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Dei v State [2009] PGNC 157; N3767 (23 October 2009)

N3767

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. 702 OF 1995

KURAPEI DEI
Plaintiff

V

THE STATE
Defendant

Lae: Manuhu J
2008: 8, 22 September
2009: 23 October

PERSONAL INJURY CLAIM – Liability – Vicarious liability – Acting in course of employment – Not pleaded in statement of claim – Not pleaded in statement of defence – Agent a motor mechanic in government department – Offending vehicle owned by the department – State vicariously liable.

DAMAGES — Personal injuries — Particular awards of general damages — lacerations to nose and mouth, dislocation of left hip, and fracture of the clavicle - 22 per cent impairment of the lower extremity which translates into 9 per cent of the whole person - Plaintiff 28 years old - married with three children – illiterate - subsistence gardener, raises pigs - has a coffee garden — Award of K19,000 for economic loss &K65,000 for general damages.

Cases cited in the judgment:

Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557,
Kokonas Kandapas v The Independent State of Papua New Guinea [1980] PNGLR 573,
John Etape v The Motor Vehicles Insurance (PNG) Limited [1992] PNGLR 191,
Pangis Toea v The Motor Vehicles Insurance (PNG) Limited & The Independent State of Papua New Guinea [1986] PNGLR 296,
Kunjil On v The Independent State of Papua New Guinea [1986] PNGLR 286,
Costello v Talair Pty Limited [1985] PNGLR 61,
Nali Matabe v The Independent State of Papua New Guinea & The Motor Vehicles Insurance (PNG) Limited [1988] PNGLR 309.

Counsel:

S. Tedor, for the Plaintiff
Odu, for the Defendant

23 October, 2009

1. MANUHU J. This is a personal injury claim for damages arising out of physical and emotional injuries arising out of a motor vehicle accident on 26th January 1990 along the Wabag/Wapenamanda Road in Enga Province.

2. The Defendant did not adduce evidence so the Plaintiffs evidence, remains unchallenged. On the said day, the Plaintiff, who was 28 years old then, was a passenger in a privately owned motor vehicle, a Toyota Hiace bus, reg. no. ADU 685. The bus crossed the single lane Pompopos Creek Bridge and as it reached the end, it collided with the other vehicle coming from the opposite direction.

3. The offending vehicle was a Toyota Land Cruiser, Utility, reg. no. ZGA 766, owned by Department of Works & Supply. It was driven by Alphonse Apa, a motor mechanic with the department.

4. The Plaintiff suffered severe injuries and is now left with permanent disabilities. According to the Road Accident Report, the bus stopped at the end of the bridge to give way to the government vehicle. As the government vehicle traveled down the slope onto the bridge, its right front side hit the right front side of the bus causing extensive damage. The government vehicle caused the accident.

5. It is clear that the mechanic driver was careless in failing to slow down and avoid the accident. It appears he simply lost control of his vehicle and ran into the stationery bus. The only issue, if at all, is whether the State is vicariously liable for the negligent driving of the mechanic driver.

6. I have to find in the positive. The offending vehicle was owned by the State. Alphonse Apa was employed by the Department of Works & Supply. The Statement of Claim does not allege that the mechanic driver was acting in the course of his employment but there is no denial in the statement of defence. The Defendant has adduced no evidence.

7. I am required to make a finding on the given facts. Government vehicles are not meant for use for private purposes. The mechanic driver could not be driving outside the scope of his employment. On the balance of probabilities, I find, on the facts, that the mechanic driver was acting within the scope of his employment when he got involved in the accident.

8. In the circumstances, I find the Defendant liable for the negligent driving of the mechanic driver. I must now assess damages.

9. In relation to economic loss, the Plaintiffs age is estimated at 28 years at the time of the accident. She is married with three children. She is illiterate. She supports her family through subsistence gardening and raising of pigs. She has a coffee garden from which she harvest and derives income from.

10. She is still experiencing the effects of the accident and gets her relatives to help out. She experiences blackouts and severe pains when she works. Sitting down for long period causes discomfort. So is walking up or down a hill. Generally, she continues to experience incapacities in her life.

11. Economic loss has been awarded to plaintiffs with similar disabilities. See the cases of Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557, Kokonas Kandapas v The Independent State of Papua New Guinea [1980] PNGLR 573. K22 per week was awarded in the latter.

12. In this case, I will award the Plaintiff K15 per week under economic loss. I do so knowing that Kokonas Kandapas was decided 19 years ago but the Plaintiff, to her credit, is content with K15 per week. The ceiling in relation to her working life is fixed at 65 years. I have verified and so I accept counsel’s computation of K18,118.47 as appropriate compensation for the remaining years since the accident. Accordingly, I award the Plaintiff a rounded off amount of K19,000 for economic loss.

13. In relation to general damages, there were two medical reports. They are seven years apart. It is appropriate to assess general damages on the basis of the most recent report. Dr. Daisy M. Sonza of Marian Clinic, Mount Hagen, in her report of 4th February 1997, states that the Plaintiff still suffers from pain in the upper lip and left hip, medium built ambulatory with a drag of left lower extremity, moderate pain in the left hip joint movement in all directions, osteoarthritic changes and post-traumatic residual changes in the left hip area which will be a source of pain with age setting in.

14. In simple English, the Plaintiff suffered lacerations to the nose and mouth, dislocation of the left hip, and fracture of the clavicle. These injuries are very serious, especially dislocation of the hip. The totality of the injuries could be very discomforting. It was concluded that the Plaintiff has a 22 per cent impairment of the lower extremity which translates into 9 per cent of the whole person.

15. In relation to hip injury, in the case of John Etape v The Motor Vehicles Insurance (PNG) Limited [1992] PNGLR 191, a severe hip dislocation after a motor vehicle accident resulting in 50 per cent loss of use of right leg returned an award of K27,000. In Pangis Toea v The Motor Vehicles Insurance (PNG) Limited & The Independent State of Papua New Guinea [1986] PNGLR 296, a similar injury returned an award of K35,000. In Kunjil On v The Independent State of Papua New Guinea [1986] PNGLR 286, a villager was awarded K18,000.

16. In relation to clavicle injury, K18,000 was awarded to a 57 year old expatriate who suffered shoulder injuries in the case of Costello v Talair Pty Limited [1985] PNGLR 61. In Nali Matabe v The Independent State of Papua New Guinea & The Motor Vehicles Insurance (PNG) Limited [1988] PNGLR 309, 50 per cent loss of use of arm as a result of clavicle injury resulted in an award of K10,000.

17. These awards were made more than 20 years ago. By judicial notice, a Kina then would buy one US Dollar. Currently, a Kina is less than 50 US cents. An award of K35,000 then would thus be around K90,000 in 2009. The Plaintiff is asking for K65,000 which, using the same formula in reverse, is about K25,000 20 years ago. In the circumstances, I will award K65,000 for general damages, pain and sufferings, past present and future.

18. The Plaintiff is ultimately awarded K19,000 for economic loss and K65,000 for general damages, pain and sufferings, past present and future. Interest of 8 per cent is also awarded commencing 17th August 1995 to the date of payment. Cost follows the event.

__________________________________

Sialis Tedor Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendant