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Taka v Kipi and The State [1995] PGNC 154; [1995] PNGLR 254 (17 February 1995)

PNG Law Reports 1995

[1995] PNGLR 254 - John Taka v Leo Kipi and The State�

[1995] PNGLR 254

N1301

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JOHN TAKA

V

LEO KIPI;

THE STATE

Mount Hagen

Woods J

16 December 1994

17 February 1995

NEGLIGENCE - Motor vehicle accident - Passenger in back of utility - Whether contributory negligent.

DAMAGE - Personal injuries - Paraplegic - Village man - General damages - Periodic payments for future loss.

CONSTITUTIONAL LAW - Periodic payment of damages - Constitution, s 155(4).

Facts:

The plaintiff was a passenger on the back of a Toyota Land Cruiser utility owned by the State and driven by Leo Kipi, an employee of the State. As two vehicles were blocking the highway, the driver drove off the road to get around the vehicles. It was wet and the driver lost control and the vehicle overturned and rolled several times. The plaintiff was thrown off and received severe injuries to his spine resulting in him becoming a complete paraplegic.

Held:

N1>1.������ Whilst it is allowed by law for persons to ride in the back of utilities without seats and appropriate safety features, then a court cannot find such passengers partly negligent without evidence that the manner of riding actually contributed to causing the accident.

N1>2.������ There is a responsibility on the Court to consider the future interests of the plaintiff, and where a plaintiff may be unable to manage a large sum, awarded as damages, the Court should consider making orders for periodic payments for future economic loss, notwithstanding that at Common Law the existing principle does not permit such awards.

Cases Cited:

Are v M.V.I.T. [1991] PNGLR 456

Kandaso v M.V.I.T. [1992] unreported N 1074

Kupil & Kensa v The State [1983] PNGLR 350

Pupu v The State [1979] PNGLR 108

Wally v M.V.I.T. [1992] unreported N 1029

Counsel

P Dowa for the plaintiff.

M. Pokia for the defendants.

17 February 1995

WOODS J: The plaintiff is claiming damages for personal injuries he received in a motor vehicle accident which occurred near Sangurap at Wabag in Enga Province on 29 August 1991.

On the day in question the plaintiff was a passenger on a motor vehicle a Toyota Land Cruiser Utility, registration No ZGA 672, owned by the State which was driven by a Leo Kipi an employee of the State. The driver stopped at an obstruction on the highway near Sangurap created by two vehicles blocking the road. Instead of waiting for the other vehicles to move the driver decided to go off the side of the road to get around the other two vehicles. However the sides of the road were wet and slippery and the driver lost control and the vehicle overturned several times off the road and the plaintiff who was on the back was thrown off and severely injured. The driver was charged by the police for negligent driving although it appears the charges were never pressed through the court.

The State has admitted some liability although submits that there was some contributory negligence in the plaintiff in riding on the back of a vehicle not designed to take passengers on the back. Whilst there have been cases where the riding on the back of a vehicle has been considered to be contributory negligence this has not necessarily been applied in all cases. In Are v M.V.I.T. [1991] PNGLR 456 the court found no evidence that the plaintiff was doing otherwise than riding normally on the back and the negligence in that case was wholly in the driver. Thus the riding in the back did not help towards the plaintiff�s injuries such as compared with Wally�s case [1992] unreported N1029 where the manner of riding on the back actually helped to cause the injuries. And in the case Kandaso v M.V.I.T. [1992] unreported N1074 I ruled that whilst the authorities 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 Wally�s case above referred to. In this case before me now the driver took a stupid course of action which directly caused the injuries. I find no contributory negligence in the plaintiff.

QUANTUM

As a result of the accident the plaintiff received a fracture of the lumbar spine. severe anterior crush fracture of the second lumbar vertebrae and has in effect become a complete paraplegic unable to use the legs and lower body. The plaintiff is in his late 20�s and whilst in effect a village man with little formal education had taught himself some motor mechanic skills and was an experienced driver and did earn an income of about K100 per fortnight as a driver.

In the village environment and with no formal education the plaintiff�s enjoyment of life and ability to live independently is completely impaired and he will be confined to a wheel chair for the rest of his life and will require continual assistance from others for all his needs. Awards of general damages for paraplegia have ranged from K30,000 in 1979 in the Pupu case [1979] PNGLR 198 to K90,000 in Kupil & Kensi v The State [1983] PNGLR 350 and Kandaso v M.V.I.T. [1992] unreported N1074. I am satisfied that K90,000 is still an appropriate figure to consider as general damages in this case now. I will allow for interest on K20,000 of the general damages at 8 percent from the date of the writ which assesses at K1,735.90.

For economic loss I am satisfied that the plaintiff has lost all chance of earning his way in the village subsistence economy and further that he would have had some cash income from his driving ability although not necessarily as a permanent wage earner. I will consider a loss of income from the date of the accident to to-day of K50 per week. Past economic loss therefore from 29 August 1991 to to-day is K9,100.00. Interest on that at 4 percent from the date of the accident comes to K 1,270.50

As I have already noted the Plaintiff is a paraplegia who will be confined to a wheel chair for the rest of his life and will require continual assistance from others for all his needs. Normally at common law the principle is to calculate all the losses into a capital sum which becomes part of the capital amount of the judgement. This was a problem for Bredmeyer J in the case Kupul & Anor v The State, referred to above, when he noted that the existing common law does not permit for orders for periodic payment of damages and yet he ordered periodic payments. I agree with much of what His Honour said in that case. My concern is that there is no system in place for most people in PNG to effectively manage large sums of damages to fully protect their future interests. Most people do not have the continual access or use of bank managers and financial advisers. Such large sums of money as could be awarded in a case like this one, are outside the realm of customary law and practice. But such problems as can be faced with large awards for serious injuries have even been discussed in other jurisdictions as Bredmeyer J noted in the Kupil case when he referred to Australian studies into personal injuries compensation which noted that the lump sum system, affords no safeguards that the money awarded as damages will be spent on rehabilitating the victim and supporting them and their families.

Bredmeyer, J stated that Constitution s 155(4) provided the basis for him to make such orders as are necessary to do justice in the circumstances of the particular case and proceeded to make orders for periodic payments.

I am satisfied that there is a responsibility on this court to consider the future interests of the plaintiff and make an appropriate order to ensure that he is guaranteed a regular sum to cover his difficulties and the need for continual care. So I will consider the award for future economic loss and care needs in a fortnightly amount which I will assess at K70 per week or K140 per fortnight.

Whilst it is not necessarily up to me to suggest how the State should pay these monies I can see no reason why the fortnightly amounts cannot be incorporated through the Department of the Attorney-General onto the Government Payroll system and paid through a bank account in the name of the plaintiff. It would be up to the Solicitor-General to track the life of the plaintiff and be advised of his eventual demise in the future.

I therefore order:

These amounts totalling K102,106.40 are to be paid by the defendants to the plaintiff forthwith.

And I further Order that defendants to pay to the plaintiff the sum of K140 per fortnight for life.

Judgment for the plaintiff as above.

Lawyer for the plaintiff: Paulus M Dowa

Lawyer for the defendant: Solicitor-General