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Koka v Motor Vehicles Insurance (PNG) Trust [1994] PGLawRp 671; [1995] PNGLR 294 (21 October 1994)

PNG Law Reports 1995

[1995] PNGLR 294 - Yapi Koka v Motor Vehicles Insurance (PNG) Trust MVIT�

[1995] PNGLR 294

N1273

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

YAPI KOKA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

20 April 1994

29 July 1994

21 October 1994

NEGLIGENCE - Motor vehicle accident - Two vehicles colliding - Liability.

DAMAGES - Personal injuries - Head injuries - Social and intellectual disfunction - Village man - Leader in the community.

EVIDENCE - Assessment of injury - Ability of general practitioner to give expert evidence when specialist not available.

Facts

The plaintiff was a passenger in a Mitsubishi truck belonging to Kandep High School, which collided with a Toyota truck. The plaintiff alleged that the accident was caused by the negligence of the driver of the school truck. The plaintiff was seated in the cabin of the truck next to the off-side door. When the vehicles collided, he was thrown forward and hit his head. He insists he had his seat belt on and, therefore, there was no contributory negligence on his part. The driver admitted the collision and that he was driving a �bit fast�. He alleged, however, that the Toyota truck was speeding and that the collision was the other driver�s fault. A witness who was in the Mitsubishi truck with the plaintiff stated that the plaintiff had his head and upper part of his body thrown forward by the force of the impact. There was, therefore, a query as to whether the plaintiff was wearing a seatbelt. A medical doctor gave evidence of memory and intellectual defects. There was conflicting evidence on the extent of injury.

Held

N1>1.������ When two motor vehicles collide and there is evidence of careless driving of both vehicles, a passenger is entitled to proceed against the driver of his vehicle. He is entitled to claim the total damages against the one vehicle.

N1>2.������ In the event there are no specialist-trained psychiatrists available, general medical practitioners who have had experience in Papua New Guinea and, in particular, had enough contact with the rural people to become experienced in their social behaviour and patterns, are able to give reasonable assessments of behaviour expectations and patterns.

Cases Cited

Papua New Guinea cases cited

Coady v MVIT [1985] PNGLR 450.

Colbert v PNG [1988-89] PNGLR 590.

Guli v MVIT [1994] PNGLR 304.

Maipen v MVIT [1990] PNGLR 559.

MVIT v Pupune [1993] PNGLR 370.

Pose v PNG [1981] PNGLR 556.

Reading v MVIT [1988] PNGLR 236; [1988-89] PNGLR 608.

Counsel

P Dowa, for the plaintiff.

C Hudson, for the defendant.

21 October 1994

WOODS J. The plaintiff is claiming damages for personal injuries he received when he was a passenger in a motor vehicle which collided with another vehicle on the road between Laiagam and Kandep in Enga Province on 19 May 1989. The vehicle the plaintiff was in was a Mitsubishi truck, registered number AFU 979, belonging to Kandep High School. It collided with a Toyota truck, registered number AFL 557. However, the plaintiff alleges that the accident was caused by the negligent driving of Sa�a Kuro, who was the driver of the high school truck. He alleges that the high school truck was properly registered and insured with the defendant in accordance with the provisions of the Motor Vehicles (Third Party Insurance) Act Ch 295.

The evidence from the plaintiff is that he was the chairman of the school board and was riding in the school truck going from Laiagam to Kandep when, as the vehicle came around a sharp corner it was bumped by the other vehicle. The plaintiff was seated in the cabin of the truck next to the off-side door, and when the vehicles collided he was thown forward and hit his head on the handle he was holding on to. He insists that he had the seat belt on. He did not remember anything else but states that he later learnt that the accident was caused mainly due to the fault of his driver. So he appears to assume that the fault lay in his driver. He understands he was taken initially to Laiagam Health Centre, then to Kandep Health Centre, where he lost consciousness for three days, and then was admitted to Laiagam Health Centre on 24 May.

Evidence was given by the driver, Sa�a Kurao, who admits to the collision with the Toyota Stout, but he does not know the owner of it. He says that the road was narrow, and he admits that he was driving a little bit fast. He agrees that the police said he was wrong because he collided in the middle of the road, although he says in evidence that the other car was speeding and he was speeding �and as a result we collided�. He agrees that the plaintiff was wearing a seatbelt and that the plaintiff was taken to hospital in a car.

Robert Ganim, the headmaster of the school, confirmed that the school truck was properly insured by producing the then current certificate of insurance.

Tom Erasi, who was a teacher at the high school at the time and was in the vehicle with the plaintiff, states that the driver did not keep to the correct side of the road. He agrees that the plaintiff had his head and upper part of his body thrown forward by the force of the impact. This does raise the query as to whether the plaintiff was really wearing his seat belt, as normally the seat belt would restrain any forward motion of the passenger. After the accident, the witness says that he walked with the plaintiff to the Laiagam Health Centre. This seems to conflict with the evidence of the plaintiff and the driver. He says that he and the plaintiff returned to the scene of the accident later the next morning with the police, but this conflicts with the evidence that the plaintiff was injured and taken to the hospital.

Policeman Carl Toro attended the scene some hours later. From what he was told, he blames the school vehicle for the collision but agrees that the other vehicle could have been travelling too fast also. He also agrees it could be very easy to have an accident, as the scene was a sharp bend.

A photograph was tendered of the scene of the accident. It shows a fairly sharp bend, although it must be realised that that road has many sharp bends and is quite narrow and requires careful driving. I know the road reasonably well, as I have driven ona number of times.

A Dr Marinki gave evidence and said he was at Laiagam Health Centre in May 1989. He reports that the plaintiff was admitted to the health centre on 24 May after apparently being referred from Kandep Health Centre.

The defence has submitted that there was no negligence in the driver of the school vehicle but that, if there was any negligence, it was in the driving of the other vehicle.

I am satisfied on the evidence that there was a collision between two vehicles on the road on the day in question. From the evidence and from the photograph and from my own knowledge of the road, I am satisfied that the road does require extra care in negotiating the bends. The road is narrow and, as the policeman said, it is very easy to have an accident there, as it is a sharp bend. Whilst I am satisfied that, in fact, such an accident could imply careless driving by both vehicles, the plaintiff was quite entitled to proceed against the driver of his vehicle, as there was negligence in his driver in negotiating this road. In such a case, he is entitled to claim the total damages against this one vehicle. If the defendant considers that there may be another joint tortfeasor, then it is always open to the defendant to join that other driver.

On the question of contributory negligence for failing to wear a seatbelt, I am not satisfied that the evidence is sufficient to draw that conclusion. I agree doubts have been raised by Tom Erasi�s evidence on how the plaintiff was injured, but these doubts are not sufficient on their own.

I am, therefore, satisfied that the plaintiff was a passenger in the high school vehicle and there was some negligence in the driving of that vehicle, such that the plaintiff is able to claim against this vehicle. I am not satisfied on any contributory negligence. Also, there is no doubt as to the proper certificate of insurance of that vehicle with the defendant, as required by law.

DAMAGES

The plaintiff is, in effect, claiming that the knock to the head has caused him some permanent injuries. When the accident happened, he was treated at the Kandep Health Centre. The District Health Officer at the centre, Ansan Isingi, noted that the plaintiff was admitted on 20 May 1989, but understood he had initially gone to Laiagam Health Centre. He was given outpatient treatment at Kandep: penicillin, aspirin, and antibiotic dressing. He was then referred back to Laiagam. At Laiagam, he was treated by a Dr Marinki, who noted that he was admitted on 24 May 1989. He understood the plaintiff had been unconscious for three days, although this was not so, according to the report of Ansan Isingi. Dr Marinki noted that the plaintiff was moderately disorientated and drowsy. There was a frontal scalp wound, which was sutured with stitches, and there was a shoulder bruise. He was discharged from Laiagam on 31 May 1989. He was reviewed on 28 June 1989, and had recovered well, with some moderate memory and intellectual defects.

There was then no evidence of any further treatment or medical attendances until two years later, when he was examined by Dr Brother Andrew in 1991. Brother Andrew noted:

N2>*������� reduced concentration,

N2>*������� poor word recall,

N2>*������� poor number recall,

N2>*������� some hesitation with location of objects,

N2>*������� reduced fine control, and

N2>*������� significant construction dyspraxia.

In assessing the brain damage, Brother Andrew placed emphasis on the period of total unconsciousness. However, from the evidence of the medical attendances at the time of the accident, there was no unconsciousness. Brother Andrew does assess that there is a clear relationship between the injuries sustained and the described motor accident. He is satisfied that the plaintiff had suffered some severe traumatic brain injury. He says very little improvement could be expected except that, as a man with some intelligence and good family and community support, he will gradually learn compensating mechanisms which will permit a lessening of some disabilities. Brother Andrew presents some percentages for the different aspects of the disability. Brother Andrew saw the plaintiff again early this year and noted that the plaintiff seemed to be more depressed. He found this to be expected in a person who did not have the benefit of physio and occupational therapy following severe injury.

Professor Waters, a medical practitioner and a professor of surgery at the Faculty of Medicine, University of Papua New Guinea, gave evidence of examining the plaintiff in February 1994.

He had been told that the plaintiff had been unconscious for three days and had sustained an open fracture of his frontal bone. He noted that he had reduced muscle power in the right arm and leg. He stated that this could have been a result of a head injury. He gave an estimate of 15 percent disability for that loss of power . He noted that it is harder to quantitate the undoubted social and intellectual disfunction arising from head injury and said that further intellectual and social testing could be performed by a psychiatrist, if a more detailed assessment is required.

Dr Webb was called by the defendant to give evidence of his assessment. He also is a medical practitioner. He examined the plaintiff in April 1994. He states that the plaintiff�s detailed recollection of events is inconsistent with an allegation of substantial brain damage. He says that an actual examination of a person who claims memory loss and brain damage causing emotional upset, reduced concentration and poor recall is very difficult, because of the lack of any objective form of assessment. On examination, Dr Webb found that the plaintiff�s vital signs were normal and he was oriented in time, place, and person. He had an area of the mid-forehead on the hairline which exhibited thickening of the skull bone, which would be consistent with a localised fracture. And he did show a reduction of power in the left arm and leg. Dr Webb found a greater circumference of the different muscle groups in the right arm and leg than in the left whereas, if there was weakening, then there would normally be muscle bulk loss. In conclusion, Dr Webb did state that it is apparent that the plaintiff does have some impairment, but there is an ability to carry out most activities of daily living. He gives a maximum impairment for the plaintiff at 15 percent.

As has been often said, it is very difficult to accurately assess the impairment of a person who lives and works in a village environment, where there are often no foundation criteria from which to work. And with brain injuries and concussion, there are no specialist trained psychiatrists available or with the time and opportunity to assist in any assessment. In this situation, the courts find that general practitioners who have had experience in the country and, in particular, contact with the rural people, do become experienced in the social behaviour and patterns of the people and are able to give reasonable assessments of behaviour expectations and patterns. The court is presented with different percentages of impairment or disability. All medical witnesses agree that only after extensive psychiatric testing would it be possible to ascertain with total conviction the extent of disability; however, such is not possible.

I am satisfied that the plaintiff has suffered some impairment from the injuries received in the accident. This does affect his enjoyment of life and his ability to do his day to day activities and has reduced his ability to be an active participant in society. It is noted that he was a so-called businessman in the village environment, by way of operating a trade store, and was of sufficient status to be on the Kandep High School Board of Governors. I have already noted that the evidence does not support the story that he was unconscious for three days.

In Coady v MVIT [1985] PNGLR 450, there was substantial pain at the time, and then some possible intellectual impairment, and general damages were assessed at K12,000.

In Maipen v MVIT [1990] PNGLR 559, there was loss of consciousness and depressed fracture of the skull, and general damages were K12,000.

In Colbert v PNG [1988-89] PNGLR 590, there was a depressed skull fracture and memory loss, speech defects, diminished intellect and much more serious impairment than here, and general damages were K70,000.

In Reading v MVIT [1988] PNGLR 236, there was permanent brain damage, and general damages were K75,000.

In Guli v MVIT [1994] PNGLR 304, there was some minor post-concussion syndrome, and general damages were at K11,000.

In Pose v PNG [1981] PNGLR 556, there was brain damage which resulted in minor loss of function of the right arm and leg, and general damages were K9,000.

In MVIT v Pupune [1993] PNGLR 370, where the plaintiff complained of frequent headaches, defective memory, defective consideration, a persistent left facial nerve paralysis, excessive laceration from the left eye, and a forehead scar, the Supreme Court assessed general damages at K11,000.

This case before me now is clearly not as serious as the Colbert and Reading cases. This case, with the loss of function of the arm and leg, seems to be similar to Pose case. With the defective memory and defective considerations it seems to be like the Pupune case. I will, therefore, assess the general damages from an analogy to these two cases, although considering this is a bit more serious. I will assess an amount of K15,000 for general damages.

The plaintiff is also claiming economic loss because he was able to run a trade store but is now not able to, and the trade store has ceased operation. It has been said many times now that if you operate a modern-style economic business, the court is entitled to be presented with appropriate evidence to support such claims by way of account or ledger books and income tax returns, or something appropriate. Actually, the evidence does suggest that his relatives did help with the running of the business, and there is no real explanation why his relatives ceased running it some time after the accident. Any assessment on the profitability of the trade store is purely hearsay evidence and not supported with appropriate evidence. There was a claim related to the expenses for trips as a member of the Board of the School. However that is purely expenses for that activity, not remuneration.

I must, however, accept that because of his injuries the plaintiff is less able to be in some income-earning activity. Thus, he is less able to operate his trade store or do the manual garden work expected in his lifestyle. So, even without finding loss of profit, I must still consider some loss because of his inability to earn his way. I will assess an amount of K30 per week for loss of income from his reduced ability. Using that figure from the date of the accident comes to K8,460. Interest on that at 4 percent comes to K1,835.68. For future economic loss, based on his present age of 44 years, I will allow for a further 11 years. Using the 3 percent table, that comes to K14,700.

There is reference to special damages in the claim; however, they seem to relate to the expenses for medical examination, not for medical treatment, so they must be costs of the case, not damages.

To summarise:

I order judgment for the plaintiff in the sum of K41,251.55.

Lawyer for the plaintiff: P Dowa.

Lawyer for the defendant: Gadens Lawyers.