Mathew John Westcott v Motor Vehicles Insurance Limited and Collins & Leahy Limited trading as East West Transport and Samson Oumba (2008) N3565

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 31 October 2008
• Docket Number: WS 250 OF 2004
• Citation: (2008) N3565
• Court: National Court
• Year: 2008
• Judgement Number: N3565

Full Title: WS 250 OF 2004; Mathew John Westcott v Motor Vehicles Insurance Limited and Collins & Leahy Limited trading as East West Transport and Samson Oumba (2008) N3565

National Court: Davani J

Judgment Delivered: 31 October 2008

N3565

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 250 OF 2004

BETWEEN:

MATHEW JOHN WESTCOTT

Plaintiff

AND:

MOTOR VEHICLES INSURANCE LIMITED

First Defendant

AND:

COLLINS & LEAHY LIMITED trading as EAST WEST TRANSPORT

Second Defendant

AND:

SAMSON OUMBA

Third Defendant

Goroka: Davani .J

2007: 5th, 14th November

2008: 31st October

NEGLIGENCE – Liability – Motorbike with pillion passenger – collision with a truck – whether plaintiff is contributorily negligent

EVIDENCE – Conviction in lower court – admissibility of Court records an issue – ss.45, 47 of Evidence Act Chapter 48

DAMAGES – leg injury – compound fracture of right femur, right tibia and fibula – fracture of right hand – permanent disabilities and scarring to right thigh, knee, calf and 1cm shortening of leg – osteoarthritis

DAMAGES – Maximum liability – other defendants to pay excess – s.49(2)(a)(i); s.54(1)(5) of Motor Vehicles (Third Party) Insurance Act Chapter 295

Facts

On 30th June, 2002, along the Okuk Highway, the plaintiff was driving a motorcycle with a pillion passenger, when his motorcycle was struck by a truck travelling in the opposite direction. The truck had on its tray a large container which struck the plaintiff’s motorcycle as he was turning a bend in the road.

The plaintiff and his pillion passenger, both sustained serious injuries. The plaintiff sustained compound fractures to his metacarpals.

The third defendant driver was charged with dangerous driving causing grievous bodily harm and was convicted by the District Court and sentenced.

Presently, the plaintiff suffers these permanent injuries, disabilities and loss of function to affected parts of his body.

i. Right leg – 80% loss

ii. Right leg shortening – 100% change

iii. Scarring of skin and muscles – 50% loss

iv. Quality of life, pain and loss of full use of the right leg – 60% loss

v. Osteomyelitis (inflammation of the bone) – 25%

vi. Psychological trauma – 40%

Issues

The Court identified eight (8) issues which when summarized are;

i. Whether the third defendant was negligent in his driving?

ii. Whether the plaintiff was contributorily negligent?

iii. If the third defendant is negligent, is the second defendant, his employer, vicariously liable for the third defendant’s actions?

iv. Should the depositions of the District Court that found the third defendant guilty of Dangerous Driving Causing Grievous Bodily Harm, be relied on by this Court to assist it in determining whether the third defendant was negligent in his driving?

v. If the second and third Defendants are negligent, how much is the plaintiff entitled to?

Held

i. That the third defendant was negligent in his driving.

ii. That the plaintiff was not contributorily negligent.

iii. Yes, the second defendant is vicariously liable for the third defendant’s actions.

iv. Yes.

v. - First Defendant MVIL – K125,449.18 which has already been paid.

- Third defendant East West to pay excess amounts of US$476,291.80 and AUD$5,705.36.

- The third defendant effectively pays the excess amount set out above, which amount is over and above the statutory maximum of K150,000.00.

Cases cited

Vevehupa v MVIT [1983] PNGLR 343

Caedmon Koieba v MVIL [1984] PNGLR 365

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

George Kiak v MVIT [1986] PNGLR 265

Pangis Toea v Motor Vehicles Insurance (PNG) Trust & The State [1986] PNGLR 294

Colbert v The State [1988 – 89] PNGLR 590

Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363

Moses Yere & Mt Hagen Gold Club (1996) N1648

Roth v OK Tedi Mining Limited (1998) N1788

Nelson Uro v The State (2001) N2056

Bosip Oka v MVIL [2001] N2122

Shelley Kupo v MVIT (2002) N2282

Swingley v MVIT (2004) N2767

Counsel

I.R. Molloy and M. Mukwesipu, for the plaintiff

First defendant was unrepresented

P. Yange and M. Wilson, for the second and third defendants

DECISION

31 October, 2008

1. DAVANI .J: This matter is before me for hearing on both liability and quantum, as agreed to by both counsel at the pre-trial stages and at the commencement of trial.

Introduction

2. This is a claim by Mathew John Westcott for damages, for injuries he sustained as a result of a motor vehicle accident in Goroka, Eastern Highlands Province, on 30th June, 2002, claim made by Writ of Summons and Statement of Claim filed on 17th March, 2004. Mathew Westcott alleges reckless driving and negligence by Samson Oumba, who was the driver of the truck owned by Collins & Leahy Limited, trading as East West Transport (‘East West’), which struck the motorbike he was driving and which resulted in him sustaining serious injuries.

Criminal Proceedings

3. Thereafter, Samson Oumba was charged with the offence of dangerous driving causing grievously bodily harm to Mathew Westcott and one other, charge laid under Section 328(2)(5) of the Criminal Code Act, chapter 262. The trial was conducted before a magistrate in the Goroka District Court, after which Samson Oumba was found guilty of that offence and convicted on 30th January, 2004. He was sentenced to a period of 18 months in hard labour. Twelve (12) months of that sentence was suspended on conditions. Samson Oumba did not lodge an appeal against that conviction.

Deed of Release

4. The “Statement of Agreed and Disputed Facts” filed by Stevens Lawyers on 9th November, 2007 (‘Statement’) is signed by Mathew Westcott’s lawyers and Warner Shand Lawyers, lawyers for Samson Oumba and East West. The Statement refers to an out of court settlement between Mathew Westcott and the first defendant, the Motor Vehicles Insurance Limited (‘MVIL’) “on a without admission of liability” (see pg. 1 of Deed of Release dated 8th August, 2007) having regard to the MVIL’s limit of liability under s. 49(2)(a)(i) of the Motor Vehicles (Third Party) Insurance Act, chapter 295 (the ‘Act’), which is K150,000.00. As part of the settlement, Mathew Westcott is at liberty to continue this proceeding, against Samson Oumba and East West, for the purpose of recovering the excess (if any) pursuant to s. 54(5) of the Act. Mathew Westcott tendered into Court the Deed of Release which agreed to a settlement in the sum of K172,979.45, which was inclusive of Mathew Westcott’s lawyer’s fees.

5. The Deed of Release states further that for the purpose of entering judgment in the excess amount, that the court is at liberty to enter judgment against the first defendant in a sum less than K150,000.00 or an appropriate award of damages under s.54(1) of the Act.

Issues:

6. The issues agreed to by both parties as contained in the Statement are;

a. Whether or not, Samson Oumba was negligent whilst driving East West’s motor vehicle?

b. Whether or not, Mathew Westcott was negligent in any way whilst riding the motorbike?

c. Whether or not, Mathew Westcott suffered some personal injuries requiring medical treatment and whether he suffered any permanent disabilities as a result of these injuries?

d. Whether or not, the injuries suffered by Mathew Westcott affected his future earning capacity?

e. Whether or not, Mathew Westcott will incur any future medical expenses in relation to the injuries he sustained?

f. Whether or not, Samson Oumba and East West are liable for any extra amount where they deny liability and where damages were not assessed for the sum agreed on a “without admission of liability basis” between the plaintiff and the MVIL?

g. Whether or not, Mathew Westcott required and will require assistance in carrying out daily functions?

h. Whether or not, Mathew Westcott is entitled to an award of damages against Samson Oumba and East West?

i. The amount of damages (if any), under each head of damages, to be awarded to Mathew Westcott against Samson Oumba and East West.

j. Whether the award (if any), should be reduced and if so, by how much, for contributory negligence?

k. The amount (if any) for interest on damages.

l. The award of costs.

7. To answer these, the court will review the evidence of all witnesses.

Mathew Westcott’s claim

8. His claim is as pleaded in the Writ of Summons and Statement of Claim. The allegations of negligence are pleaded in paragraphs 7 to 10 of the Statement of Claim. Particulars of the medical treatment he sought and obtained are pleaded in paragraph 11 of the Statement of Claim. Permanent injuries suffered are pleaded in paragraph 12 of the Statement of Claim. The losses suffered by Mathew Westcott are pleaded in paragraphs 13 to 20 of the Statement of Claim.

Samson Oumba’s Defence

9. The MVIL, East West and Samson Oumba, plead contributory negligence by Mathew Westcott, in their Defence. They deny that they are responsible for the accident and plead this in their Defence filed on 3rd May, 2004. I have set out in full in the latter part of this decision the particulars of contributory negligence as pleaded in the Defence.

Liability

A. Issues

10. The issues that are pertinent towards establishing liability are;

i) Whether or not, Samson Oumba was negligent whilst...