Can a Pedestrian or a Child Claim Against MVIL?

Two groups of road users cannot protect themselves against a badly driven vehicle: people on foot and children. The law treats both as ordinary claimants, with some special rules of procedure for the second.

Pedestrians

A driver owes pedestrians the same objective standard of care as anyone else, adjusted for where they are likely to be. Some of the heaviest injuries in the cases were suffered by pedestrians. In Yakupi v MVIL [2006] PGNC 214; N2981 an able-bodied man walking beside the road from Mount Hagen to Kagamuga was struck and left paraplegic; his damages were assessed at K412,000 and MVIL paid the K150,000 maximum plus interest and costs. In Vali v MVIL [2022] PGNC 220; N9661 a pedestrian on a public street suffered a torn rectum, a ruptured testicle and a fractured pelvis with limb shortening; general damages were K80,000 and total damages K111,552.85, the court having found in an earlier judgment that he was not contributorily negligent. In Kunton v MVIT [1991] PGNC 21; N997 a village woman pedestrian with fractures of the arm and pelvis received a global K15,000.

Pedestrians can, however, be found partly at fault. In Kopon v MVIT [1992] PGNC 29; N1084 a villager knocked down while crossing was held 60 per cent responsible for his own death; in Dinogo v MVIL [2005] PGNC 117; N2839 a 50-year-old man’s damages were cut by 15 per cent; and in Nui v MVIT [1992] PGNC 8; N1044 a man lying on the grass beside the road, run over by a vehicle, had his K6,000 reduced. The usual test applies: did the pedestrian take reasonable care for his own safety in the circumstances, including the lighting, the traffic and his own condition.

Children

A child cannot sue in his own name. Proceedings are brought “by his next friend” — usually a parent — and the representative capacity must be stated on the writ (Mongogl v MVIT [1985] PGLawRp 490; [1985] PNGLR 300). The site’s National Court series explains the next friend. Substantively, the child’s claim is assessed like an adult’s, with two adjustments.

The standard of care owed to a child is higher, because children are unpredictable. In Kumbe v MVIL [2005] PGNC 110; N2860 a schoolboy playing touch rugby in a park was struck by a utility driven across the field and left quadriplegic; the driver owed a duty to those using the park and was liable. In Sos v MVIT [1995] PGLawRp 691; [1995] PNGLR 249 an eleven-year-old fell from the back of a speeding PMV; the driver was 60 per cent liable. But an accompanying adult shares responsibility for a child’s safety: the guardian in Sos bore 40 per cent, and in Ken v MVIL [2022] PGNC 516; N10020 the trial judge apportioned 30 per cent to the parents of a five-year-old who was crossing a divided road behind his mother when he was killed, though the Supreme Court later set the judgment aside on evidentiary grounds in MVIL v Ken [2023] PGSC 170; SC2522.

The child’s loss of earning capacity is assessed by asking whether there is a substantial risk that the injury will restrict the range of employment open to the child, and if so, valuing that risk: Coady v MVIT [1987] PGSC 6; [1987] PNGLR 55, a boy of four with facial scarring and double vision, K12,000 general damages. See loss of earning capacity.

What children have been awarded

• Infant of one, greenstick fracture of collar bone, no lasting effect: K1,000 (Paul v MVIT [1990] PGNC 45; N896).
• Boy of four, depressed skull fracture, possible epilepsy: K12,000 (Maipen v MVIT [1990] PGLawRp 316; [1990] PNGLR 559).
• Girl of eleven, severe head injury with intracranial haemorrhage: K20,000 before the 40 per cent reduction (Sos).
• Schoolboy, quadriplegia: K150,000 cap (Kumbe).
• Student aged 16 to 19: K40,000 general damages and K30,000 future economic loss, upheld in MVIL v Let [2005] PGSC 16; SC816.

Court approval and payment into court

No settlement of a child’s claim is binding without the court’s approval. The National Court exercises its parens patriae jurisdiction and will refuse to sanction a compromise it thinks inadequate: in None v MVIT [1990] PGLawRp 317; [1990] PNGLR 561 approval was refused because the dependency of children had been calculated to age 16 rather than 18. In Tapie v MVIT [1986] PGNC 28; [1986] PNGLR 78 the court refused to sanction a settlement where Basic Protection Compensation earlier paid for the children could not be shown to have reached them. Once damages are awarded, the child’s share is ordinarily paid into court and invested by the Registrar, or paid to the Public Curator, until the child turns eighteen: Coady (K13,653.59 to the Public Curator), Tapi v MVIT (K7,925 invested for the children). Costs may be awarded to the child even where a payment into court exceeded the judgment, because the settlement needed approval (Coady).