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Wisi v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 12; N1040 (4 March 1992)

Unreported National Court Decisions

N1040

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 997 OF 1990
BRAS WISI
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
20 December 1991
30 December 1991
6 February 1992
4 March 1992

NEGLIGENCE - Pedestrian - Motor vehicle - Liability

DAMAGES - Personal Injuries - Leg - Young Village man

Cases Cited

Genbi v The State [1988 - 89] PNGLR 662

Gokam v The State 1990 N826

Kirai v The State 1990 N821

Kunton v M.V.I.T. 1991 N997

Pendagi Ban v The State 1990 N827

Counsel

P Dowa, for the Plaintiff

A Kandakasi, for the Defendant

4 March 1992

WOODS J: The Plaintiff is sfor dama damages for injuries he received when he was struck by a motor vehicle a Mitsubishi L.200 Registered No AFU 925 on the 20th April 1990 on the Hagen - Wabag Highway at Piakona in the Western Highlands Province.

The Plaintiff states that at about 9am he was walking along the Highway at Paikona on the left hand side walking towards Hagen when a vehicle coming from behind came over too far to the left and struck him knocking him unconscious and injuring his leg. He says he was with 2 other boys and they were walking down to get a PMV into Hagen. At the time there were a number of people on or near the road, some dressed up to go into Hagen because it was a big day when the Prime Minister was visiting Hagen. He said there was another vehicle coming the other way from Hagen at the time and it came to a stop across from where he and his friends were walking. He states the vehicle that struck him was travelling fast.

Wakadui Tembrum was walking with the Plaintiff just behind him and confirms the Plaintiff’s story of the vehicle travelling too fast and coming across to the edge of the road and hitting the Plaintiff. Simbil Kogwe a village councillor says he was at the road at the time with other people and saw the incident. He then helped to take the Plaintiff to the Hospital. He says he went to the Police Station to report the accident and gave details of the vehicle concerned. He says he found the vehicle about 2 weeks later in Mt Hagen and notified the police. He refers to the owner saying that the driver had gone off to Madang after the accident. Simbil then gave evidence of negotiation to pay some compensation of 7 pigs and K170.00 cash.

A Policeman Samson Saniamango gave evidence of being on duty on the 20th April 1990 and of Simbil Kogwe coming into the Station to report a hit and run accident at Paikona. He said he interviewed the Plaintiff. Then 2 to 3 weeks later Simbil came and reported he had found the vehicle. Samson says when he spoke to the owner of the vehicle about the accident the owner said that someone else was driving that day and that driver had run away after the accident.

The Defence brought a witness Amos Anjop who was a passenger in the Mitsubishi and says that as they were driving down the Highway at Paikona there were a lot of people on the road and the driver of his vehicle slowed down and sounded the horn but the Plaintiff crossed across in front and was struck by the vehicle. He said the driver drove into the Police Station at Mt Hagen to report the accident but the police were too busy at the time.

I am faced with 2 stories, the version given by the Plaintiff and his witnesses which supports the negligence of the driver of the vehicle and the story given by a passenger in the motor vehicle concerned. Unfortunately there is no true independent assessment of the situation. There is no evidence by someone who is not concerned with either party nor by a policeman who investigated the scene the same day. The Police report on which the Court should always be able to rely upon as an independent assessment was only prepared on the basis of the story given by the Plaintiff’s witness. However the Police report does have some weight in that in spite of what Amos said it suggests it was the Plaintiff’s witnesses and relatives who made the first report to the Police of the accident. There is no evidence from the police that the driver or owner of the subject vehicle made any attempt to report the accident immediately after it happened. It was the driver’s responsibility to report the accident immediately to the Police and ensure medical attention was summoned to the scene. There is no evidence that that was done. The Court must be entitled to assume that the version of the accident given to the Police and recorded by them is the correct one. That therefore must weigh the balance in favour of the version of the accident given by the Plaintiff. The onus in civil cases is on the balance of probabilities and I therefore find on that balance in favour of the Plaintiff. I am satisfied that the subject vehicle was driving too fast and carelessly in the circumstances namely when there was clear evidence that there were many people on or adjacent to the road.

It is often found that when pedestrian are struck by vehicles there is at least some contributory negligence on the pedestrian. Whilst it is all to easy to assume that Highways are constructed for the use of motor vehicles and not pedestrians it is a fact of life in Papua New Guinea that Highways are used equally by pedestrians. There are no special paths constructed for people using the roads as a walking road so in fact as I said in KUNTON v MOTOR VEHICLES INSURANCE (PNG) TRUST 1991 N997 there must be a balance between the rights of motor traffic and the rights of pedestrians. There are of course rules and safety standards to be applied by both. So in this case with a number of people on or adjacent to the road there was an obligation on the driver to be more careful and slow down however there was also an obligation on pedestrians to observe appropriate care and walk well off to the side of the coaltar and keep an eye on the traffic. Here the Plaintiff was walking on the left side of the road where he could not see the traffic coming behind him on his side. So as I found in Kunton’s case whilst there is evidence of speed and careless driving the Plaintiff may not have been acting as carefully as he should have so I will find some contributory negligence in the Plaintiff. I apportion liability at 20% to the Plaintiff and 80% to the driver of the motor vehicle and thus to the Defendant.

DAMAGES:

The Plaintiff was aged about 16 years at the time of the accident and was admitted to Mt Hagen General Hospital following the accident with a compound fracture of the left leg and minor abrasions.

He spent 5 weeks in hospital. Recent medical reports suggest that the fracture was managed well. However the reports do support a slight functional loss and slight pains which will recur in that leg although generally there is no obvious problem in mobility. It is noted that there is some scarring on the leg from the compound fracture. The Plaintiff says that when he walks long distances the leg does swell a bit and he feels pain.

The Plaintiff is a villager with no employment possibility apart from the physical work required in the village subsistence and cash crop economy. Therefore any physical difficulty will affect him in his every day life. Because of his youth it is difficult to establish any direct economic loss. I find it is appropriate here to make an assessment of Damages as a global amount to cover pain and suffering and loss of amenities and a slightly reduced ability to fully participate in the village subsistence economy.

This case is not as serious as the case Gokam v The State 1990 N826 where there was 45% permanent disability in the use of the left knee with a 5% in the right leg.

This case is closer to the case of Kirai v The State 1990 N821 which involved a young man receiving a simple fracture of the leg. There an amount of K4,000 was awarded for general damages. Also in Gemdi v The State [1988 - 89] PNGLR 662 with 5% loss of function of the leg an award of K6,000 General damages was awarded. I was also referred to Pendagi Ban v The STATE 1990 N827 where a young girl suffered 15% disability to the leg and an assessment of K14,000 was made. However that case was clearly more serious than the case before me now as in that case there was some angulation following the healing and some shortening of the leg.

I assess a global amount of K7,000 for general damages to cover pain and suffering and loss of amenities and future limitation on economic earnings. That figure is to be reduced by 20% for Contributory negligence. Plus on the evidence there was compensation of pigs and cash paid to a total value of K1,000. I will apportion one third of the total to loss to date.

I order judgment for the Plaintiff of K4,774.09

Lawyer for the Plaintiff: Henao Priestly

Lawyer foer for the Defendant: Young & Williams