not completely on its left side. Also the other vehicle was not completely on its left side. As soon as they were able to see each other, the first vehicle turned left towards its correct side but the second vehicle turned to the incorrect side thereby hitting the right side of the first vehicle on the tray. The accident could have been avoided if the Government car turned to its correct side of the road.

Counsel for the second defendant urged me to apply the emergency situation principle in the Australian High Court decision in United Uranium NL v Fisher [1965] ALR 99. In that case the driver (Fisher) of the vehicle (the first vehicle) in which the plaintiff was travelling did everything right except in order to avoid colliding with an oncoming car (the second vehicle) which was travelling on the incorrect side, turned to the right but the driver of the oncoming car becoming aware of the presence of the first vehicle suddenly swerved to the correct side of the road thereby colliding with the first vehicle. The trial judge found that the accident was caused substantially but not solely by the negligence of the driver of the oncoming car. The learned judge attributed 25 per cent of negligence to the driver of the first car. Upon appeal the High Court reversed the learned trial judge�s decision. The Court said (at 101):

�With all respect to the learned trial judge, we are unable to agree with his conclusion that, in the emergency which faced him, the defendant Fisher acted negligently. The case appears to us to be one for the application of Lord Dunedin�s remark in US Shipping Board v Laird Line Ltd [1924] AC 286 at 291, that �it is not in the mouth of those who have created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in the danger�.�

The circumstances in Fisher�s case differ in three ways. Fisher was on his correct side of the road. He sounded the horn. He could not move further to the left because of a steep drop from the gravel shoulder. In my view the driver of the Government vehicle cannot gain much assistance from this case. He did not sound any horn. He was partially on the wrong side of the road himself and that going to the right side was not the only way open for him to follow. The accident occurred because both cars were travelling at an excessive speed in the circumstances. They were not keeping strictly to their respective sides and the final straw was that the driver of the second vehicle upon becoming aware of the presence of the first vehicle turned to the incorrect side of the road thereby colliding with the first vehicle. I apportion therefore one third liability to the first defendant and two thirds to the second defendant.

DAMAGES

As a result of the accident the plaintiff suffered a fractured left arm and left humerus; compound fracture of left wrist; fracture of left femur; fracture and dislocation of left hip and a cut on her forehead.

The fracture in the left arm has healed. However, the arm is 3 cm shorter. There is gross wasting on the muscles below the fracture sites, and sensory loss over the entire forearm below the fracture site, and a claw arm. All movements in the wrist are restricted. In the opinion of Dr Kulunga, the plaintiff�s left arm is 95 per cent totally and permanently useless. Dr Nelson says the plaintiff has a 100 per cent loss of the use of her left arm. The difference is not great. What is a hand when it cannot do anything at all.

The left leg is short by 1 � inches. There is total sensory loss of the lower leg which is permanent. There is a sign of osteoarthritis of hip joint. This and the shortening of leg restricts her normal movement. The complete sensory loss makes her vulnerable to unappreciated repeated injuries of the leg. Dr Kulunga�s opinion on the total effect of the injury to the plaintiff�s hip and left leg is that the plaintiff is left with a 70 per cent permanent disability in its functional use. Dr Nelson says the loss in this respect is 50 per cent. It seems Dr Nelson has �postponed� the effect of osteoarthritis on the plaintiffs�s hip bone. He said osteoarthritis would further handicap the plaintiff in ten to twenty years. Dr Kulunga�s assessment of loss included the effect of osteoarthritis. I therefore find there is little or no difference in the opinion of both doctors. I hold the loss to be at 70 per cent.

PAIN AND SUFFERING AND LOSS OF AMENITIES

Earlier I described to an extent the kind of injuries the plaintiff has suffered. Immediately after the accident the plaintiff was taken to the Immanuel Hospital at Wapenamanda and she spent six months in the hospital. Because of the fracture of the left mid humerus and the disruption of the left wrist joint and the small bones uniting the hand to the forearm, the plaintiff is left with a claw hand and a useless left arm. And because of the fracture of left mid femur and fracture dislocation of the left hip joint together with the development of osteoarthritis of the hip joint for the next twenty to thirty years her left leg will serve no useful purpose. Because of the sensory loss in her both injured limbs, she is vulnerable to further injuries and fractures. For example, she cannot appreciate that she is stepping on broken bottles. Or the arm bones may be fractured by trivial forces or injuries because the arm and the bones inside it have fallen into disuse. Her marriage has broken up because of her injuries. She is now living with and is looked after by her own relatives.

All three counsel have not cited to me any precedent directly relevant to the award of damage under this heading for the type of injuries and the effects the plaintiff has suffered and will be suffering the rest of her life. Mr O�Connor urged upon me to look at the awards in the paraplegic cases as a guide. He referred to Bredmeyer J�s decision in Aundak Kupil and Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350 and my own unnumbered decision of 22 March 1985 in John Yap and Others v The Independent State of Papua New Guinea (Unreported, WS 92, 93, 94 of 1984). In the latter the award for pain and suffering for John Yap was for K70,000. Counsel for the first defendant and counsel for the second defendant are opposed to the similarities being drawn with the paraplegic cases. They submit however, that a fair and reasonable compensation under this head of damages should be a sum between K25,000 and K30,000. I do believe that the paraplegic cases provide valuable guidelines to some extent. But the absence of the peculiar nature of the injuries and suffering in paraplegic cases such as paralysis of lower part of the body, loss of control over the bladder and the provision of a wheel-chair make the present case different and it stands on its own.

The authorities relied upon by Mr Lambu and to some extent relied upon by Mr Challinger show that the damages for pain and suffering and loss of amenities range from K10,000 to K25,000: Edwards v R E Jordan trading as Jordan Lighting [1978] PNGLR 273, K17,000; Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573, K10,000; Darvill v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 548, K19,000; Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219, K25,000; Caedmon Koieba v Motor Vehicles Insurance (PNG) Trust [1984] PNGLR 365, K19,000. In Edward�s case the plaintiff suffered considerable pain earlier during hospitalisation and surgery. Both of his legs were affected. In relation to his work the injuries affected him seriously but not otherwise. In Darvill�s case the plaintiff suffered a fracture of the back bone resulting in the restrictions upon her legs and arm movement. She suffered a lot of pain immediately after the injuries. She also suffered from emotions and nervousness. A lot of these were complicated by an attempted rape upon her and the loss of her husband�s job. While legal principles discussed there are relevant and helpful, factually the case gives me little assistance, In Lewis� case the plaintiff�s suffering and pain resulted from the primary brain injury. The injuries and their effect were serious but of different nature, eg, loss of memory and loss of vision. I note however, the extent of damages determined as appropriate to the pain and suffering and loss of amenities in the circumstances of that case. The two cases that are more relevant in my view are Kandapak�s case and Koieba�s case.

In Kandapak�s case though the plaintiff had a claw hand and deformity he could grip with thumb and index finger. The medical opinion was that the forehand disability of the hand was 10 per cent. In the present case the plaintiff�s fingers have no use at all. The hand is useless. It hangs like a foreign material on the body of the plaintiff. This calls for an award greater than in Kandapak�s case. In Koieba�s case the plaintiff had more operations and he suffered more pain it seems to me than the present plaintiff. But he was not left with a �dead� leg like Toea. The award in this case should not therefore be less than in Koieba�s case.

A direct result of the injuries is that the plaintiff�s husband did not like her anymore. She can no longer be a wife and mother as expected in the tough village life where she has to garden, carry heavy loads and is expected to cook and feed many close and distant relatives of her own as well as her husband�s. In my view the proper award for pain and suffering and loss of amenities in this case is K35,000. I award this sum.

ECOMONIC LOSS

The plaintiff says her husband had a coffee garden. She helped in the coffee garden and whenever they sold the coffee her husband gave her K20. This was for buying food for the family as well as some for her own use. She did not say how much she used for herself. I think it is natural to expect that the amount of money she spent on food would vary, depending on whether there were many relatives visiting or there were feasts. On the average the expenditure for food would have been greater. About a quarter of the money given to her would have been applied for her own use. As she has also lost what she would have expected from her husband, ie, the loss of the component of the K20 that she needed to spend on food she should be compensated for it too. This is a loss consequential upon her marriage breaking down because of her injuries. There is no evidence of her independent economic loss. I have covered the loss of marriage and loss of capacity as a wife and mother under the general damages.

It would be fair however to say she had lost K10.00 a month. For about eight months coffee season in a year she would have expected to receive K80.00. The plaintiff is in her mid forties. If all goes well, she is expected to live for twenty to twenty-five years. I determine the life expectancy at twenty-five years. It would be unjust to fix the life expectancy at the lower point of estimation if in reality the plaintiff lives a bit longer into the period unaccounted for when assessing damages. I award her K2,000.

INTEREST

The power to award interest is discretionary under the Judicial Proceedings (Interest on Debts and Damages Act) (Ch No 52) as I have discussed in another case (Pumbu v Tenken and The Independent State of Papua New Guinea (Unreported, N533, National Court, 5 September 1985)). The plaintiff was injured on 2 June 1980. From this date to the judgment date is six years and three months. The plaintiff�s pain and suffering together with the shock of a sudden change in her life would be greater soon after she had been injured. Therfore the portion of the award for pain and suffering should be greater. I determine the amount to be K20,000. The interest should be paid upon this amount. This amount computed up to the judgment date at four per cent is K5,000.

There is no evidence as to at what point in time the plaintiff left her husband. The kind of injuries she had suffered would have meant the husband rejected her soon after and I would think she would have left as soon as she was discharged from the hospital. She has therfore been without any cash in hand for six years and three months. She has lost K500.00. I assess the interest on this sum for this period at four per cent to be K125.00.

AWARDS

APPORTIONMENT

The First Defendant � one third � K 14,041.66

The Second Defendant � two thirds � K28,083.34

There will be a verdict for the plaintiff and judgment accordingly in the sum apportioned against each defendant.

Verdict and judgment accordingly

Lawyer for the plaintiff: D O�Connor.

Lawyer for the first defendant: Young & Williams.

Lawyer for the second defendant: State Solicitor.