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Oni v Motor Vehicles Insurance (PNG) Trust [2004] PGNC 16; N2767 (16 November 2004)

N2767

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 278 OF 2000

BETWEEN:

SWINGLEY ONI

Plaintiff

MOTOR VEHICLES INSURANCE (PNG) TRUST

Defendant

GOROKA: BATARI, J
2004: November, 8, 16

NEGLIGENCE – Motor Vehicle accident –Vehicle rolled over –Res ipsa loquitur – No real explanation for accident.
NEGLIGENCE – Motor Vehicle accident – Liability – Passenger on overladen vehicle that overturned – Contributory negligence.
EVIDENCE – Motor Vehicle Registration and Insurance – Proof of by observation.
EVIDENCE –Statistical Officer publication – Proof of – Evidence Act s.59 considered.
DAMAGES – Shoulder dislocation– Plaintiff 23 year old subsistent farmer - 70% permanent disability.
DAMAGES – Awards – Increase of - Relativity of awards to inflation – General Damages K32,000.00

Cases Cited:
Maria Sam v MVIT (Unreported National Court Judgement) No. 1022
MVIT v Tabanto [1995] PNGLR 214
Nali Matabe v The State & MVIT [1988] PNGLR 309
Kaumb Joseph v MVIT [1990] PNGLR 456.
Davi Goiye v The State, (1987) N642
Cecilia Dir v MVIT (1991) N984
Nomane v MVIT (22/11/91) N1019
Pep v Bakri Yamba and The State [1987] PNGLR 485
Kaka Kopu v. The State [1980] PNGLR 557
Kokoknas Kandapak v. The State [1980] PNGLR 573
Kuriti v The State [1988-89] PNGLR 633
Shelley Kupo v. MVIT (2002) N2282
Bea Maxie v The State (Unpublished NC Judgment WS 028 of 1998)

Counsel:
J Bray for the Plaintiff

M Titus for the Defendant

JUDGEMENT

16 November 2004

BATARI, J: By Writ of Summons filed on 15 March, 2000 the Plaintiff sues the Defendant for a shoulder injury he suffered as a result of a motor vehicle accident on or about 21 February 1998 along South Fore/Okapa road in the Okapa District of Eastern Highlands Province. It is alleged that the vehicle, registered with the Defendant as BAD 193 and driven at the time of the mishap by Freddie Wai, rolled backwards while trying to ascend a hill and over-turned. The Plaintiff who was riding at the back of the vehicle was injured as a result and treated for shoulder dislocation and general soft tender injuries at Goroka General Hospital. It is alleged against the driver that he was negligent in failing to control the vehicle properly causing the vehicle’s engine to stall. The particulars of the negligence alleged are that the driver failed to:

(a) stop, slow down or alter the course of the vehicle as a reasonably prudent driver would have stopped, slowed down, or altered the course of the vehicle so as to avoid the accident;
(b) keep the vehicle on the road;
(c) Failed to engage the appropriate gear or maintain sufficient engine revolutions for climbing up the hill;
(d) to drive the vehicle with due care and attention;

In its defence, the defendant pleaded general denials and also alleged contributory negligence particulars of which are alleged as follows:

(a) Failing to take any adequate care for his own safety.

(b) Failing to hold onto any safe or secure device or solid part of the vehicle.

(c) Consenting to being driven in an open back tray vehicle, which was not equipped with safe seating and failing to sit safely or securely in such vehicle.

(d) Consenting to being driven in an open back vehicle that was grossly overloaded.

This trial on is both liability and quantum. In support of his claim, the plaintiff called oral evidence and also relied on documentary evidence. Oral testimony was given by the Plaintiff and five other witnesses, two of whom were independent and come within the ambit of expert witnesses. Documentary evidence is in the form of a Police Road Accident Report, certificates of qualifications of the expert witnesses and a medical prognosis of the Plaintiff’s current disability.

A consumer Price Index compiled by the national Statistical Office in Port Moresby was also tendered and admitted amidst tentative protests by Counsel for the Defendant, Mr Titus on the basis that it was not a properly authenticated document for admission under s.59(1) of the Evidence Act. Section 59(1) reads:

"(1) A document purporting to be published by the Statistical Officer and to contain statistics or abstracts of statistics compiled and tabulated by the Statistical Officer by virtue of the Statistical Services Act (Chapter 386) is evidence in a Court that the statistics or abstracts were so compiled and tabulated".

Mr Bray for the plaintiff had initially intended to simply tender the Consumer Price Index document under s. 59(1) submitting that, as a purported document published by the Statistical Officer with the official stamp and the accompanying letter head, it needed no further proof of its origin and authenticity as the document speaks for itself.

Whilst it is accepted that common sense should prevail in the tender of public documents such as the one in question, it does not follow that one can simply walk into Court and tender into evidence, a document purportedly compiled by the Statistical Officer. Section 59 in my view does not confer on a person who intends to rely on a purported publication from the National Statistics Office, the absolute right to simply hand up a copy of the publication to the Court. The Consumer Price Index document itself is admissible evidence of the fact that the statistics and abstracts of statistics contained therein are statistics and abstracts compiled by the Statistical Officer under the Statistical Services Act, Ch.386. If it is intended that the document be admitted into evidence under s.59 of the Evidence Act, the document must first pass the test of authenticity and the minimum requirement is, in my view, to prove by way of affidavit, the source or and originality of the document. Where an objection is raised concerning the authenticity of the document the party intending to rely on it should show its authenticity and the minimum requirement to do that I suggest is by affidavit form under s.34 of the Evidence Act. The document in question is now in evidence after Mr Bray filed an affidavit from a lawyer who had initially requested the document from the National Statistical Office. That in my view meets the minimum requirement under s.59 of the Act.

Liability

The evidence on the issue of liability is substantially uncontradicted. The Plaintiff testified that he was a passenger riding on the open back of utility namely, a Toyota Stout vehicle when the engine suddenly cut off while ascending a 35 to 40 degree gradient along Okapa/South Fore road and rolled back some 10 metres before over-turning. He was thrown off as result of the vehicle over-turning and injured his right shoulder. His story of the accident is confirmed by policeman, Senior Constable Andrew Naikabam whose investigation of the accident three days after it was reported included a visit to the scene and seeing a Toyota single cab Hilux vehicle lying on the road side in an upturned position. I accept the policeman’s evidence as correctly describing the type of vehicle that the Plaintiff was riding in at the time of the accident. He took notes of the type, make and model of the vehicle, its registration number and the expiry dates of the registration and insurance from the Registration sticker. He also described the road condition and the steep climb on the road section where the vehicle was positioned after the accident.

The evidence of registration and insurance noted in the Police Road Accident Report is disputed by the Defendant as inconclusive for being sourced from hearsay. That contention is a clear misconception of the evidence because the Accident Report contained witness statements and also details of observations made by the policeman at the scene of the accident. In his evidence, Senior Constable Naikabam said he wrote down the registration and insurance details of the vehicle at the scene and transferred those details from his notebook to the Accident Report. That is not hearsay evidence in the strict sense. The information was available to the public and it was extracted from the vehicle by a policeman at the scene of the accident. On the other hand, the Defendant having had notice of the claim did virtually nothing to refute the claim. I accept the evidence of the policeman as the best evidence available and because it has not been disproved, I conclude on the balance of probability that the vehicle was registered and insured at the time of the accident.

The plaintiff had in the pleadings, alleged against the driver of the vehicle, four possible ranges of negligence as I have set out earlier. The evidence in my view tends to support only two and they are, a failure to engage the appropriate gear or maintain sufficient engine revolutions for driving uphill, and a failure to drive q1azwith due care and attention.

There is no direct evidence on those allegations of negligence but I find the evidence of Christopher Anders of some assistance. Mr Anders is attached to PNG Motors in Goroka and is a qualified A Grade Motor Mechanic by profession, working mainly with light weight vehicles. Toyota Hilux vehicles fall into his category of specialisation. He did not examine the vehicle in question to assess the possible cause of the accident but gave opinion evidence on the probable cause of the vehicle engine cutting out or stalling on a step-climb and possible explanations for the cause of the vehicle reversing downhill instead of stopping.

In essence, his evidence is that a vehicle engine may cut off for several reasons including; travelling uphill on high gear; fuel or petrol engine blockage resulting in loss of power and engine cut; petrol engine misfiring causing the vehicle to slow down and possible resultant engine cut. If a vehicle is on high gear travelling uphill, a shift to lower gear may prevent engine cut. A sufficiently experience driver should be expected to handle the vehicle in that manner but in most cases, most drivers would not know what to do in such difficult situations. When a driver experiences engine cut on a hill, he said a well maintained braking system should stop the vehicle though some downhill sliding may be experienced. Mr Anders also stated from his experiences with light vehicle in Goroka that most village based vehicles he had serviced do not have well maintained braking systems and needed a lot work on them.

It is true, as the defence argued Mr Anders’ evidence is at best, assumptions on possible causes of the engine stalling but could not point to which possible scenario caused the mishap as he did not engine the motor vehicle. However, in my view, the evidence offered the best explanation as to the causes of motor vehicle engine ceasing on a steep climb and possible corrective measures that should be taken to minimise damage. He also offered possible cause for rolling downhill when the brakes are applied. I accept Mr Anders’ evidence to that extent. On its own, any of those scenarios does not prove anything, but when the overall evidence is assessed, one or a number of those possibilities Mr. Anders spoke might be supported on the evidence.

The evidence of the Plaintiff is that the vehicle was speeding before it started climbing the hill and was speeding as it drove up the incline. The road was unsealed and possibly wet. The evidence of speeding suggested the vehicle was travelling on high or top gear up a steep climb. Mr Anders said the engine could cut off if the vehicle was pushed to a slow speed up the incline without engaging the low gear. Further, it would seem to me that if the road surface was wet as suggested by Senior Constable Naikabam, that would possibly add weight and drag to the wheels resulting in immediate slowing of the vehicle and consequential engine cut for a vehicle travelling on high gear. That, to me is common sense for experienced drivers while an inexperienced drive may not capably handle the vehicle in those situations.

There is no evidence on the driving experience of the driver in this case but the evidence point to the possibility of inexperience in managing the vehicle on a steep climb. There is no evidence of apparent fault on the driver of the vehicle in this case. But it must be reasonably assumed that when a driver finds himself in a situation where his vehicle engine stops or stalls on a steep climb, it must because he underrated the degree of difficulty in driving the vehicle on the road. A discreet and proficient driver would have been able to assess the capability of the vehicle and driven it competently. In this case, it is open to inference that the driver failed to properly assess a situation and lost control of the vehicle as a result. See, Kaumb Joseph v MVIT [1990] PNGLR 456.

The evidence of the vehicle reversing after the engine stalled also suggested faulty brakes. I accepted the evidence of Mr Anders that an effective braking system should stop the vehicle from rolling down hill even with the possible load it had that time. In addition to possible faulty brakes, the combined weight of the vehicle and its passengers on a steep climb is a clear recipe for disaster. The evidence shows there were some 12 passengers in the vehicle and experience shows that a utility of the type in question will usually find climbing steep inclines harder.

Given those facts and possibilities, negligence is not only established by incompetent driving of the driver and faulty brakes which no doubt would have been well known to the driver, but generally relying also on the maxim res ipsa loquitur, negligence is assumed against the Defendant.

The defence argues in the alternative that the plaintiff, a passenger, who consented to being driven in an overladen open back tray vehicle not designated for carriage of passengers, was also negligent by contribution. In response, the plaintiff relied on the evidence of Mr Anders to argue that the vehicle was hardly over-loaded with 12 passengers with an approximate total weight of just under the one tone prescribed weight cartage limit of a Toyota Hilux single cab vehicle. In his evidence, the plaintiff also stated there was still some room to spare despite there being some 12 people in the vehicle.

The evidence did not say whether the 12 passengers on the vehicle were all adults or whether some of them are children. The plaintiff and his fellow passengers had purposely set out in the vehicle to visit a relative who was living in a village in South Fore. He was married there and was having some kind problems, thus the purpose of their intended visit. It can be reasonably assumed therefore that the passengers were all adults.

But I do think there were only 12 adults on the vehicle. The plaintiff himself did not sound confident on that number of passengers. There was a very good reason for the vehicle to be carrying more than 12 passengers. The purpose of the vehicle use was to visit a relative in trouble in another part of Okapa District. It is a notorious fact that such situation will usually involve a lot of relatives converging as are necessary to assist or support each other in case of need or danger. The passengers, the vehicle, the driver and the trip originated from the same village and that was also an opportune time to see a place which would take up to 8 hours or so walking. That was a trip to some distant place. It is not unreasonable to expect free loading of vehicles in such a situation in rural areas with due regard to the road safety rules or road conditions.

Under Regulations 145 and 145A of the Motor Traffic Regulations Ch. 243, the maximum requirement for a private motor vehicle is 8 passengers unless otherwise authorised by law. The vehicle in question is not designated for carrying passengers and there is no evidence that it is authorised to carry more than 8. Hence it was unlawful for the driver to carry in excess of 8 passengers on that occasion. That would also make the utility vehicle in question over-loaded or slightly over-load.

The driver, the Plaintiff and his fellow passengers know each other well. So they would have easily colluded to load the vehicle which in my view was a contributing factor to the engine stalling and the vehicle rolling back downhill and over turning. I conclude that the loading of the vehicle beyond the 8 passenger limit and in all probability beyond 12 by the plaintiff and his relatives was in collusion with the driver.

From my own experience of having driven a second hand Toyota single cab utility, 12 passengers is an overload in terms of space and weight and even if that was only marginally over-loading the vehicle, its handling and performance is affected particularly on unsealed and uneven road surfaces. Where the road is mountainous like we find in the highlands, the driver is presented with greater responsibility to exercise care in the management of the vehicle was overloaded with at least 12 passengers.

At the same time, lessons must be learnt and responsibilities accepted for unlawfully riding on an overladen open back motor vehicle authorised to carry only 8 passengers. As Woods, J stated in Maria Sam v MVIT (unreported National Court Judgement) No. 1022:

"People must be expected to know the law and safe driving habits and if they do not follow the law and safe driving habits they could be found to be responsible for their acts and behaviour".

In the circumstances of this case, a private vehicle was used in a group activity and the Plaintiff was an enterprising young man in his early 20s. He frequently travelled by road to Goroka from Okapa as a coffee seller and no doubt was well versed with road traffic rules and a good sense of road use. I find that he must be held partly responsible for his injury for travelling in an over-laden vehicle which in my view was a contributing factor that affected the driver’s inability to control the vehicle while driving on a steep incline of a public road.

I do not however consider the fact of riding in the back of a vehicle not designated to carry passengers of itself, amounted to contributory negligence. See, MVIT v Tabanto [1995] PNGLR 214.

I assess contributing negligence at 20%.

Damages
The Plaintiff is entitled to damages for his injury. In his pleadings, he specified his claim as being for Damages, Costs and Interests. He also pleaded generally, his pre-accident income from his subsistent gardening and coffee. In his testimony, he gave evidence of post accident loss of earnings due to his disability. Hence, he claim falls into the category of General Damages, Future Economic Loss, Interest and Costs.

In the accident, the Plaintiff was thrown off the vehicle onto the road and rendered unconscious for a few moments. He regained consciousness and experienced pains in his right hand and felt his right hand ‘dislocated’. He was given ‘first aid’ treatment on the spot by his fellow passengers using ropes and feet to pull his shoulder back into place. He was than taken to Ivingoi Health Centre and from there to Goroka General Hospital.

In his oral evidence, the Plaintiff described his ‘treatment’ at the scene, before attending at Ivingoi Health Centre and Goroka General Hospital. However, there is no medical report of diagnosis, treatment and prognosis following his early admissions to the Health Centre and General Hospital. The only evidence on his medical prognosis is from Dr Inoni Betuela, a Specialist Physician of the IMA Medical and Consultancy Services in Goroka who reviewed the Plaintiff on 27 October, 2003. Again, it is not known if that review was a follow-up on some earlier consultations.

Hence, it cannot really be ascertained as to the exact nature and extent of the injury sustained, the treatment given and the possible effect of early treatment in the long term. There is also the possibility that the assistant given to the plaintiff at the scene by his fellow passengers may have exacerbated the injury and at worst, the dislocation may have been a result of the forceful pulling of his arm as he demonstrated in Court.

Bearing those factors in mind, I will proceed to consider the Plaintiff’s current disability as being connected with the accident on 21 February 1998. His current prognosis and disability is noted by Dr Betuela as: effective use of right hand - 80% loss; use of right shoulder joint - 60% loss and quantity of life through pain, suffering and psychological trauma from financial loss and disability - 60% loss. Overall, Dr Betuela averaged the loss of efficient of the right arm and shoulder at 70%. He concluded that the prognosis can be improved by a surgical operation but the plaintiff’s ability to regain his confidence and full use of the right hand may not be restored as some structural changes will remain permanent. This diagnosis is made four years after the accident.

It remains likely that early surgical intervention and or therapy could lead to complete or partially recovery beyond the percentage losses that Dr Betuela has approximated. The evidence of there being no orthopaedic surgeon in Goroka does no detract from the fact that, there is no medical evidence of the initial assessment of the injury to confirm the plaintiff’s mere assertions of what he had been told by a doctor and there is no evidence of what steps he took to seek general or specialist treatment to correct his disability. I do not consider it sufficient that a person who claims to have been injured in motor vehicle accident would merely assert his injury without producing expert evidence to verify his claims.

He must show early evidence of his injury, the treatment and his attempts to seek specialist treatment to mitigate the consequences of his disability which, without treatment may worsen with passage of time. It is understandable that access to good health sources in most areas of the country including the highlands areas is difficult, but in this case, the plaintiff had access to a public General Hospital and if I accept his evidence of earnings from coffee and garden crop sales, it shows he was a man of some means, hence he would have the ability to seek medical consultation or treatment from elsewhere in the country if it is not available in Goroka.

Against the background of his medical history, I accept that the disability in his shoulder has now restricted him to light duties in gardening and tending his coffee gardens. I accept that in the pre-accident period, he could do a whole range of heavy manual work and had possessed 5 gardens each of food crops and coffee. I accept and award the overall assessment of loss by Dr Betuela at 70%.

In respect of a claim for economic loss, it is submitted by the plaintiff that, by reason of his disability, he could no longer do heavy manual tasks to sustain his coffee and food crop gardens and grow as much produce to sell at the coffee factories and the market as previously. He is also unable to build fences, houses and provide generally for his family welfare and protection. His wife also spoke of the stigma of shame that now attaches to the family because of the inability of her husband to meaningfully contribute to cultural activities due to his disability. She spoke too of their coffee gardens being reduced to one and their crop gardens to two.

I find the evidence on the number of gardens and the income earnings therefrom somewhat exaggerated. At the time of his marriage in 1995, the plaintiff had two coffee gardens. The other three may have been planted thereafter at different times so that their full production may have not been known at the time of the accident. Conversely, I cannot imagine one family dividing their working times into maintaining 5 gardens of food crop and 5 gardens of coffee all at the same time in one year. I do however bear in mind that garden produce and coffee harvests are seasonal and that at any one time the plaintiff was earning some income.

There is variance between the evidence of the plaintiff and his wife on their subsistence income. The plaintiff stated they earned between K1,000.00 – K1,200.00 on coffee sales and K1,400.0 – K1,500.00 from potatoes sale. From other vegetable gardens, they earned between K200.00 – K300.00 a year. His wife stated they would make K1,300.00 a year on coffee and K600.00 – K700.00 on potatoes. She also mentioned making K30.00 –K40.00 a week from sale of other food garden produce.

Those assertions of earnings were not backed by any document as for instance, coffee sales receipts or price indexes for coffee and market produce in 1998. Nor is there any evidence of regular income. The income from garden produce may vary according to which market the produce was sold. There is no evidence of the market the plaintiff and his wife selling their produce and such evidence is essential because of the difference expected in sales income between smaller rural markets and bigger town markets where the demand is greater. The question of transportation costs and related are also relevant if the produce are sold in town markets.

It is submitted by the Plaintiff using two alternatives that he lost K25.00 or K35.00 a week from his coffee and food crop sales. Because of the uncertainty of the income in the evidence, I will allow K20.00 weekly loss for 32 years. The Plaintiff was at the time of accident aged about 23 years. Using the 3% discount tables, the amount yielded from that calculation is K21,600.00. I discount that figure by 15% for failure to mitigate his disability immediately following the accident as I have discussed and award K19,710.00 for future economic loss.

For general damages, there is seems only a few reported cases on shoulder injury alone but there is a number of cases on shoulder injuries coupled with other principle injuries. It is also relevant to consider awards within the ambit of arm injuries because the consequential effect on loss of use of the arm is similar, if not the same. I have not been assisted by either counsel on the current possible range of awards on this type of disability. It is however, helpful to consider some of the previous awards from the 80s and the 90s as submitted by the plaintiff.

In Nali Matabe v The State & MVIT [1988] PNGLR 309, the plaintiff suffered fracture of the left clavicle which healed with malunion and required surgical treatment to remove a bony spur. The plaintiff was left with a 15% permanent loss of the efficient use of his left arm above the elbow which seriously restricted his occupation as a subsistence and market gardener. He was awarded K10,000 general damages. The case of Davi Goiye v The State, (1987) N642 involved an accident where the plaintiff was thrown out of the vehicle onto the roadway and suffered damage to the facial nerve at 45% and the disability in the shoulder at 20%. She was awarded K20,000.00 in general damages. In Cecilia Dir v MVIT (1991) N984, the plaintiff suffered substantial incapacity including leg and shoulder injuries laceration of her left forehead, fracture and dislocation of her left shoulder, laceration to the posterior of her left ankle and communicated displaced fracture of her distal tibia and fibula. General damages was assess at K35,000.00. At the lower end where the shoulder injury is not as serious and percentage loss of efficient use of the shoulder is given at 15%, the court has ordered K8,000.00 in settling the claim for general damages. See, Nomane v MVIT (22/11/91) N1019.

In Pep v Bakri Yamba and The State [1987] PNGLR 485 a 24 year old villager who worked as a shopkeeper, sustained principal injuries in severe fractures of his left arm bones following a road accident. His residual disabilities included a deformed arm with about 50 per cent reduction in usefulness. He was awarded K15,000.00 for general damages I have also considered the award in Kaka Kopu v. The State [1980] PNGLR 557 K18,000.00 was awarded to the plaintiff, who suffered fractures of the left forearm and wrist from a fall whilst a detainee in a corrective institution. The injuries resulted in permanent deformity because of misalignment in union. Loss of efficient use of his forearm was assessed at 40-50%. The plaintiff in that case also had a pre-existing disability in his right hand. In Kokoknas Kandapak v. The State [1980] PNGLR 573 an award of K10,000.00 in general damages was made where the plaintiff suffered a compound fracture of the right humerus with damages to the ulna nerve causing claw hand deformity. The initial non union of the fracture was corrected by treatment with bone plating and bone grafting. His loss of the effective use of his right hand was estimated at a 50%. The case of Kuriti v The State [1988-89] PNGLR 633 involved a 27 year old male who was injured as result of being savaged by a police dog on the left arm. He suffered 30% loss of efficient use of the forearm and also left with minor disfiguring and scarring. General damages was assessed at K9,000.

These cases represent a fairly wide range of awards for shoulder and arm injuries in the past. I have been unable to find any recent case publication of awards on shoulder injury in my brief research, nor have either referred any for the period 1990 – 2004. But doing the best I can in relying on those precedent awards I have referred, I bear in mind what has been said about increases in awards due to inflation and the need to make awards consistently with the current economic situation of our country as averted to by Salika J in Shelley Kupo v. MVIT (2002) N2282 where he stated:

"I am of the view that the injuries by the plaintiff are similar to Ron Tinpul. In that regard taking into account the current economic situation in the country and the value of the currency now and the inflation level I am prepared to go toward an amount double that awarded to Ron Tinpul. In the circumstances I award K80,000.00 for general damages."

And in Bea Maxie v The State (Unpublished National Court Judgment WS 028 of 1998) Kirriwom J made the following observation:

"...any award of damages today based on past precedents and comparable tables or figures without taking into account inflation would be grossly meaningless with the current inflation rate that has gone up almost at 90 degrees thus escalating prices of items well beyond the reach of income earners at all levels."

The devaluation of the kina no doubt has had a transcend effect on the economy of the country and the standard of living. The CPI tendered by the plaintiff does indeed point to escalating prices goods and services in 2002 and even in 2004. Any award made now should sufficiently reflect that fact but it ought not be the sole deciding factor. Each case must be decided on its facts and guided by current range of awards. These are and others considerations must be taken into account by the court in arriving at what might be considered a fair and just monetary award.

I accept K15,000.00 as a reasonable amount that would have been awarded in 1987 as in Pep v Bakri Yamba and The State. I also think the awards in Kaka Kopu v. The State and Cecilia Dir v MVIT are good guides though the facts and injuries were much more serious in those cases. The greater percentage loss in this case calls for an award in the top end of the possible range in the cases referred. I would assess K18,000.00 and allowing for inflation the final figure will more than double that amount. I would assess and award K40,000.00 for general damages. However, allowing for 20% contributory negligence, the amount is reduced to K32,000.00. I allow 8% interest on that amount from the date of the writ to the date of judgement. That comes to K11,923.30.

The award in summary is as follows:

General Damages - K32,000.00

Future Economic Loss - 19,710.00

8% Interest - 11,923.30

K69,123.70

There will be judgement for the plaintiff in the sum of K63,633.30 plus costs to be agreed upon or failing agreement, to be taxed.
____________________________________________________________

Lawyer for the Plaintiffs : Pryke & Bray Lawyers
Lawyer for the Defendants : Mirupasi Lawyers