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Kolao v Independent State of Papua New Guinea [2010] PGNC 55; N4050 (8 June 2010)

N4050

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 432 OF 1999 & WS NO 435 OF 1999

BETWEEN

LUSRAY KOLAO & OKARA NEGAN
Plaintiffs

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Mount Hagen: Makail, J
2010: 05th & 06th May & 08th June

TORT - Liability - Negligence - Motor vehicle accident - Passengers injured - Personal injury claims - State’s obligation to maintain bridge - Breach of - Effect of - Liability established.

DAMAGES - Assessment of - General damages - Fair and reasonable damages - Pain and suffering - Special damages - Proof of - Strict proof - Out of pocket expenses.

Cases cited:

Peter Nangain Kol -v- Shorncliffe (PNG) Limited (2001) N2121
Thomas Jinamy -v- The State (2008) N3481
Armiger -v- The Government of Papua New Guinea [1978] PNGLR 516
Mondo Pakau -v- Motor Vehicles Insurance (PNG) Trust Limited [1993] PNGLR 73
Andrew Moka -v- Motor Vehicles Insurance Limited (2004) SC729

Counsel:

Ms A Inia, for Plaintiffs
Mr W Mapiso, for Defendant

JUDGMENT

08th June, 2010

1. MAKAIL, J: In these two matters, the plaintiffs commenced proceedings against the defendant for alleged negligent actions when it failed to properly maintain a bridge near Paiakona in the Enga Province. As a result, on 28th June 1996 a motor vehicle Toyota Hilux bearing registration no HAA-414 in which the plaintiffs had travelled in from Wabag to Mt Hagen ran over loose or suspended and protruding decks on the floor of the bridge, causing the motor vehicle to hit them and ran off the bridge. The plaintiffs sustained bodily injuries and were taken to hospital for medical treatment. They sought damages against the defendant.

2. The defendant denied liability and claimed that it properly maintained the bridge. Trial was conducted on liability and assessment of damages. In relation to the issue of liability, the plaintiff Lusray Kolao relied upon the following affidavits:

1. His affidavit sworn on 21st July 2008 and filed on 24th July 2008 (Exhibit "P1");

2. Affidavit of Constable A Boniape sworn on 25th August 2000 and filed on 8th September 2000 (Exhibit "P2");

3. Affidavit of Dr Allan Kulunga sworn on 12th July 2000 and filed on 18th July 2000 (Exhibit "P3"); and

4. Affidavit of Okara Negan sworn and filed on 8th April 2010 (Exhibit "P4")

3. As for the plaintiff Okara Negan, she relied on the following affidavits:

1. Her affidavit sworn on 3rd December 2008 and filed on 22nd December 2008 (Exhibit "P1");

2. Affidavit of Constable A Boniape sworn on 25th August 2000 and filed on 8th September 2000 (Exhibit "P2"); and

3. Affidavit of Dr Allan Kulunga sworn on 12th July 2000 and filed on 18th July 2000 (Exhibit "P3").

4. The plaintiffs’ evidence is that, on 28th June 1996, they had been travelling in a motor vehicle Toyota Hilux bearing registration no HAA-414 and driven by one Connie Negan from Wabag to Mt Hagen. At Paiakona bridge, they ran over loose or suspended and protruding decks on the floor of the bridge, causing the motor vehicle to hit them. The impact jerked the motor vehicle upwards and it ran off the bridge and crashed. The plaintiffs sustained bodily injuries and were taken to hospital for medical treatment.

4. The defence counsel Mr Mapiso cross-examined the plaintiff Lusray Kolao in relation to the contents of this affidavit. He tried to discredit his evidence that the defendant failed to properly maintain the bridge by suggesting to him that the driver of the motor vehicle must have driven the motor vehicle at high speed when crossing the bridge and ran off the road. However, he maintained that the driver had driven the motor vehicle at a reasonable speed when crossing the bridge. Mr Mapsio also suggested to him that there had been no loose or suspended decks on the bridge floor to pose a threat to motor vehicles as the defendant had properly maintained the bridge but he maintained that there had been loose or suspended decks on the bridge floor which had protruded upwards and the motor vehicle ran over and hit them, causing the motor vehicle to run off the bridge and crash. He said after the crash, he and other passengers went to investigate the cause of the accident and saw loose or suspended decks protruding upwards on the bridge floor.

5. Mr Mapiso also objected to their evidence that the bridge was poorly maintained on the ground that they were not expert witnesses and in no position to give an opinion on the condition of the bridge but I overrule this objection because it fails to appreciate the fact that the plaintiffs were eye witnesses of the accident. In other words, they said they saw the loose or suspended decks protruded upwards on the bridge floor and the motor vehicle ran over and came into contact with them. They were the victims of the accident and had given direct evidence. Their evidence had been corroborated by Constable A Boniape who was the investigating officer of the alleged accident. He was, at that time attached to the Traffic section of Mt Hagen police station and sometimes after the accident had attended the scene to verify the cause of the accident. He said he saw loose or suspended decks on the bridge floor and in his opinion as a traffic officer, it could have caused a major motor vehicle accident. He believed that it had been the cause of the accident in this case. Mr Mapiso had chosen not to cross-examine him in relation to his evidence.

6. The defendant relied on the affidavit of Simon Kondop sworn on 22nd April 2010 and filed on 3rd May 2010. Simon Kondop was not cross examined in relation to the contents of his affidavit. He is a Staff and Industrial Officer of the Department of Works based in Mt Hagen. It is his evidence that the defendant had properly maintained the bridge because it was built by very experienced and qualified civil engineers. It had been serving the travelling public for many years and it is absurd to suggest that its decks were loose or suspended at the time of the accident. He said, if that had been the case, it was incredible and ironical that other motor vehicles including heavy duty ones used by the Porgera Gold Mines had not had any accident on the bridge. In weighing up the evidence of both sides, I prefer the evidence of the plaintiffs because their evidence is consistent and straight forward. They corroborated each other and the plaintiff Lusray Kolao had not wavered or shaken in cross-examination. From my observations his demeanour was good.

7. Together, their evidence in relation to the loose or suspended decks causing them to protrude upwards had also been verified by Constable A Boniape who had also attended the scene and independently verified them and I reject the suggestion by Mr Mapiso in his submission that Constable A Boniape’s evidence is hearsay. I accept his evidence based on his many years experience as a police traffic officer that the protruding decks on the bridge floor may have caused such an accident. I find them to be witnesses of truth and accept their evidence that the cause of the accident had been the loose or suspended and protruded decks on the floor of the bridge.

8. That means, I give no credence to the evidence of the defence witness Simon Kondop. His evidence is largely hearsay because he had not said that he went to the scene of the accident and if he had, at what date to investigate and verify that the bridge was properly maintained. Besides, he seemed to have given expert evidence on how the bridge was maintained. He had not stated in his affidavit if he is an expert in the field of civil engineering, more so building, construction and maintenance of bridges. So how can a Staff and Industrial Officer in the Department of Works claim to know how to built and maintain bridges? This is suspicious. In my view, his evidence is self serving. It also does not specifically address the issue of maintenance of the bridge which the plaintiffs claimed had not been properly maintained by the defendant because of the loose or suspended decks on the bridge floor.

9. In that regard, I make one general observation and that is, one cannot look far for evidence of the deteriorating state of the public road system in this country. If one drives up the Highlands highway from Mt Hagen to Wabag, one cannot miss a pot hole on the road or a loose or suspended deck on a bridge floor. I mean, it is common knowledge that our public road system is in a state of disrepair such that it poses a serious threat to lives and properties, which means that, there is an urgent need now than ever to quickly repair and maintain roads and bridges. Yet, Mr Kondop seemed convinced that the defendant is in complete control of the situation, more so in relation to the bridge in question. How pathetic is this? For these reasons, I find his evidence flawed, hearsay and unreliable. I reject it in its entirety.

10. And so accepting the evidence of the plaintiff, I find that the defendant has an obligation to maintain roads and bridges in this country and as the authority responsible for maintaining roads and bridges in the country, owed a duty of care to properly maintain the bridge in question. It breached that duty of care when it failed to properly maintain it, resulting in the loose or suspended decks protruding upwards on the bridge floor. These protruding decks posed a serious threat or danger to the travelling public and sure enough, the motor vehicle in which the plaintiffs were ran over and hit them. The impact jerked the motor vehicle upwards, causing it to run off the bridge and crashed, resulting in the plaintiffs sustaining bodily injuries. In my view, the facts of this case demonstrate a case of gross negligence by the State in properly maintaining the road system in the country. In the circumstances, I am satisfied on the balance of probabilities that the defendant had been negligent and hold it liable.

11. I turn to the issue of damages. What is a fair and reasonable amount of damages to award to the plaintiffs? The answer to this question is dependent on the proof of damages by the plaintiffs as the law places the onus of proof on the plaintiffs. The plaintiff Lusray Kolao said that he sustained facial and arm injuries. Dr Allan Kulunga examined and treated him. He also furnished a medical report on 08th October 1996 which reported that he suffered scalp lacerations and contusions to his lower back and left tibia. By the time he was examined by Dr Kulunga, his injuries had healed however, according to Dr Kulunga, he had some lumbar veterbra post traumatic arthritis which had restricted his movement of the spine. Dr Kulunga assessed 10% permanent disability in the effective use of the lumbar spine.

12. As for the plaintiff Okara Negan, she said she sustained facial and neck injuries. Dr Allan Kulunga also examined and treated her. He also furnished a medical report on 7th August 1997 which reported that she suffered dislocation of the neck bone causing pain and restriction in the movement of her neck, smashed nose bone resulting in breathing problem, and a dislocated right shoulder resulting in swollen and tender shoulder. By the time Dr Kulunga examined her, her injuries had healed however, according to Dr Kulunga, she had suffered pain, anxiety and psychological distress.

12. Again, Mr Mapsio had chosen not to cross-examine Dr Kulunga in relation to his reports on the condition of each plaintiff except to object to his evidence on the basis that it is hearsay. I overrule the objection because it is not hearsay. It is direct evidence of the condition of each plaintiff because he was the doctor who examined them following the accident. The defendant had also not called any evidence to refute his evidence. As Mr Mapsio had chosen not to cross-examine him, and called no evidence in rebuttal, his evidence remained uncontroverted. Further, there had been no other reasons put forward by Mr Mapsio in his submission to persuade me to reject Dr Kulunga’s evidence in relation to the plaintiffs’ injuries. Therefore, I accept Dr Kulunga’s evidence and find that the plaintiffs sustained those injuries set out above.

13. In their respective statement of claims, the plaintiffs claimed general damages and special damages including out of pocket expenses. First up, I accept that the plaintiffs should be compensated by an award of general damages. I have no doubt that the injuries they had sustained in the accident had caused them pain and loss of amenities. The issue here is, how much should be awarded to them? I turn to past decided cases to draw some guidance to answer this question.

14. In Peter Nangain Kol -v- Shorncliffe (PNG) Limited (2001) N2121, the plaintiff in that case suffered injuries whilst driving a PMV at night, and drove into a pile of rubbish and gravel (which had been left by the defendant) and was injured. The trial was conducted in relation to assessment of damages as default judgment had been entered against the defendant. The plaintiff suffered lacerations to his nose, left knee, as well as his chest. The evidence presented by the doctors showed that the plaintiff suffered a permanent injury to his nose which had left him with nasal speech and some problems with his breathing. Hinchliffe, J awarded K9,500.00 as general damages for pain and suffering.

15. In Thomas Jinamy -v- The State (2008) N3481, the plaintiff fell from a foot bridge after it gave way and collapsed. He sustained general wasting of the left arm, left arm was useless from the shoulder down, loss of sensory of the whole left arm and all joints of fixed extension, shoulder joints stiff and painful for any movement and fingers had fixed flexion. It was assessed that the plaintiff lost 15% effective use of the left arm and 85% loss due to other unrelated causes thereby giving 100% loss of use of the left arm. After taking into account these injuries and inflation, I awarded K14,000.00 as general damages for pain and suffering.

16. In Armiger -v- The Government of Papua New Guinea [1978] PNGLR 516, the Court awarded K8,500.00 to the plaintiff for a whiplash type of injuries which involved injuries to the shoulder, arm and laceration to the scalp, neck and gum. But there were no fractured bones. In Mondo Pakau -v- Motor Vehicles Insurance (PNG) Trust Limited [1993] PNGLR 73, the Court awarded K15,000.00 to the plaintiff as general damages for pain and suffering following a motor vehicle accident where the plaintiff sustained back injuries with disability assessed between 25-35%.

17. In my view, the injuries sustained by the plaintiff Lusray Kolao are similar to the injuries sustained by the plaintiff in Peter Nangain Kol’s case (supra) and Armiger’s case (supra) attracting damages between K8,500.00 and K9,500.00. The injuries sustained by the plaintiff in Thomas Jinamy’s case (supra) and Mondo Pokau’s case (supra) were more serious than those sustained by the plaintiff Lusray Kolao, hence they attracted higher awards of K14,000.00 and K15,000.00 respectively. And so, taking into account the awards in Peter Nangain Kol’s case (supra) and Armiger’s case (supra), and inflation as was done by the Supreme Court in Andrew Moka -v- Motor Vehicles Insurance Limited (2004) SC729, I award K10,000.00 as general damages for this plaintiff.

18. As for the plaintiff Okara Negan, I am of the view that her injuries are more serious than the plaintiff Lusray Kolao. However, according to Dr Kulunga, they have healed leaving no permanent disability. And so striking a balance between the awards in Peter Nangain Kol’s case (supra) and Armiger’s case (supra) which attracted damages between K8,500.00 and K9,500.00, also taking into inflation and no permanent disability in her case, I award K8,000.00 as general damages.

19. Secondly, in relation to special damages and out of pocket expenses, the plaintiff Lusray Kolao said that he spent K100.00 for medical bills and produced receipts of payments marked as annexure "D" to his affidavit (exhibit "P1") to verify payments. Special damages must be strictly proven and in this case, the plaintiff had produced receipts of payments to prove his medical costs. The defendant does not dispute the amount nor does it deny that the plaintiff had incurred medical costs in seeking treatment. I am satisfied that the plaintiff has proven the claim and I award K100.00.

20. In addition to special damages, plaintiff claimed out of pocket expenses for transportation costs, accommodation, costs for food and drinks when he sought medical treatment in Mt Hagen as he hailed from Lakemanda village in Wapenamanda and also to pursue the claim against the defendant with his lawyers. The expenses had been incurred for numerous trips to and from his village, accommodation, food and drinks while seeking medical treatment and to follow up his claim with his lawyers. He had not produced receipts of payments as PMV owners do not provide them. I accept that the plaintiff is from Lakemanda village in Wapenamanda in the Enga Province and have no doubt that he would have spent money for transportation to get to Mt Hagen and return, accommodation, food and drinks in order to obtain medical treatment and pursue the claim with his lawyers. He said he spent K2,000.00 but because he had not been able to produce receipts of payments, I will award a normal amount of K500.00.

21. As for the plaintiff Okara Negan, she also claimed special damages and out of pocket expenses. She said that she spent K200.00 for medical bills and produced a receipt of payment marked as annexure "C" to her affidavit (exhibit "P1") to verify payment. The defendant does not dispute the amount nor does it deny that the plaintiff had incurred medical costs in seeking treatment. I am satisfied that the plaintiff has proven the claim and I award K200.00.

22. As for out of pocket expenses, she claimed transportation costs, accommodation and costs for food and drinks when she sought medical treatment in Mt Hagen as she hailed from Wabag and also to pursue the claim against the defendant. The expenses had been incurred for numerous trips to and from her village for medical treatment and to follow up her claim with her lawyers. She too had not produced receipts of payments as PMV owners do not provide them. I accept that the plaintiff is from Wabag in the Enga Province and have no doubt that she would have spent money for transportation to get to Mt Hagen and return, accommodation, food and drinks in order to obtain medical treatment and pursue the claim with her lawyers. She also said she spent K2,000.00 but because she had not been able to produce receipts of payments, I will award a normal amount of K500.00.

23. Finally, the plaintiffs also claimed economic losses. I make no award for economic losses because they had not adequately pleaded them in their respective statement of claims. Hence, no award under this head will be made. I also award interest at 8% to run from the date of the issue of writ of summons to the date of judgment to each plaintiff which shall be calculated as follows: for plaintiff Lusray Kolao at 8% of K10,600.00 (general damages, special damages and out of pocket expenses) at a daily rate of K2.32.00 for 3,563 days is K8,266.16 and as for the plaintiff Okara Negan, at 8% of K8,700.00 (general damages, special damages and out of pocket expenses) at a daily rate of K1.90 for 3,563 days is K6,769.70. I also order the defendant to pay their legal costs to be taxed if not agreed.

Judgment and orders accordingly.

____________________________________

Kopunye Lawyers: Lawyers for the Plaintiffs
Acting Solicitor-General: Lawyers for the Defendant