Koko Kopele v Motor Vehicles Insurance (PNG) Trust, The Commissioner of Police, Royal Papua New Guinea Constabulary and The Independent State of Papua New Guinea [1983] PNGLR 223

• Jurisdiction: Papua New Guinea
• Judge: McDermott J
• Judgment Date: 02 December 1983
• Court: National Court
• Citation: [1983] PNGLR 223
• Year: 1983
• Judgement Number: N447

Full Title: Koko Kopele v Motor Vehicles Insurance (PNG) Trust, The Commissioner of Police, Royal Papua New Guinea Constabulary and The Independent State of Papua New Guinea [1983] PNGLR 223

National Court: McDermott J

Judgment Delivered: 2 December 1983

1 Negligence—duty of care—apportionment of liability, joint tortfeasors—contributory negligence of passenger

2 Damages—personal injuries—fracture of neck of femur—labourer, male 36—award of K30,000 general damages, including K12,000 for pain and suffering and loss of amenities

3 Damages—calculation of present value of future economic loss—arithmetic approach appropriate rate of interest to be used considered

NEGLIGENCE—Road accident cases—Contributory negligence—Passenger injured—Passenger on overcrowded truck—Reckless and grave risk—Contribution assessed at 70 per cent.

NEGLIGENCE—Duty of care—Road accident cases—Apportionment of liability—Joint tortfeasors—Driver allowing truck to be overcrowded—Police firing tear gas.

DAMAGES—Personal injuries—Particular awards of general damages—Fractured femur—Permanent loss of mobility—Forced to give up employment—Male outdoor labourer aged 37—Award of K12,000 general damages.

DAMAGES—Measure of—Personal injuries—Economic loss—Calculation of present value of future economic loss—Actuarial method adopted—Interest discount rate of 5 per cent appropriate—Notional tax disregarded.

The plaintiff a 37 year old male, married with one child, and employed as an outdoor labourer by the local council claimed damages for personal injuries suffered as the result of a fall from a motor vehicle in which he was a passenger. The principal injury suffered was a fractured neck of the right femur requiring three months hospitalisation and leaving the plaintiff with a permanent disability in restricted mobility and weight bearing. As a result of the injury the plaintiff was forced to give up his employment.

At the time of the accident the plaintiff was a passenger on or near the roof of an overcrowded truck which was proceeding peacefully and lawfully along the highway when it was caught in tear gas fired by police to disperse demonstrators. The plaintiff, on being overcome by the tear gas, fell from the vehicle.

Held:

(1) The driver of the motor vehicle was partly liable for the plaintiff's injury in that in being in control of the motor vehicle he allowed it to be overcrowded with passengers so that the consequence of a passenger falling therefrom was within the recognisable risk created and in part sanctioned by him; his contribution to liability should be apportioned at 30 per cent.

The Government of Papua New Guinea v Moini [1978] PNGLR 184 at 190; and

Cuckow v Polyester Reinforced Products Pty Ltd (1970) 19 FLR 122, considered.

(2) The police were partly liable for the plaintiff's injury in that in allowing the vehicle to proceed in circumstances where it should have been halted passengers in the vehicle lawfully using the roadway were affected by teargas fired by them at demonstrators blocking another part of the highway: their contribution to liability should be apportioned at 70 per cent.

(3) The plaintiff was guilty of contributory negligence in sitting on the roof of a moving truck, and in view of the reckless and grave nature of the risk thereby created, his liability for negligence should be apportioned at 75 per cent.

(4) Damages for pain and suffering and loss of amenities should be assessed at K12,000.

(5) In calculating the present value of future economic loss the appropriate rate of interest should be taken at 5 per cent and the effect of notional tax disregarded.

Hassard v Bougainville Copper Ltd [1981] PNGLR 182, followed.

Todorovic v Waller (1981) 56 ALJR 59 at 78, considered.

Cases Cited.

The following cases are cited in the judgment.

Anis Wambia v The Independent State of Papua New Guinea [1980] PNGLR 567

Browne v Dunn (1893) 6 R 67, HL

Cuckow v Polyester Reinforced Products Pty Ltd (1970) 19 FLR 122.

Cullen v Trappell (1980) 146 CLR 1; 54 ALJR 295; 29 ALR 1.

Cybula, John v Nings Agencies Pty Ltd [1981] PNGLR 120.

Hassard v Bougainville Copper Ltd [1981] PNGLR 182.

Jones v Livox Quarries Ltd [1952] 2 QB 608.

Kaka Kopun v The Independent State of Papua New Guinea [1980] PNGLR 557

Kokonas Kandapak v The Independent State of Papua New Guinea [1980] PNGLR 573

Kuruo Birim v Jovane Mohamad and PNG [1981] PNGLR 545.

Lewis v The Independent State of Papua New Guinea [1980] PNGLR 219

North Shore Transport Company Ltd v Oram [1945] NZLR 552.

Pennington v Norris (1956) 96 CLR 10; 30 ALJ 242.

Sayers v Harlow Urban District Council [1958] 1 WLR 623; [1958] 2 All ER 342.

The Government of Papua New Guinea v Moini [1978] PNGLR 184.

The Insurance Commissioner v Joyce (1948) 77 CLR 39; (1948) 22 ALJR 278; (1948) 2 ALR 356.

The State v Ogadi Minjipa [1977] PNGLR 293

The State v Saka Varimo [1978] PNGLR 62

Todorovic v Waller (1981) 56 ALJR 59; 37 ALR 481.

Traecey v Churchill [1980] 1 NSWR 442.

Trial.

This was an action in which the plaintiff sued to recover damages for personal injuries as a result of a motor vehicle accident.

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McDermott J: The plaintiff claims damages from the defendants for injuries sustained in an alleged motor vehicle accident on 17 January 1980. He claims as a passenger in a vehicle insured by the first defendant and injured:

(a) through the negligence of the insured driver in the care and control of the vehicle and

(b) through the negligence of the second and third defendants in the firing of teargas which caused him to fall from the vehicle.

In pleading, the first defendant denied any negligence or alternatively that the plaintiff was contributorily negligent by sitting on or near the roof of the vehicle. Further, any injury suffered was caused solely or contributed to by the second and third defendants. These defendants in turn denied all allegations and at the trial, amended this defence with leave, to allege the plaintiff himself was contributorily negligent.

I mention these pleadings because at the trial, the evidence of the second and third defendants raised another matter altogether; that teargas was lawfully fired by police and the plaintiff, as a participant in an illegal demonstration which did not disperse when the "riot act" was read, must inferentially suffer the consequences. The first intimation the court had of this was during the evidence of the last defence witness. That this was to be the case for the second and third defendants was not mentioned by counsel in his opening and no questions were directed to the plaintiff, the driver or another passenger, all of whom gave evidence about what had happened to them when the teargas was fired.

Two quite different descriptions of the events thus emerged. Briefly, for the plaintiff, it is one where he was a passenger in a vehicle proceeding down 3 Mile Hill in Port Moresby when it was enveloped in teargas which caused him to fall from the vehicle. The other description is that the plaintiff was a passenger in a vehicle at the head of a demonstration moving down the wrong side of the road and when after two orders for dispersal given by the senior police officer present were ignored, teargas was fired at the demonstrators in order to disperse them in an endeavour to maintain order.

Because of the conduct of the defence of the Police Commissioner and the State, these two descriptions were never brought together and tested against each other.

I am satisfied that the plaintiff was a passenger in a vehicle registered number ABJ780 driven by Doriga Iduhu and insured with the Motor Vehicles Insurance (PNG) Trust pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act (Ch295) in the month of January 1980. I cannot be sure of the date of the accident. The witnesses for the plaintiff are all uneducated, they say it was the 17 January whereas the police officers called say there was no demonstration on that day. They did not say what the exact date was. There is no record of a hospital admission or of sick leave being taken. Although a summons for production was issued for the Port Moresby General Hospital to produce hospital records relating to the plaintiff, it was neither answered nor pursued further. Because it is clear from the evidence of all witnesses that the same incident is being referred to, ie, the day of a strike, the plaintiff being on strike, the call out of police for it and the presence of police on 3 Mile Hill, I infer that the accident took place in mid January 1980.

I find that the plaintiff at the material time, was seated with others on the roof of the cabin of the vehicle, a 2.5 ton truck with tray back. It is not a big truck, see Ex. 1. The driver says he did not know anyone was on the roof; he did not look either...