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Manios v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 23; N1073 (1 July 1992)

Unreported National Court Decisions

N1073

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 1297 OF 1990
JECKY MANIOS V MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
20 May 1992
22 May 1992
1 July 1992

NEGLIGENCE - motor vehicle accident - contributory negligence - driver suspected faulty steering.

DAMAGES - personal injuries - foot - village woman - global award of K16,000 for general damages and economic loss.

Cases Cited

Oroeala v M.V.I.T. [1988-89] PNGLR 645

Pendagi Ban v The State 1990 N927

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

Wally v M.V.I.T. 1992 N1029

Counsel

P Dowa, for the Plaintiff

A Kandakasi, for the Defendant

1 July 1992

WOODS J: & The Plaintiff is clis claiming damages for personal injuries she received in a motor vehicle accident which occurred on the Kaiap Road Wabag on the 5th May, 1990.

The Plaintiff'sence at on Saturday 5 ay 5 May 1990 she was in Wabag looking forg for a ride to a village on the Kaiap road when Paul Sakaip came past driving a Toyota Landcruiser registered No AFR 635. He agreed to give her and others with her a ride and they got onto the back of the vehicle. While driving up the Kaiap road which is a very steep and narrow road the driver lost control of the vehicle and it rolled off the road. The plaintiff lost consciousness and recovered consciousness in hospital suffering from leg injuries. A number of witnesses confirmed the plaintiff's story of the ride in the vehicle and the accident.

The defendant has denied liability. Whilst I am satisfied that the plaintiff was injured in the subject vehicle when it ran off the road I am asked to carefully consider certain aspects of the evidence.

The defendant is submitting that the plaintiff contributed to her own injuries by boarding the vehicle which she knew was defective and not roadworthy and she also boarded the vehicle without the express approval of the driver.

However there is no direct evidence of the vehicle being defective. It was suggested on the evidence that the vehicle may have been some years old but there is no technical evidence to show it was defective. Mathew Masket gave evidence of being asked to repair the vehicle after the accident and he noted no defects with the steering. The driver of the vehicle Paul Sakaip refers to the steering getting out of control and spinning causing the vehicle to run off the road. There is no evidence to suggest that was caused by a steering defect. The road is a very steep road and from my own knowledge it can be rutted and stoney and such conditions can cause the wheels to change direction and spin the steering wheel if you do not drive carefully and keep a strong control of the steering wheel.

The evidence is that after the accident when questioned by police the driver said that he had decided not to carry any passengers from Hagen because he "felt there was a steering fault and the steering is not steady as normal". When he got to Wabag the people from his same village they were already on the vehicle and "I told them that the vehicle has a problem so told them to move out but they refused. They refused so I drove slowly towards village". So even suspecting a steering fault he still drove from Hagen to Wabag. This clearly places the responsibility for negligence on the driver. If a driver suspects or knows there is a mechanical fault in a vehicle which could affect the safety of himself and any passenger yet he still drives the vehicle this is a gross irresponsibility almost amounting to criminal negligence. It was his responsibility to stop driving the vehicle and leave it to be checked or repaired at the nearest repair place. By driving it with passengers he is assuming liability for any accident that may happen.

Of course the plaintiff and other witnesses deny there was any conversation about any fault with the vehicle or about them not being allowed on. In view of Paul Sakaip's acknowledgement of a possible fault I must place full liability for negligence on the driver of the vehicle.

With respect to any contributory negligence for riding on the back of an open back utility I find that the injuries suffered by the plaintiff was not contributed to by the riding on the back without safety features but by the manner of the driving of the vehicle. Whilstever the authorities which include the defendant condone by inaction the riding on the back of utilities without seats and appropriate safety features then I cannot find such passengers partly negligent without special aspects of the riding in the back such as was found in the case of Wally v M.V.I.T. 1992 N1029 and Oroeala v M.V.I.T. [1988-89] PNGLR 645.

I am therefore satisfied that there is a claim for negligence against the driver of the vehicle AFR 635 and therefore against the Motor Vehicles Insurance Trust.

ON QUANTUM

The Plaintiff suffered a severe degloving injury to the left foot which became infected from soil and matter at the scene. She was admitted to the Sopas Adventist Hospital near Wabag. The wound required some skin grafting which took well but she continued to complain of some pain in the left foot and the doctor estimated a 15 percent long term loss of function of the foot. She spent 2 months in hospital but then had to attend for outpatient treatment for some months and was not expected to be able to resume normal activities until in December 1990.

The Plaintiff has claimed a permanent disability of 15 percent in the left foot. I see no reason to dispute this assessment and it is clear that she has some difficulty with her left leg and foot however it is not such that she cannot participate in certain of the work required of her in the village economy. She was hospitalised for some time and from the nature of the injury she must have been in some pain. She then spent some months recuperating and she now has an ugly scar on the foot. She now seems to be walking all right.

I consider the cases of Pendagi Ban v The State 1990 N827 and Put Kunton v M.V.I.T. 1991 N997 to be analogous cases for the level of disability to the leg.

She is also claiming economic loss from being unable to work in her garden as required in the village subsistence economy. It is difficult to assess economic loss for a person like the plaintiff who is not in the modern work force. She clearly could not do any work in the garden whilst in hospital and for some months after. And she will be unable to work as hard as normal with her residual disability. I will include an amount to cover economic loss both past and future in a global award of general damages.

I assess damages at K16,000. I will apportion K5,000 of that to the period up to date and allow interest at 4 percent on that from the date of the writ being 19th December, 1990 to today being K306.30

I order judgment for K16,306.30.

Lawyer for the Plaintiff: Henao Priestly

Lawyer for the Defendant: Young & Williams.