Pangis Toea v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Los J
• Judgment Date: 05 September 1986
• Citation: [1986] PNGLR 294
• Court: National Court
• Year: 1986
• Judgement Number: N554

National Court: Los J

Judgment Delivered: 5 September 1986

1 Negligence—emergency—those who have created danger should not be critical

2 Damages—award for total effect upon injury to arm and leg similar but not equal to award to paraplegic case

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DAMAGES—Personal injuries—Particular awards of general damages—Arm and leg injuries—Fractures of left arm, humerus and wrist—Fractures and dislocation of left femur and hip—Shortening of arm—Claw arm with wasting—Arm totally and permanently useless—Shortening of leg—Functional disability of 70 per cent—Female villager in mid forties—Marriage breakup consequential on injuries—Award of K35,000 general damages.

The plaintiff, a village woman in her mid forties, and married, was injured in a motor vehicle accident and suffered fractures of the left arm and left humerus, a compound fracture of the left wrist, a fracture of the left femur and a fracture dislocation of the left hip. She was hospitalised for six months. Her permanent disabilities included a totally useless and wasted left arm with a claw hand and a 70 per cent loss of the efficient use of her left leg with probability of future osteoarthritis. As a result of her injured state her marriage broke up.

Held,

general damages for pain and suffering and loss of amenities should be assessed at K35,000.

Cases Cited

Aundak Kupil v The Independent State of Papua New Guinea [1983] PNGLR 350

Caedmon Koieba v MVIT [1984] PNGLR 365

Darvill v MVIT [1980] PNGLR 548.

Edwards v Jordan Lighting [1978] PNGLR 273.

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

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

David Yala Pumbu v Teta Tenken [1986] PNGLR 289

United Uranium NL v Fisher [1965] ALR 99.

Yap v The Independent State of Papua New Guinea (Unreported, National Court, WS 92, 93, 94 of 1984, 22 March 1985).

Trial

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

Counsel:

D O'Connor, for plaintiff.

M Challinger, for first defendant.

D Lambu, for second defendant.

Cur adv vult

5 September 1986

Los J: The plaintiff's claim arises from the injuries she received in a traffic accident on 2 June 1980. She was a passenger on a Toyota land cruiser (the first vehicle) registered number ACN–441 insured by the first defendant. The first vehicle was travelling from Wapenamanda to Wabag and along the road it collided with a Government vehicle (the second vehicle) registered number ZGC–050 owned by the second defendant. The plaintiff claims that either the driver of the first or the second vehicle or both drivers were negligent in his or their manner of driving, control and management of the vehicles. Both liability and damages are contested.

LIABILITY

The first defendant and the second defendant appear to agree that there was some negligence on the part of each driver. But the first defendant contends that a substantial contribution of negligence came from the driver of the second vehicle. The second defendant contends to the contrary.

The major factors highlighted in the evidence were speed and travelling on the wrong side of the road. There was a claim of overloading of the first vehicle but it seems that if there was absence of speed and/or travelling on the wrong side, the overloading would be relevant.

(A) SPEED

One of the two witnesses who were in the first vehicle apart from the plaintiff said the first vehicle was speeding, likewise the second vehicle was speeding. The plaintiff's evidence is that the vehicle she was in, ie, the first vehicle, was travelling at a high speed. The Government vehicle was also travelling at a high speed. The driver of the second vehicle said as he had to go up a hill he had to travel at thirty to thirty–five miles per hour. The plaintiff and the other passengers' qualification to estimate speed has not been established. Whether all or any of them hold licences to drive and have experience to say how fast a vehicle travels I cannot tell. Further, whether they have travelled in the vehicles to an extent that they are able to tell the difference between normal speed and high speed has not been established. The driver of the Government vehicle of course had to protect his own credibility. Understandably therefore his evidence as to speed would have to be less extreme. Nevertheless the absence of any evidence that any of the vehicles slowed down and stopped indicate that the speed of both cars was such that stopping was impossible. The effect of the impact also tells of the speed of both cars. On impact the first car veered to the left and overturned. In my view the overturning was helped by the force of the second vehicle with its weight and speed. The weight of the second vehicle alone could not have forced the first vehicle to overturn. According to the evidence the first vehicle had a greater load than the second vehicle. The speed of the first vehicle itself and sudden veering to the left also in my view caused the overturn. I conclude that both vehicles were travelling at an excessive speed in the circumstances.

(B) TRAVELLING ON WRONG SIDE OF THE ROAD

The evidence has established that the road is wide enough for two cars to pass each other without any problem. The accident occurred substantially because either one or both of the vehicles were travelling on the wrong sides of the road. The driver of the second vehicle said he was on the correct side of the road but he turned to the right when he saw that the first vehicle was on the incorrect side of the road. The only way to avoid an accident was to turn to his right. The plaintiff and the other witnesses blamed the second car for travelling on the incorrect side of the road. I am cautious here on this aspect of the evidence. Indeed some seconds before the impact, the Government vehicle was on the wrong side but its driver explained why. If the plaintiff and her two witnesses were talking about this stage of the accident, it can only corroborate the evidence of the driver of the Government vehicle. The first witness for the plaintiff, Parau Kamungo, admitted he was not looking at the car coming from Wabag as he was looking at the bushes and trees. But he said the "vehicle coming from Wabag was on the way of the vehicle I was in". The second witness, Imbi Nesek, said "the vehicle that was coming from Wabag was on the same side as the vehicle I was in. The vehicle that was coming down from Wabag was trying to kill us. So our driver turned the car over". The plaintiff said "the car I was in was 'giving sixty' (speeding) and the car coming down was also 'giving sixty' (speeding). That car came very close to us. Our car overturned". Their evidence is ambiguous as to whether they describe the time just before the impact when the second vehicle was admittedly on the wrong side or the period when their own vehicle might have been on the wrong side when the Government vehicle might have been on its correct side. The evidence is silent on this important aspect of the case. For some reason neither counsel for the first defendant nor the second defendant has asked any questions to clarify it. If either vehicle was on the wrong side of the road, why was it that the drivers did not see each other's vehicle far ahead so that each could move to his respective side.

The plaintiff and her passenger witnesses said the road was straight—no corners and no hills. A diagram drawn by a witness of the plaintiff who attended the scene of the accident soon after the accident and helped police to prepare a report indicate that (looking towards Wabag) there is a slight turn towards the right. The evidence of the driver of the second vehicle indicates there is a small hill that he had to go down and up before the accident. The turn is so slight that either driver could see...