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Walpe v Motor Vehicles Insurance (PNG) Trust [1993] PGLawRp 548; [1993] PNGLR 434 (29 January 1993)

PNG Law Reports 1993

[1993] PNGLR 434 - Dami Walpe v MVIT�

[1993] PNGLR 434

N1133

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

DAMI WALPE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

13-14 January 1993

29 January 1993

NEGLIGENCE - Motor vehicle accident - Unidentified vehicle - Due inquiry and search - Negligence - Balance of probabilities - Liability of insurance trust.

DAMAGES - Motor vehicle accident - Personal injuries - Villager - Back injuries - General damages K12,000.

Facts

The plaintiff claims he was injured when an oncoming vehicle crossed the center line and forced him to turn his vehicle off into a ditch beside the Okuk Highway in Simbu Province. The plaintiff claims he has done sufficient inquiry and search but the identity of the other vehicle remains unknown. There is evidence of the type of vehicle from two eye witnesses and evidence from the plaintiff's report to the police. The defendant submits there has been no due inquiry and search. The plaintiff claims general damages and economic loss.

Held

N1>1.������ Due inquiry and search means such inquiry and search as are reasonable in the circumstances; Mangoi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 327.

N1>2.������ Time of search, nature of area, social differences, and a lack of a proper search and tracing system are factors which may be taken into account when deciding what is reasonable in the circumstances.

N1>3.������ General damages of K12,000 awarded for a compression fracture of L3-L4 vertebrae and restrictions in the back amounting to a 40 percent disability in the efficient use of the plaintiff's back with the suggestion that with age the problem would worsen. As the plaintiff is a villager, K3,000 is awarded as a global amount for economic loss. Interest is awarded on half the general damages at 8 percent from the date of the writ to the date of the judgment.

Cases Cited

Pupti v Kudjip [1986] PNGLR 283.

Kuntu v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 440.

Kewe v Kudjip [1986] PNGLR 279.

Mangoi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 327.

Matabe v PNG [1988] PNGLR 309.

Counsel

P Kopunye, for the plaintiff.

A Kandakasi, for the defendant.

29 January 1993

WOODS J: The plaintiff claims he was injured on 29 September 1987 when he was driving his motor vehicle, a Toyota utility, along the Okuk Highway in the Simbu Province and was forced into the ditch at the side of the road by the negligent driving of an unidentified vehicle. The plaintiff claims that the identity of the other vehicle cannot be established after due inquiry and search and the claim is, therefore, brought against the defendant insurance trust by virtue of s 54(1)(c) of the Motor Vehicles Third Party Insurance Act. The plaintiff submits that he has done sufficient inquiry and search and has satisfied the requirements of the section. However, the trust submits that, on the evidence before the court, there has been no due inquiry and search and, therefore, there can be no claim against the trust.

The evidence before me is, first, from the plaintiff, that he left his home village at Nondugl early on the morning of 29 September to go to Kundiawa. On the way, he picked up some people from his area. When he was getting close to Kundiawa, he came around a corner and found another vehicle travelling straight for him. To avoid a collision, he left the bitumen and ended up overturning into the ditch at the side of the road. From his description and from the police report compiled after officers were taken to the scene, it appears that the plaintiff was on the inside as he approached the bend and the other vehicle had cut the corner and was in the wrong lane. The plaintiff said he was unable to get the number plate of the other vehicle as he was too busy worrying about trying to avoid colliding with it. Also, it was in the dawn, when the light was not too clear and there was a lot of cloud around. After the accident, he was pulled out of his vehicle by other people. Because he did not want to leave his vehicle in the ditch in a strange area, he managed to get it back onto the road and slowly drove it into Kundiawa to report the accident to the police. He told the police about the other vehicle, which looked like a white Toyota Stout.

The plaintiff brought witnesses to support his story. Two passengers who were in the back of the vehicle gave similar stories to his. They could not identify the vehicle, other than to say it was a white Toyota utility.

Two police gave evidence of the plaintiff coming to the Kundiawa police station early on the morning of 29 September and telling them the story of another vehicle cutting the corner and forcing him into the ditch. They said they took the plaintiff back to the scene and further along the highway to see if they could find the other vehicle or get any report of sighting of it. However, they could not find it nor find anyone who had seen it and could identify it.

Is this sufficient due inquiry and search? There was inquiry and search by the plaintiff and two police immediately after the accident. However, given the length of the highway and the lack of any active police system of monitoring and tracing vehicles in PNG, is the search done that day as much as could be expected in PNG? In other countries, actions such as advertising in the local press is used. However, is that appropriate in this country, where many of the people along the road would not see or be able to read the newspaper? Also, can we employ private inquiry agents to go along the highways and search. I do not think so.

In Mangoi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 327, I found that the plaintiff did nothing for some years. And I also felt that it may have been easier to try and trace a fairly obvious yellow Toyota Landcruiser along the highway between Wabag and Wapenamanda. So, in that case, I found there was not due inquiry and search.

In that case, I referred to the phrase "due inquiry and search means such inquiry and search as is reasonable in the circumstances", and how that is interpreted in cases from Australia.

I am satisfied that in this case before me now the plaintiff acted quickly and did what he could, with the help of the police, immediately after the accident. In view of the extent of the highway, social differences along the highway, and lack of a proper search and tracing system, there was very little else that the plaintiff could do. I find that the plaintiff has made due inquiry and search as required under the act.

The defendant submits that the evidence that there was another vehicle is not substantial enough. However, there are the plaintiff and his two passengers, who confirm the existence of the other vehicle. And there is the evidence of the police which, whilst only stating what they were told, is corroborative as being consistent with the plaintiff's story, which was given to them the day of the accident. There were no inconsistencies in the stories given by the plaintiff's witnesses so, on the balance of probabilities, I must accept their version of events, and there is no other version on the evidence.

The defence submits that the skid marks referred to in the police report suggest that the plaintiff was going too fast and, therefore, he was contributorily negligent. The defence submits that the plaintiff should have been driving much more slowly as he approached the particular bend. I cannot agree with this submission. This was the main Okuk Highway, which is clearly a two-lane highway with appropriate dividing lines down the centre. Any person is entitled to approach corners and assume that any oncoming traffic is on its correct side. So long as one is travelling at a speed which ensures you yourself will not stray across onto the wrong lane, you are driving safely. It is different if one is driving on a narrow dirt road, where there is no centre dividing line and the road is not comfortably wide enough for two lanes of traffic. There is no evidence before me to suggest there was any negligence in the plaintiff's driving.

The cause of the accident was the action of the unidentified vehicle in cutting the corner.

ON DAMAGES

The plaintiff is a villager aged about 40 years. He says that following the accident he was treated at Kudjip Hospital for bruising and pain to the back and shoulder. The pain in the lower back subsisted, and he continued to attend the hospital for a couple of weeks and received pain relieving drugs. He then attended a private doctor, who found that there was evidence of a spinal injury, although the accident may have aggravated a previous back injury. He found a compressed fracture of L3-L4 vertebrae and some restrictions of movement in the back. He assessed that there was a 40 percent permanent disability in the efficient use of the plaintiff's back. A more recent examination suggested that the problem was still the same and, with age, would be getting progressively worse.

Back injuries are notoriously difficult for courts to assess damages for. It is very hard to really assess what the difficulty is. I am satisfied that there is some problem, although it appears that there may have been a problem before the accident, so his present condition is not wholly caused by the accident.

It was apparent that at the time of the accident any injury or pain to the back was not so serious that he could still worry first about getting his vehicle out of the ditch and back onto the road. And then, after going to the police, he was able to accompany them in a vehicle back to the scene and along the highway looking for the unidentified vehicle. It was not till some hours later that he went to seek medical attention. Even then, it was not admission to hospital but attendance at the outpatient centre. The police, in their evidence, make no mention of the plaintiff being injured, other than he came to the police station with some dirt marks.

I am, therefore, not satisfied that the plaintiff received serious injuries from the accident. Perhaps a pre-existing back problem may have been exascerbated.

In Pupti v Kudjip [1986] PNGLR 283, the plaintiff, a village woman, had a compression injury to the spine plus arm injuries and was much more restricted in movement than the present case. She was awarded K20,000 general damages. In Kewe v Kudjip [1986] PNGLR 279, there was a compressed fracture of the spine and consequent quite severe leg weakness. The plaintiff was 18 years old and, again, was much more restricted in movement than the present plaintiff. She was awarded K20,000 general damages. In Kuntu v Motor Vehicles Insurance (PNG) Trust [1991] PNGLR 440, a young village man with back and arm injuries received K18,000 general damages. Again, I think that that case is more serious than this one before me now. The initial evidence suggested that there was no fracture to the back, but later it appeared to be compressed fracture of the L3-L4 vertebrae.

I am satisfied there is some injury caused by the accident, and I will assess K12,000 for general damages. The plaintiff is a villager and, therefore, must suffer economically by being partially restricted in doing the hard physical work expected of him in a village subsistence economy. Again, this is very hard to calculate. However, in the Kewe case referred to above and Matabe v PNG [1988] PNGLR 309, global amounts were awarded for economic loss in such situations. I here assess K3,000 as a global amount for economic loss. I allow interest on half the general damages at 8 percent from the date of the writ to today.

To summarise:

K

I order judgment for K16,743.78.

Lawyer for the plaintiff: Kopunye Lawyers.

Lawyer for the defendant: Young & Williams.