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Walpe v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 42; N1133 (29 January 1993)

N1133

PAPUA NEW GUINEA
[In the National Court of Justice]

W.S. 699 of 198f9

DAMI WALPE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

MOUNT HAGEN: WOODS J
13, 14, 29 January 1993

Motor vehicle accident - unidentified motor vehicle - action for damages for personal injuries - due inquiry and search - negligence - balance of probabilities.

Damages - villager - back injuries - General Damages K12,000.0.

Cases cited

The following cases are cited in the judgement:
Mangoi V MVIT [1990] N876
Make Kewe V The State [1986] PNGLR 279
Kama Pupti v The State [1986] PNGLR 283
Kuntu V MVIT [1991] N996

P Kopunye for the Plaintiff.
A Kandakasi for the Defendant.

29 JANUARY 1993

WOODS, J.: The Plaintiff claims he was injured on 29th September 1987 when he was driving his motor vehicle a Toyota utility along the Okuk Highway in the Chimbu Province and was forced off the road 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 after due enquiry and search be established and the claim is therefore brought against the Motor Vehicles Insurance (PNG) Trust by virtue of s 54 (1) (c) of the 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 the 29th September to go to Kundiawa. On the way he picked up some people from his area. When he was getting closer to Kundiawa he came around a corner and found another vehicle travelling straight for him, cutting the corner and 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 they were taken to the scene it appears that the plaintiff was on the inside as he approached the bend and the other vehicle had apparently cut the corner in coming around the corner. 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 the other vehicle and 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 found himself being pulled out of his vehicle by other people and then because he did not want to leave his vehicle in the ditch in a strange area he managed to get his vehicle back onto the road and slowly drove it into Kundiawa to report it to the police. He told the police about the other vehicle which looked like a white Toyota Stout and 2 police took him with them to the scene to do a report and to see whether they could find the other vehicle. They asked people along the road if anyone had seen a white Toyota Stout but were unable to find the vehicle or any report of such a vehicle.

The plaintiff brought witnesses to support his story. Two passengers from his vehicle gave similar stories to him of being in the back of the vehicle and as they approached the corner another vehicle cut the corner and forced their driver into the ditch. They could not identify the vehicle other than to say it was a white Toyota utility.

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

Is this sufficient due inquiry and search? There was inquiry and search by the plaintiff and 2 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. I know that 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 the case Mangoi V M.V.I.T. 1990 N876 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 as to how it 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 and in view of the nature of the extent of the Highway and 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 is submitting 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 plaintiffs 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 suggests that the plaintiff was going too fast and therefore he was contributory 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 and so long as one is travelling at a speed which ensures you yourself will not stray across onto the wrong lane then 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 2 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 attended 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 it 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 his 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 Suzuki 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 and even then it was not admission to hospital but attendance at the outpatients. 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 but perhaps a pre-existing back problem may have been exacerbated.

In Kama Pupti [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 the case Kewe v The State [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 and was awarded K20,000 general damages. In Kuntu v MVIT 1991 N996 the plaintiff a young village man received back and arm injuries and received K18,000 general damages. Again I think 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 an amount of 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 case Kewe referred to above and Matabe [1988-89] PNGLR 309 global amounts were awarded for economic loss is such situations. I here assess K3,000 as a global amount for economic loss. I allow interest on half the general damages at 8% from the date of the writ to to-day.

To summarise: -

I order judgement for K16,743.78.

Lawyer for the Plaintiff: Kopunye Lawyers
Lawyer for the Defendant: Young & Williams