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Nidop v Motor Vehicles Insurance (PNG) Trust [1989] PGLawRp 70; [1988-89] PNGLR 635 (12 June 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 635 - Tom Nidop v MVIT�

[1988-89] PNGLR 635

N725

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NIDOP

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

10 May 1989

12 June 1989

NEGLIGENCE - Duty of care - Particular cases - Unloading of truck by forklift - In public area - Duty to ensure procedures adopted safe - Part of load falling on head of person in area - Forklift driver liable.

DAMAGES - Personal injuries - Particular awards of general damages - Head injury - Concussion - Lacerations - Minimal long-term effects including headaches and stiffness - Award of K8,000 general damages.

The plaintiff, a male aged 37 (41 at trial) and who worked at running a trade store and managing a cash crop gardening business, was injured when part of a load fell from a parked truck onto his head. The plaintiff was boarding his own vehicle which was parked beside a loaded truck when part of the load was dislodged by a forklift, which was being used in the unloading of the vehicle in a public area. The plaintiff was knocked unconscious and suffered a laceration to the head which required stitches. He continued to suffer from headaches and a stiff neck but with minimal long-term effect.

Held

N1>(1)����� In the circumstances, the driver of the forklift who was unloading the truck in a public area had a duty of care to ensure that the procedure was carried out in a manner which did not endanger other persons who might be expected to be in the area and he had breached that duty.

N1>(2)����� General damages for pain and suffering and loss of amenities should be assessed at K8,000.

Cases Cited

Anna Pose v The Independent State of Papua New Guinea [1981] PNGLR 556.

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

Sapa Landao v The Independent State of Papua New Guinea [1988] PNGLR 279.

Statement of Claim

This was an action in which the plaintiff claimed damages for personal injuries he received when part of an iron-wired frame fell onto his head from the back of a motor vehicle which was being unloaded by a forklift.

Editor�s Note

An appeal to the Supreme Court has been discontinued.

Counsel

D L O�Connor, for the plaintiff.

M M Maladina, for the defendant.

Cur adv vult

12 June 1989

WOODS J: On 15 October 1985, the plaintiff was a pedestrian outside Steamships Hardware building at Mt Hagen when he was struck by an iron-wired frame which fell from the back of a motor vehicle which was being unloaded by a forklift. It is alleged that the forklift driven by Kingsford Wabuweta dislodged the frame from the back of the truck. The plaintiff is alleging negligence on the part of the forklift driver and is claiming damages.

The defendant has denied negligence and in the alternative alleges that the plaintiff was partly negligent himself in placing himself in a position of possible risk.

The plaintiff had come to the Steamships Store to obtain timbers for a building that he was helping construct at the Community School of which he was on the Board. He had come there with some helpers in a vehicle which had starting problems so they had parked the vehicle on a small rise adjacent to the store. Having loaded the timber, they had push-started the vehicle beside a Hagen Haulier truck which was being unloaded and as the plaintiff came along beside his vehicle to get into the front seat the retaining frame from the back of the truck fell off and struck him on the head knocking him unconscious and ended up on top of him.

Apparently it was not uncommon for trucks to be unloaded in the public area in front of the store because of the lack of space in the yard at the back of the store.

Whilst there would always be an onus on members of the public to be careful next to trucks which are being unloaded, there is always a greater onus on the people concerned with the unloading to ensure their procedures are safe. On the evidence, this appears to have been an area of public access for people to go to the store and not an area exclusively for unloading. The plaintiff was going about his business and had neither deliberately nor carelessly put himself in the way of the unloading by the forklift. In such a situation where there was no deliberate act of negligence by the plaintiff in an area where he was entitled to be, I find that the total liability rested with the operators of the machinery involved with the unloading. It was clear that the frame which fell was apparently a potential danger which could have been foreseen and when the forklift raised the arc mesh it was unloading, it tangled itself in the frame and dislodged it.

I therefore find that the operators of the forklift were liable in negligence for any injuries caused to the plaintiff.

The plaintiff was struck on the top of the head by the frame. He was unconscious for a few moments and was taken to hospital. At the hospital he received four stitches for a laceration on the top of the head. He was not admitted to hospital but suffered from headache and a stiff neck. An x-ray at the time of the accident showed no fractures nor dislocations.

The plaintiff claims that he has suffered continuing disability by way of continuing headaches and stiff neck. He states that his neck movement is restricted and he feels pain when he turns his head to the left. His headache is exacerbated when he carries loads and does heavy gardening work.

Whilst there is no record of any hospital attendance since the original treatment nor of any continued medical treatment, the plaintiff has been obtaining Codral tablets to ease his headaches.

Dr Kulunga saw him in January 1988 and noted he had mild tenderness over the cervical spine and had signs of mild post-traumatic cervical osteoarthritis. He assessed 15 per cent permanent disability in performing duties like carrying loads and doing a normal range of movements.

A blow on the head which involves concussion always has the possibility of serious long-term complications. I am satisfied here that the plaintiff has some minimal long-term effects from the incident. However, it is very hard to be sure of things like headaches and pain from physical exertion when there are no outward physical symptoms and it is very hard to put a figure on it for general damages. Cases involving head injuries have usually involved more obvious long-term effects. The case of Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219, where there was confirmed brain injury with permanent disability and where institutionalisation would be necessary in the future, resulted in K25,000 being awarded for general damages. The case of Anna Pose v The Independent State of Papua New Guinea [1981] PNGLR 556, involved a child with a fractured skull and permanent disability limited to minor loss of function of the right leg and arm and resulted in an award of K9,000 general damages.

The case of Sapa Landao v The Independent State of Papua New Guinea [1988] PNGLR 279 involved a head injury, unconsciousness for five days and trouble walking distances and a balancing problem and general damages were assessed at K9,000.

I am satisfied that all those cases involved more serious damages than the plaintiff before me now.

The plaintiff has also claimed economic loss on the basis that he works on a vegetable garden and he is unable to do some of the heavy physical labour involved. He gave evidence that for a short time he employed a labourer to help because he could not manage. However, generally it appears that he plays an enterprising, managerial role for the rest of his family. He is 41 years of age and runs a store as well as a gardening cash crop business and much of the work is done by and shared in by members of his family. I am unable to quantify any clear economic loss but will make allowance for what would be a minimal loss in the heading of general damages which covers pain and suffering, and loss of amenities.

I assess K8,000 for general damages and apportion K2,000 to past damages on which interest will run at 8 per cent from the date of service of the writ till today. Interest therefore comes to K99.50.

I order judgment for the plaintiff in the sum of K8,099.50.

Judgment for K8,009.50

Lawyer for the plaintiff: D L O�Connor.

Lawyers for the defendant: Young & Williams.