Kia Temai v Motor Vehicles Insurance (PNG) Trust (1996) N1442

• Jurisdiction: Papua New Guinea
• Judge: Salika J
• Citation: (1996) N1442
• Court: National Court
• Year: 1996
• Judgement Number: N1442

Full Title: Kia Temai v Motor Vehicles Insurance (PNG) Trust (1996) N1442

National Court: Salika J

Judgment Delivered: July 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 798 OF 1994

KIA TEMAI

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Salika J

July 1996

MOTOR VEHICLE ACCIDENT — Burst tyre — personal injuries — liability to be proved — onus on plaintiff.

Cases Cited

June Bonnie v Motor Vehicles Insurance (PNG) Trust (1994) PNGLR 393

Counsel:

Mr Aluwe for the Plaintiff

Ms R Thompson for the Defendant

JUDGMENT

July 1996

SALIKA J: This matter was in before the court by way of a Writ of Summons issued by the plaintiff against the defendant. The Plaintiff claims damages pursuant to the Motor Vehicle (Third Party Insurance) Act Chapter 295 and interests pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act chapter 52.

The plaintiff gave evidence that she was involved in a motor vehicle accident. She said she was travelling on a Mitsubishi open back utility. She sat on top of a bag of kaukau in the tray of the vehicle. She gave evidence that one of the tyres of the vehicle had a puncture and the vehicle overturned. However in cross examination she said when the tyre punctured the vehicle went to the side of the road but did not capsize. She said after the accident she was taken to the Goroka hospital and was admitted there for 8 days. A medical report was prepared by a doctor who described her injuries as:

"She was seen to be in pain but otherwise stable. Examination showed right ankle to be completed distorted with increased mobility, swelling tenderness and crepitus, and abrasions (minor) on the lateral aspect of the right foot. The diagnosis of a Pott's Fracture of the right ankle was confirmed with the X-ray (X-ray No: E7478) — showing whole ankle dislocation with fracture of the medial malleolus.

Treatment involved:

a) Closed reduction and plaster cast of that ankle (Right) under general anaesthesia (Ketamine).

b) Analgesics for pain — Pethidine.

c) Rest for right lower limb closed reduction of injury (fracture dislocation right ankle) was satisfactory as per X-ray No E7583, and was discharged after eight days.

Her progress to date has been satisfactory after five months with clinical and radiological (X-ray F1559) union and stability of the ankle, and no permanent disability exists — functionally. However physically the injury is estimated to be of a loss of 5%. She will lead a normal life otherwise."

Another witness Temai Peter gave evidence in support of the plaintiffs case saying that both the plaintiff and himself were travelling together in the same vehicle from Asaro when it overturned and capsized. He said when it overturned he jumped out of the vehicle. He gave evidence that on the 1st February 1994 he went to the police station to pick up a report of the accident done by the police.

That was the only oral evidence called. The medical report was tendered into evidence by consent while the accident report was not accepted into evidence.

The defendant did not call any evidence.

I find the following facts to have been established by evidence:

(a) There was a motor vehicle accident in which the plaintiff was travelling in.

(b) The plaintiff was a passenger with other people at the tray of the vehicle.

(c) The plaintiff was sitting on top of a kaukau bag close to the rear of the vehicle while the vehicle was moving.

(d) One of the tyres of the vehicle was punctured and as a result the vehicle went to the side of the road and overturned.

(e) The plaintiff...