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Dinogo v Motor Vehicles Insurance Ltd [2005] PGNC 117; N2839 (7 March 2005)

N2839

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 432 of 1998

Between:

JACK DINOGO
-Plaintiff-

And:

MOTOR VEHICLE INSURANCE LIMITED
-Defendant-

Waigani : Injia, DCJ
2005 : February 8th, March 7th

CIVIL – Assessment of Damages – Personal injury – 50 year old man – Fractured spinal process - Injury to back and iliac joint – Permanent disability assessed at 30% efficient use of lower limb – Awarded K25,000 for general damages.

Cases cited in the Judgment:
Are v MVIT [1991] PNGLR 456;
Glenys Yarnold v State [1987] PNGLR 474;
Kewe v Kundjip [1986] PNGLR 279;
Kuntu v MVIT [1991] PNGLR 440;
Pakanu v MVIT [1993] PNGLR 73;
Petrus Kumbo v MVIT N1717;
Pupti v Kunjip [1986] PNGLR 283;
Stephens v MVIT [1994] PNGLR 481;
Walpe v MVIT [1993] PNGLR 434.

Counsel:
R Uware for the Plaintiff
C Jaminan & N Eliakim for the Defendants

7th March 2005

INJIA, DCJ: The Plaintiff’s action is for damages against the Defendant pursuant to S.54 of the Motor Vehicles (Third Party Insurance) Act (Ch. No. 295). Both issues of liability and damages are contested.

The evidence for the parties consists of the following:

LIABILITY

The Plaintiff’s action is based on the negligent driving of a motor vehicle, a Nissan Ute, Reg. No. CIB 191 (Nissan Ute), driven by one Peter Uri, on the night of 19 October 1993 along the Hiritano Highway, next to Tabari Place. The vehicle was heading towards Five Mile when it collided into a taxi, a Mazda Double-Cab Ute Reg. No. T1637 (taxi), driven in the opposite direction by one Bokoso Ruki. The Plaintiff was a passenger in he Taxi and he was seated in the middle of the back seat with two (2) other passengers. The accident occurred at the junction of Hiritano Highway and Turumu Street, just under the overhead bridge. The Plaintiff claims the driver of the Nissan Ute, without giving signal, turned right, driving into Turumu Street, and crashed into the Taxi. The Plaintiff sustained injuries to various parts of his body.

The only evidence called on the issue of liability was from the Plaintiff. Oral evidence was given by the Plaintiff and fellow passenger in the taxi Mr Terry Maima. Oral and documentary evidence was given by Constable Mondo. The evidence clearly identified the place and time of the accident, the vehicles involved, the passengers in the Taxi which included the Plaintiff and the manner of driving of the drivers of the two vehicles. They attributed the sole cause of the accident to the negligent driving of the driver of the Nissan Ute. They gave evidence of the fact that the Plaintiff was injured on impact. The Police Accident Report compiled by Constable Mondo, who visited the scene some minutes of the accident, is in evidence. The Police Accident Report states what each driver told Constable Mondo:

"Driver 1 (Mazda Taxi) said: I was about to pass Turumu Street. Vehicle two just turned fast giving me short time to avoid it.

"Driver 2 (Nissan Ute) said: I turned into Turumu Street and tried to make a U-turn onto the Highway when vehicle 1 hit me."

Clearly, on the above statements, the driver of the Nissan Ute was solely negligent for causing the accident. This is supported by the evidence of the Plaintiff and Mr Maima.

Ms Eliakim has referred me to a number of unsatisfactory aspects of the evidence and/or inconsistencies in the evidence. She enumerated them in para. 1.2 – 1.6.4 of her written submissions. She submitted these inconsistencies render the evidence of the Plaintiff unreliable and lacking in weight. She submitted I should reject their evidence in total and find for the Defendant on the issue. Mr Uware’s submitted that they are insignificant and do not cast any real doubt on the material evidence.

I find the Plaintiff’s evidence virtually unchallenged by any evidence from the defendant. The evidence is overwhelming. For these reasons, I find all material facts to be established by the evidence. I agree with Mr. Uware that the inconsistencies in the evidence are minor and insignificant. They do not detract from the material facts. I find for the Plaintiff on the question of liability.

I also find the Plaintiff sustained injuries to various parts of his body as a result of the impact of the accident. The nature and extent of the injuries and resulting disability, if any, permanent or otherwise, is in issue. One important issue is whether the Plaintiff sustained injuries to his neck, spine and iliac joints. I deal with these issues below.
DAMAGES

The accident occurred on 19 October, 1993. Dr. Pip’s medical reports gives a clear picture of the Plaintiff’s injuries in its early stages and up to 1996. On the evening of the accident, he was received and treated at the Accidents and Emergency Section of the Port Moresby General Hospital. He was noted to have three types of injuries: (1) Abrasions on the scalp which were not bleeding. (2) Painful neck (3) Bruised lower lip with three frontal lower teeth mobile at their roots. He was treated and discharged. On 26 October 1993, he was again seen complaining of pain in the left buttock and iliac area. He was admitted to the hospital and treated and discharged the next day. He was noted to have no neuro-logical deficit. On 7 October 1996, three (3) years later, he was seen at the hospital, walking with the support of walking stick and complaining of lower back pain on the right side. An X-ray was done which did not show any bone lesions. On 11 November 1996, he was seen at the hospital, complaining of pain going down both legs and unable to walk around. He was noted to have no neuro-logical deficits and required no surgery.

On 28 July 1997, Dr. Mesol attended to the Plaintiff at the same hospital. He was complaining of severe back pain. An X-ray revealed "severe osteoarthritis of the sacro-iliac joints, more marked on the left side. He noted the symptoms "will only get worse with aging."

On 19 December 1997, the Plaintiff’s condition was reviewed by Dr Kevau. Dr. Kevau’s findings are:

"On clinical examination he has a very unstable gait and cannot even stand on both feet for long without a stick. His flexions are limited and rotation are restricted. Examination of the hip joint is quite normal.

"Straight leg raising is restricted due to intense pain over (L) sacroiliac joint and not due to sciatic nerve stretching or irritation. There is no sciatic or gross neurological impairment or gross vascular compromise.

"Recent X-ray shows sclerotic changes at the (L) sacroiliac joint which is consistent with Post traumatic Arthritis. This can be attributed to the accident that he had in September 1993. He has no chance of improving symptomatically and surgery has no place to improve his symptoms.

"He has twenty percent (20%) disability from his back injury, five percent (5%) disability from scalp scars or keloids."

Since Dr. Kevau’s review, his condition has been reviewed by several other doctors. Dr Haina reviewed him on 6 April 2001, Dr. Inaho on 8 September 2003, Dr. Gilezie on 24 April 2004 and D.r Haina on 7 July 2004. Dr. Gilezie saw the Plaintiff upon the Defendant’s request. Dr. Haina saw the Plaintiff after Dr. Gelize’s review. The assessment of permanent disability by Dr. Haina and Dr. Gilezie differ significantly. Both doctors were called by the respective parties and they were cross-examined on their medical reports.

Dr Gilezie in his report states:

"Currently, Mr Dinogo’s main symptoms are lower backache with weakness of the lower limbs, causing unsteadiness on standing and walking. He depends heavily on walking aid and mobilizes awkwardly. His activities are limited and he cannot squat.

"Examinations of the vital signs were normal. His lower limbs showed an unsteady gait. Hip flexion is RESTRICTED to 700 on the left and 800 on the right lower limb. Straight leg raising is severely RESTRICTED. He could raise his left leg to 500 and the right leg to 800. There was intense pain over the left sacroiliac joint but was not due to stretching of the sciatic nerve. There is no loss of neurologic functions of the lower limbs or any muscle atrophy.

"Examination of the neck suggests there was a whip lash injury. Neck flexion is good. There is severe restriction on extension, right and left neck rotation. X-ray of the neck shows an old fracture on the tip of the spinous process of C6 vertebra. The other vertebral bodies and disc spaces are normal.

"Examination of the mouth showed loosening of the lower incisor. It needs to be replaced in the future.

"Mr Dinogo may have suffered from concussion during the impact, however, he does not show any evidence of that impact in his daily living. His memory is sound in either recent or long term, and he is orientated to time, place and person.

"Quantitatively, a Diagnosis – Related Estimate (DRE) Cervicothoracic classes Mr Dinogo into category II suggesting Minor Impairment with a 5% impairment of the whole-person.

"A further 5% DRE of the lumbo-sacral spine impairment of the whole person

In total, 10% impairment of the whole person as per combined value chart."

Dr. Haina‘s assessment of disabilities is based on the American Medical Assessment Guides. Dr. Gilezie in his report states:

"A. DIAGNOSTIC

1. Post Traumatic Arthritis of (Ilio-Sacral)

Joint – Unstable Joint Dysfunction with 75% compression (Neuroparasis) of lower limb(s) involving more than 2 levels (L3-S4 5,-2)

Awards 40% loss

2. Post Traumatic Concussional Syndrome

Awards 10%

3. Whip Lash Injury to Neck Awards 10%

4. Loss of lower incisor tooth Awards 5% loss

5. Additional loss due to neurological deficit involving back injuries.

Awards 10% loss

It appears from the evidence that the disability in the iliac joints and possible spinal injury forms a substantial part of the total permanent disability allocated by the two Doctors. The question is whether the spinal injury or the injury to the iliac joint area arose as a direct result of the accident.

I note that the medical reports made between the time of the accident up to 2003 to not clearly show any injury to the Plaintiff’s back, spine or iliac joints. Dr Kevau’s opinion that sclerotic changes at the left sacroiliac joint "is attributed to the accident that he had in September 1993" is not supported by the earlier medical reports. Dr. Gilezie however states the X-ray of the neck showed "an old fracture on the tip of the spinous process of C6 berte", which is some 11 years after the accident. Also there is lack of neurological deficiency noted by the various doctors which suggest the Plaintiff may not have sustained any serious back or spinal injury. There is no clear connection between the accident and the spinal or iliac joint injury. In circumstances, it is difficult for me to assess what the real back or iliac joint injury was.

In my view, however, the fracture on the tip of the spinous process of the C6 vertebra in the neck area, is an internal injury, the impact of which may not have been felt immediately by the Plaintiff and which could not be easily identified on clinical examination at the time of the accident. I cannot ignore the fact that Dr. Gilezie’s close examination of the Plaintiff’s neck area did reveal an old fracture of the C6 vertebra. This injury is consistent with his complaint of "painful neck" when he was first seen at the hospital on the night of the accident. There is no other hypothesis on what caused the fracture, other than the injuries to his neck sustained in the accident in 2003. On the balance of probabilities, I find that the Plaintiff sustained a fracture on the tip of the spinal process of the C6 vertebra, from the accident. I also accept Dr. Kevau’s opinion linking the post traumatic arthritis on the sacro-iliac joints to the back injuries sustained in the accident.

The assessment by Dr. Kelezie and Dr. Haina gives some guidance. Dr. Haina’s assessment presents the extreme version and Dr. Kelezie the lowest version. I also observe the Plaintiff to be of advanced age, most probably over 50 years old. I find that part of physical disability of the lower limb may be attributed to this injury. Much of the disability may also be due to aging and his physical disability, no doubt may have been aggravated by aging as noted by Dr. Mesol in 1997. I accept Dr. Kevau’s assessment to be more realistic. In all the circumstances, I consider total disability of the lower limb to be 25% plus 5% for other dysfunctional disability generally such as loss of lower teeth, injury to lips, etc. the total disability of 30% is directly attributed to the spinal and other injuries he sustained from the injury.

The Plaintiff is a 50 year old unemployed urban settler. Some of the previous awards referred to me by Mr Uware are back-injury cases of plaintiffs from a rural setting. The assessment of disability range between 20% to 60%. The awards range from K10,000 – K20,000: see Glenys Yarnold v State [1987] PNGLR 474; Pupti v Kunjip 1986] PNGLR 283; Kewe v Kundjip [1986] PNGLR 279; Kuntu v MVIT [1991] PNGLR 440; Walpe v MVIT [1993] PNGLR 434; Pakanu v MVIT [1993] PNGLR 73 and Stephens v MVIT [1994] PNGLR 481.

Mr Uware submits that a reasonable assessment of total permanent disability of the efficient use of the body including the lower limb is in the vicinity of 30 – 40%. Ms Eliakim submits 10% permanent disability, mainly based on Dr Gilezie’s assessment.

Mr Uware seeks general damages of K50,000 or more, to take into account possibility of future complications and adjustments done to inflation.

Ms Eliakim referred me to Petrus Kumbo v MVIT N1717 and Are v MVIT [1991] PNGLR 456, and submitted a reasonable award for 10% disability would not exceed K10,000.

My own assessment is one of K25,000.00. I consider this to be fair and reasonable compensation for the Plaintiff’s initial injury and the resulting physical disabilities.

I make no award for economic loss as it is not pursued by the Plaintiff in the trial.

In relation to contributory negligence, the Plaintiff did not wear any seat belt because there was no seat belt fitted onto the back seat. Contributory negligence on that basis is not in issue. The question is the percentage apportionment for contributing negligence. The Plaintiff says 10% is reasonable. The Defendant says 50% is reasonable.

I accept the Plaintiff’s evidence that his inability to wear seat belt was due to there being no seat belt fitted on the car for the person seated in the middle. But then, there might be space for only two (2) passengers on the back seat and this might be the explanation for it. The Plaintiff was negligent in that sense in over-loading himself in the back seat. I consider 15% to be reasonable.

I apportion contributory negligence at 15%, which is equivalent to K3,750. I reduce damages by K3,750. The total damages therefore is K21,250.00. I apportion past general damages at K12,000. 00. I award interest on past damages at 4% per annum, computed from date of commencement of proceedings to judgment, (1998 – 2004 - 7 years), at K3,360. I award total damages in the sum of K24,610.00 inclusive of interest, plus costs.

__________________________________________________________
Lawyer for the Plaintiff : Public Solicitor
Lawyer for the Defendant : Young & Williams