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Landao v The State [1988] PGNC 55; [1988-89] PNGLR 279 (11 April 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 279 - Sapa Landao v The State�

[1988] PNGLR 279

N661

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SAPA LANDAO

V

INDEPENDENT STATE OF PAPUA NEW GUINEA

Mount Hagen & Mendi

Hinchliffe J

7 October 1987

11 April 1988

DAMAGES - Personal injuries - Particular awards of general damages - Head injury - Five days unconscious - Continuing difficulties with walking long distances and keeping balance - Male in mid-fifties - Award of K9,000 general damages.

NEGLIGENCE - Road accident cases - Injury to pedestrian - Duty of care of motor vehicle driver - Acceptable use of roadways by pedestrians relevant.

The plaintiff, a male in his mid-fifties, claimed damages for personal injuries suffered when he was knocked down on the roadway by a police vehicle. The plaintiff suffered a head injury and was unconscious for five days; he recovered well but continued to have difficulty with walking long distances and keeping balance.

At the time of the accident the plaintiff was a pedestrian crossing the road near a roadside market to attend to a relative who had been knocked down by a motor vehicle and the police vehicle which was being driven through the market was attempting to take after the offending vehicle.

Held:

N1>(1)����� Taking into account that, in Papua New Guinea, roadways are commonly and acceptably used by pedestrians, thus placing a higher duty of care on motor vehicle drivers in respect of pedestrians, and the fact that the pedestrian was on a roadway, liability for the accident should be apportioned 80 per cent to the motor vehicle driver and 20 per cent to the pedestrian.

N1>(2)����� Damages for pain and suffering and loss of amenities should be assessed at K9,000.

Cases Cited

The following cases are cited in the judgment:

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

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

Undapmaina v Talair Pty Ltd [1981] PNGLR 559.

Trial

This was an action in which the plaintiff, a pedestrian, claimed damages for personal injuries he received when he was struck by a motor vehicle.

Counsel:

D L O�Connor, for the plaintiff.

D Lambu, for the defendant.

Cur adv vult

11 April 1988

HINCHLIFFE J.: On 9 November 1984, the plaintiff was struck by a police motor vehicle on the Wapenamanda/Wabag Highway approximately 12 km from Birip, in the Enga Province.

The defendant has denied negligence.

The plaintiff, who is a man in his early fifties, stated that the day in question was a market day and the scene of the accident was in fact in the immediate vicinity of the market. There is no dispute that there were many people about and that the actual market was located on the northern side of the highway. Shortly prior to the plaintiff being struck, there had been another incident where a young girl had been struck by another vehicle. The plaintiff stated that he had been on the southern side of the highway when the girl was struck and that he ran out to help her because she was being dragged along by the motor vehicle. He went on to say that he then saw the police vehicle coming from the direction of Wabag and that he waved it down but it swerved in his direction and struck him. He also said that the make of the police motor vehicle was a Suzuki.

First Constable Peter Nangai who was driving gave a very different account of what occurred. He stated that he was driving a long wheel base Toyota Landcruiser and that he and a number of other policemen were travelling towards Wabag, that is, in the opposite direction to that stated by the plaintiff. There is no dispute that a �Landcruiser� is larger than a Suzuki.

Constable Nangai said:

�As we approached a corner we came to a straight road. I saw a crowd of people and three motor vehicles about 50 m ahead. When I got to about 20 m from where the motor vehicles and the crowd of people were I saw that there had been an accident. I also saw crowds of people running backwards and forwards across the road. A motor vehicle was on the road and turning towards Wabag. I also saw people arm themselves with axes and bush knives and throwing stones at a motor vehicle that was turning. I sounded the horn of the police motor vehicle for the people to give way so I could chase the motor vehicle that had failed to stop after the accident. The crowd did give way but as I came closer to the scene suddenly two ladies and a man ran across the road from the club side (northern) to the trade store side (southern). They were about 5 m in front of us. I quickly applied the foot brake and the motor vehicle skidded and missed them by about 1 m. Not less than two seconds later another man and lady ran across the road from the club side to trade store side. They ran blindly in front of the police vehicle which was still skidding. I applied more pressure on the brakes. The horn was still sounding. The lady stepped back and the motor vehicle missed her by about 40 cm. The man did not stop and ran in a vertical angle and crossed the road to the other side. If I had swerved to the left I would have hit the first three. If I had swerved to the right I would have hit the lady who stepped back. I therefore placed my foot hard on the brake and the vehicle skidded and bumped the plaintiff. He came into contact with the far left side of the bumper bar. He was hit on the left hip and he fell to the side of the road. The motor vehicle stopped at the same time.�

The witness went on to say that his motor vehicle was travelling at about 20 kph immediately prior to the accident and that the plaintiff was on the roadway when he was struck. The plaintiff made no attempt to stop the police motor vehicle and he was running when crossing the road.

Constable Nangai also said in his examination-in-chief that there were about 300 to 400 people on both sides of the road and that he started to sound the horn about 20 m from the scene where people were shouting and throwing stones. He said that he slowed his motor vehicle at the time he sounded the horn and he considered stopping altogether but he decided to chase the other motor vehicle that had failed to stop.

When asked the question: �Are you saying you didn�t care about the people on the road. You were just after the first vehicle?� He answered:

�No. When I sounded the horn about 20 m away the crowd gave way. I travelled in third gear. I hit the victim at 15 kph. Before I applied the brakes I was doing about 20 kph. I skidded about 15 to 20 ft. I saw the plaintiff at first when he was in front of the police motor vehicle. I was in the process of skidding. I applied the brakes because of the crowd.�

In cross-examination the witness said that he accelerated after he sounded the horn but then braked when the first three people (mentioned previously) crossed the road.

The next person to give evidence was Constable Jack Baria from the Wabag police station. He was a passenger in the police motor vehicle, seated behind the driver, and he said:

�I saw people throwing stones at one of the motor vehicles. When we came close to the crowd of people all of a sudden I saw the plaintiff run out from the club side of the road across the road to the trade store side and a few seconds later I heard a noise on the police motor vehicle. The driver of the police motor vehicle stopped.�

In answer to the question: �Can you tell the Court at what speed the motor vehicle was travelling immediately before the accident,� he replied, �In my opinion the motor vehicle was travelling at 30 to 40 kph, ie, about 10 ft before the accident the police motor vehicle was travelling at about 30 kph.� He gave an interesting answer when asked: �Was there any thing about the driver�s manner of driving that you did not like,� he said, �If I drove I would have slowed to 15 kph. If there were people on the road I would have slowed.�

Clearly the plaintiff gave a very different story to that of the two defence witnesses. I am satisfied that the plaintiff was confused in his evidence. He was unconscious for five days after the accident and that may well have affected his memory and it must also be noted that he is no longer a young man.

I accept the evidence of the two police officers that they were coming from the direction of Wapenamanda and not from the direction of Wabag. It would be most unlikely that the police motor vehicle would swerve onto its incorrect side of the road and hit the plaintiff. The defence witnesses explained why they were coming from the Wapenamanda direction and their evidence on that point was such that I had no reason to disbelieve them.

There is a difference in estimates of speed on the part of the two defence witnesses. Constable Nangai�s estimate of the speed was somewhat lower than that of Constable Baria. Indeed Constable Baria�s evidence indicated to me that under the circumstances, Constable Nangai was travelling at an excessive speed. To my mind that is supported by the evidence that the driver gave in relation to the skidding that occurred when he applied the brakes of the police motor vehicle. Constable Baria estimated the speed at about 30 kph 10 ft before the accident and I would have thought that correct, if not a little on the conservative side.

I am also satisfied that the plaintiff did run across in front of the police vehicle. That is from the north to the south side of the road. I might say that there were many other people running and moving about on the roadway at the time and it seems that many of them were in an angry state of mind. Some were armed. Some were shouting and throwing stones because a young child had been knocked down by a motor vehicle shortly before the police had arrived.

I now must ask myself: �Was the driver of the defendant�s motor vehicle negligent?� The answer is �Yes�. I say that because it is quite evident that even though the driver saw the crowd on the road ahead and saw that an accident had occurred he in fact began to accelerate towards the crowd. I hasten to add that he had slowed down considerably when he first saw the crowd but then decided to sound the horn and accelerate to chase the motor vehicle that had failed to stop after running down the said child. I am of the view that the driver of the police motor vehicle should have driven very slowly and cautiously up to where the large crowd was situated and then stopped. He was aware that an accident had occurred and that there was a hostile crowd. To drive through, I consider, was very dangerous. In particular when he decided to accelerate, if he found it necessary to proceed it should have been at a �crawling� pace: not 30 to 40 kph. I am satisfied that he did sound the horn, although that was denied by the plaintiff.

The duty of care owed by a driver in Papua New Guinea is extremely high. Unlike Australia, New Zealand and the United States of America, amongst others, the roads here are used more by pedestrians than cars. At most hours of the day many people can be seen walking along both sides of the road. The large majority of people do not own motor vehicles. I think in Australia, the average family owns at least two motor vehicles. There are many road side markets and sometimes a market is on both sides of the road. Hence people use the roadway to walk across from one part of the market to the other. In some areas the roadway must be used as a footpath and therefore motor vehicle drivers must be doubly aware at all times. Highways are often meeting places for people and it seems to be a perfectly acceptable part of life. In Australia one can drive for hundreds of kilometres along a country road and never see a single person. In Papua New Guinea it is the opposite.

Was the plaintiff negligent? I am satisfied that he was, but to a far less degree. I suspect that the plaintiff did not see the police vehicle before it hit him. He was too intent on reaching his injured relative and that is why he ran across the road. It is likely that he would not expect a motor vehicle to be making its way through the crowd but that is where I consider he made a mistake. Certainly there were many others on the road but the fact is that he should have looked before crossing. He should not have run. It must not be forgotten that he was on a roadway.

It seems to me that the defendant is 80 per cent responsible for the accident and the plaintiff 20 per cent responsible.

The plaintiff suffered injuries and he is therefore claiming damages from the defendant.

In a medical report dated 8 July 1985, Dr Kuria Nemba of the Sopas Adventist Hospital said, inter alia:

�On the 9th November 1984 ... he was brought into the hospital unconscious and remained in that state for five days. No wound or evidence of fracture and dislocation seen anywhere (with X-ray examination).

He was treated as a head injury case with intravenous fluids, antibiotics, steroid and on observation.

After gaining consciousness he was kept for five more days and sent home.

Assessment today (eight months after incident) he is answering questions sensibly, orientated in time, place and person.

He may be suffering from delaying effect of head injury.�

At the trial the plaintiff said that he found �problems� with his mind. When asked: �What problems,� he said: �When I sit and when I get up to go, then I do not walk straight. I feel I move side to side.� He went on to say: �I don�t feel right with my brain. The inside part of my head ... . When I get up and go I might fall.� He was later asked: �Any problems walking long distances or being in the hot sun.� He replied: �I find it hard with my head and when I work I feel like falling down. When I walk I feel like falling down. I move from side to side.�

In cross-examination he proceeded in part as follows:

N2>�Q.���� You told the Court that when you walk you collapse.

N2>A.������ Correct.

N2>Q.������ But that is not always the case. You can still walk for some distance.

N2>A.������ True, it happens all the time.�

The plaintiff�s evidence varied somewhat from the medical report although the doctor does not seem to have touched on the walking and balancing problem from which the plaintiff states that he is suffering. Needless to say the plaintiff�s evidence is supported by the medical report to a certain extent when the doctor said: �He may be suffering from delaying effect of head injury.� Clearly an up to date medical report would have assisted me in this matter. It was not forthcoming.

Lasam Napo, the wife of the plaintiff, gave evidence and she said that at the scene of the accident she saw injuries on her husband�s head. That is not supported by any of the evidence and I do not accept it.

She went on to say that he is not able to do things the same as before the accident. She even said that he does not work and he doesn�t control himself and he doesn�t think or speak well.

Lasam Napo�s evidence is not inconsistent with Dr Nemba�s observations and she is also at variance with what her husband said. In particular to his work situation.

I am of the view that Lasam Napo was not a reliable witness. She was being dramatic and was prepared to say some things that were untrue in an obvious effort to get the best result possible for her husband.

Helen Jack, the wife of a relative of the plaintiff, also gave evidence and said: �Before he was okay but he�s not now ... he does not work and does not think properly.�

When asked: �Is he able to remember as well now as before the accident,� she said, �No.�

Her evidence did not assist me to any great extent as I suspect that she and Lasam Napo had discussed their statements prior to coming to court. I was also of the view that Helen Jack was prepared to say anything to assist the plaintiff.

There is no doubt that the plaintiff was seriously injured on 9 November 1984. The fact that he was unconscious for five days is serious enough in itself. I am satisfied that he has not fully recovered from the injuries and it seems unlikely that he ever will. He is now in his early fifties, although visibly he seems older. Although I find that he was colouring the situation a little, I am satisfied that he does have trouble walking distances and I gather that problem has something to do with his balancing problem. Needless to say I am satisfied that he is still able to work and walk.

There seem to be no precise reported cases to assist in assessment of general damages but Mr Lambu did refer me to three cases that he considered might assist. The first was Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219:

�The plaintiff suffered brain injury and was left with some permanent disabilities. Confusion, progressive memory disturbance, psychoneurosis, likely deterioration of the cervical spine. The plaintiff was not able to do pre-accident duties and it was likely that institutionalisation would be necessary in the future. The plaintiff was awarded K25,000 general damages which was not altered on an appeal to the Supreme Court.�

In Pose v The Independent State of Papua New Guinea [1981] PNGLR 556 (National Court):

�The plaintiff, a female child aged two (seven at trial) was involved in an explosion aboard a boat, suffered a fractured skull causing brain damage resulting in right sided hemiplegia from which she had at the date of trial recovered to the extent that any permanent disability would be reduced to minor loss of function of the right leg and arm. The plaintiff was awarded K9,000 general damages.�

In Undapmaina v Talair Pty Ltd [1981] PNGLR 559 (National Court):

�The plaintiff, a female child aged nine years old (nearly 11 at trial) was injured in an aircraft accident. On admission to hospital she had a three inch transverse scalp laceration exposing the periosteum but there was no fracture. There was a fracture of the left femur and a fracture of the right tibia. A pin was inserted in the left leg for traction to the femur and the right leg was put in plaster and the scalp wound sutured. She was hospitalised for two months and her recovery was uncomplicated apart from an infection of the scalp wound which was satisfactorily overcome. In his judgment his Honour the trial judge held that the evidence of nervous shock, physiological instability and anxiety state was in the circumstances more than a normal state of grieving and was compensable. The plaintiff was awarded K10,000 general damages.�

Mr Lambu has submitted that those cases were far more serious than the present. I wonder. The plaintiff was unconscious for five days and he now suffers from walking and balancing problems from which he will probably never recover.

I also am aware that the cases cited go back quite a few years and it is now clear that awards for damages have increased since the early 1980s.

I am of the view that a proper figure for general damages is K9,000.

From that figure, I deduct 20 per cent because of the plaintiff�s contributory negligence.

I therefore order that there be judgment for the plaintiff in the sum of K7,560 made up as follows:

Order that the defendant pays the plaintiff�s taxed costs on the National Court scale.

Judgment accordingly

Lawyer for the plaintiff: D L O�Connor.

Lawyer for the defendants: State Solicitor.