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David v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 57; [1993] PNGLR 356 (17 August 1993)

PNG Law Reports 1993

[1993] PNGLR 356 - Anna David v MVIT�

[1993] PNGLR 356

N1164

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANNA DAVID

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

17 June 1993

19 July 1993

17 August 1993

NEGLIGENCE - Personal injuries - Motor vehicle accident - Liability - Part of a large crowd next to the road - Driving too fast when approaching large crowd.

DAMAGES - Ankle and foot injuries - Partial disability - General damages K9,000.

Facts

The plaintiff claims damages for injuries suffered when she was struck by a vehicle which veered off the road and hit her. She subsequently had an operation on her leg and showed signs of continuing impairment. However, she did not present the court with any medical reports on the original injuries or treatment recommended and received.

Held

N1>1.������ The act of driving a vehicle too fast in the vicinity of a crowd is an indication of negligent driving.

N1>2.������ Where a plaintiff pleads injury over and above that which is apparent from the initial injury, there is an obligation to prove the case on the balance of probabilities. While the plaintiff satisfied the court on liability and on the initial injury, beyond those, she had an obligation to accord the court more medical evidence, especially that available from the initial examination and treatment.

Cases Cited

Kapia v Motor Vehicles Insurance (PNG) Trust (1991) unreported N1024.

Koieba v Motor Vehicles Insurance Trust [1984] PNGLR 365.

Counsel

P Ousi, for the plaintiff.

A Kandakasi, for the defendant.

17 August 1993

WOODS J: The plaintiff is claiming damages for injuries she received when she was struck by a motor vehicle on the Enga Highway near the Lai River Bridge near Rakamanda in Enga Province on 1 April 1989. She states that she was attending a baptismal ceremony and there were hundreds of people in the area when a motor vehicle owned by the Post and Telecommunication Corporation went out of control due to the negligence of the driver and veered off the road. It struck her and caused injuries whereby she was hospitalised and has suffered permanent disability.

She says that she saw the vehicle going from side to side as if out of control, or as if the driver was drunk, and that the vehicle struck another person before it struck her. She says that she was standing just off the side of the road, not on the road, and that the vehicle steered off the side of the road when it struck her.

Her story is supported by other witnesses who were at the scene. They give a story of many people gathered for the baptism and the vehicle identified as a Post and Telecommunication Corporation vehicle, striking one person then seemingly carrying on out of control and striking the plaintiff. One of the witnesses said he knew the driver, Mr Daniel Kaiko, as he lived in the same village. There were suggestions that, having struck one person, the driver may have been trying to get away, as he was frightened. However, whether he was frightened or not, the fact is that the evidence from the plaintiff and other witnesses suggests that the driver must have been driving too fast when he approached the area where the people were gathered beside the road. Having struck one person, he was clearly driving too fast to have continued the way he did and struck the plaintiff.

The driver, Mr Kaiko, gave evidence. He said that as he was driving along the road he was stopped near Rakamanda by some drunk people, who then got nasty with him and tried to stone him. In trying to get away from them, he was struck on the head with a stone and went out of control. When he realised he had hit a pedestrian, he feared for his life and tried to get away. In doing so, he further lost control and realised he had hit another pedestrian.

The police came to the scene after the incident and after the injured had been taken to hospital. However, people at the scene told the police what had happened, and the investigating officer took measurements of the skid marks shown to him. He estimated that the driver was driving fast. He interviewed the driver the next day in Mount Hagen.

There is, therefore, no question that it was the vehicle alleged as driven by Mr Kaiko that struck the plaintiff that day. However, it is submitted that there was no negligence in the driving of the driver; rather, it was the actions of the men who accosted him at Rakamanda and the others who threw stones at him which caused him to go out of control and strike the plaintiff. It is suggested that the driver had no option but to try and get away in whatever manner he could to avoid being attacked himself. I have not been referred to any authority that a possible fear of attack is a legal excuse for negligent driving in the manner described. It is not clear that the initial confrontation as described by the driver was serious enough to fear for his life. And his driving after that can only be seen as negligent. He must have been driving too fast in the vicinity of a crowd to have continued for so long out of control and knocking down two pedestrians. I can find no negligence or contributory negligence in the plaintiff.

DAMAGES

The plaintiff was knocked down and was rendered unconscious by the vehicle and was taken to Sopas hospital. She apparently suffered severe leg injuries and some minor abrasions elsewhere on the body. Unfortunately, there is no medical report from the Sopas hospital. However, other witnesses confirm that she was taken to the hospital. She had to have an operation on her leg. She refers to a plate being put in her ankle and her leg and foot were immobilised in plaster for about six weeks. She initially went to Sopas Hospital but was soon moved to Hagen Hospital. She and her husband apparently lived in Mount Hagen. She says that she had to buy some crutches to get around with, and she still has difficulty getting around. A recent medical examination suggests that the original injury was unstable, and the healing left an abnormal gait. There is no evidence as to why the treatment did not result in a complete healing of the fractured ankle. There is no medical evidence before the court of the original injury and the treatment accorded and recommended. The question is, therefore, raised as to whether there was any intervening factor which has affected or influenced the healing. There is an obligation on a plaintiff to prove the case on the balance of probabilities. Whilst the plaintiff here has satisfied the court on liability and on the initial injury, I feel that there was still an obligation on the plaintiff to accord the court more medical evidence, especially that available from the initial examination and treatment. Therefore, whilst I accept there may be some residual disability, I am not prepared to accept the 70 percent disability, as suggested by the recent medical examination, is the responsibility of the defendant, flowing from being struck by the vehicle on 1 April 1989.

I will, therefore, assess damages on the initial injury to the foot and ankle, the incapacity whilst the leg and foot were immobilised, and some residual incapacity following such an apparent compound fracture. The plaintiff is a married woman who was aged about 32 at the time of the accident. She has no separate employment, but would seem to be a housewife living in Mount Hagen.

I am satisfied that the case of Koieba v Motor Vehicles Insurance Trust [1984] PNGLR 365, where there was a shortening of the leg and general damages was assessed at K19,000, was far more serious than this one.

In Kapia v Motor Vehicles Insurance (PNG) Trust (1991) unreported N1024, the plaintiff was an elderly village woman who sustained a comminuted fracture of the left ankle, which left her unable to do much of the garden work required of her in the village economy. I feel that is a more serious case than the one before me.

I assess an amount of K9,000 for general damages. There was no evidence of any economic loss, so I cannot find any amount for economic loss. There were some minor out of pocket expenses, namely the crutches for K5. Interest will be added at 7% from the date of writ to date of judgment, which comes to K1,500. Judgment for K10,505.

Lawyer for the plaintiff: Warner Shand.

Lawyer for the defendant: Young & Williams.