DC356

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 40 OF 2003

BETWEEN

John Wii
Complainant

V

Motor Vehicles Insurance Limited
Defendant

Mt. Hagen: M.M. Pupaka
2004: 22nd April; 13th & 14th May

Cases Cited
Iabari & Anor v Sapat & The State N973

Counsel
Ms. R. Kalepo For The Complainant
Mr. G. Poole For The Defendant

20th July 2004

M.M. PUPAKA: The complainant, John Wii, of Anda Village Anglimp WHP, sued the defendant Trust for damages on behalf of himself and his wife pleading wrongful death of their daughter Rebecca John, (hereinafter referred as the deceased), who is said to have died in a motor vehicle accident on 2nd January 2001 at the Anda Village /Okuk Highway road junction.

The Facts

The facts, according to the complainant and his witnesses, are that on 2nd January 2001, at about 1.00pm, the deceased, her mother Clara John (who is the complainant’s 4th witness), two other younger siblings and one Ms. Nondopa Poldine (who is complainant’s 5th witness) were waiting to catch a PMV traveling to Mt. Hagen. They were at the Anda Village /Okuk Highway road junction. They were sitting (and not standing as pleaded in the statement of claim) close to each other at the road junction. The road junction is where people from Anda Village usually catch PMV.

The vehicle that ran down the deceased came up from the general direction of Minj. Evidence is that there appeared to be something wrong with the vehicle, for it left its side of the road and crossed over on to the other lane and onto the opposite side of the road, where the deceased and her relatives were sitting. Clara John and Nondopa Poldine say they had no warning of the vehicle bearing down on them, more so the deceased who was in front of them. They say they and the other younger children safely scrambled for cover, but the deceased was run over because she was first in line (relative to the oncoming vehicle) and the vehicle had by then come upon them. These are evidence from the complainant’s witnesses, but these are not contested so I would accept them as evidence of what happened, at least up to that point in time. A medical report, which is in evidence by consent of the parties, indicates that the deceased died of respiratory failure as a result of contused lungs suffered in the accident.

The complainant said the vehicle was a white coloured dump truck, which he recognized as belonging to John Malt of Ketipung Village and it was still overturned at the scene of the accident, when he arrived there after receiving news of the accident. Witness Pupti Ok also said the vehicle was a white dump truck belonging to John Malt of Ketipung Village. Clara John and Nondopa Poldine said much the same in relation the description of the vehicle, except that they did not say whom it belonged to.

The Defence

The defence of contributory negligence pleaded in a formal instrument previously filed was practically abandoned, however Mr. Poole, after having cross-examined the complainant’s witnesses, though mostly for veracity only, now submits that there was some degree of contributory negligence. It is submitted that the deceased sat in an unsafe place close to the an area where she knew vehicles were entitled to pass and the deceased failed to take evasive action to avoid being struck down as did the others. I find no evidence from which conduct amounting to contributory negligence would be inferred. The available evidence does not lend any support to the deceased having acted in the manner alleged by the defence and I would say no more on the issue henceforth.
 
Nevertheless the identity of the subject motor vehicle was always at issue, especially from the time the first police investigator, one Constable Takai Dua, (the complainant’s 1st witness), said he never independently established the identity of the vehicle. The second police investigator was not called and when attempts were made to tender his affidavit in his absence it was objected, which objection was allowed.

Mr. Poole further submits that the Court not rely on the Road Accident Report as its contents are nothing more than hearsay, such that the complainant has failed to established the registration status and indeed the identity of the vehicle. It is also submitted that the complainant has failed to produce evidence of due enquiry and search within the meaning of Section 54 (1) © of the Act. Mr. Poole further submits that the vehicle, in the circumstances, could easily be a property of State or of any authority of Government, in which case the defendant would not be liable.

Findings on the evidence

The complainant, (John Wii) and witnesses Pupti Ok and Clara John had attested to affidavits, which were tendered into evidence. At the trial they claimed to know little or had difficulty understanding Pidgin so all of them testified in the Melpa language through an interpreter. Mr. Poole now submits that the Court should not place any weight on these people’s vital recollections. Nevertheless I must say I have no difficulty accepting their story, particularly their evidence in relation to vehicle, which they say was a white coloured dump truck ‘owned’ by John Malt of Ketipung Village. Their recollections of the description and identity of the vehicle are quite credible and not technical or complicated such as to be ordinarily outside the capacity of observation and understanding of unsophisticated village people. For instance had any one of these three witnesses given a detailed account of the make, model, registration and insurance of the vehicle I would treat such evidence with suspicion. However the witnesses were in court, readily available for the defence to raise issue with their ability to observe the particulars they had said they saw, but no serious attempt was made to negate their vital recollections.

I must say at this juncture that the two traffic policemen who took on the case have displayed levels of incompetence I have never before seen in my years on this Bench, presiding over cases like the instant one. The first officer (Constable Takai Dua) simply wrote down on the Road Accident Report details of the alleged hit vehicle, which were provided by others. He did no checks of his own. The details later turned out to be those of a wrong vehicle! He has now admitted making those mistakes. The second policeman, who subsequently became involved in the case after Constable Takai Dua’s mistakes were discovered, has not testified. However it is clear the latter altered the records on the Road Accident Report prepared by Constable Takai Dua’s. He changed the identity and details of the suspect vehicle, more particularly whereas previously Constable Takai Dua had identified the vehicle as a Toyota Land cruiser with the registration number HAC. 986, the second policeman changed the entry identifying the vehicle as a Nissan Truck with registration number AFO. 333. Again the second policeman merely recorded details provided by others whom have themselves not testified in relation to the accuracy of the late entries. I should also say that the Road Accident Report, as amended, discloses the identity and insurance status of the hit vehicle as a Nissan Truck with registration number AFO. 333, which was owned by ‘Lae Interim Authority’. Its registration is noted as having expired on 11th of November 1995, so at the time of the accident it was uninsured.

I am unable to accept or rely on the Road Accident Report, which is solely based on hearsay evidence. None of the complainant’s witnesses recalled giving any information of the vehicle to the traffic policemen. Just where the policemen obtained the details of the vehicle from is a mystery. It has become clear, in hindsight, particularly with the benefit of having considered the evidence in total perspective, that the Court should not have allowed it into evidence, even though its tender was not objected at the time.

However, the rejection of the Road Accident Report notwithstanding, there is credible and cogent evidence adduced by the complainant that his daughter Rebecca was run down and killed on 2nd January 2001 at the Anda Village /Okuk Highway road junction, by a vehicle identified as a white colored Nissan dump truck which was owned by one John Malt of Ketipung of Village. There is a medical report in evidence by consent, which lends credence to that evidence. Though the identity of the vehicle and the date and scene of the accident cannot be primarily established by the medical report, it does contain sufficient primary facts as to the identity of the deceased, the cause and date of her death, and the identity of her village.

I must say that it is evident the Road Accident Report was always worthless for all intents and purposes from the beginning. The complainant’s lawyers must have known it would not pass for evidence. Nevertheless they framed their pleadings on the bases of that Report, particularly alleging that the vehicle was owned by the Lae Interim Authority and was insured against Third Party liability when apparently ownership had passed from Lae Interim Authority and its insurance status was uncertain at best. The complainant should have amended his pleadings prior to trial, particularly after affidavit evidence filed prior to trial clearly contradicted the pleadings in relation to those aspects.

Nevertheless the obvious question is whether the complainant’s failure affects his overall claim against the defendant. I think not. The defendant’s liability to persons like this complainant is a matter of Statute. As long as the death (or injury) is caused in the course of the use of a motor vehicle the Motor Vehicles Insurance Limited is liable, unless it cannot be under only limited circumstances, for instance if the vehicle in question was owned by the State or a State organ or entity. There is evidence in this instant case, as was alluded to above, that the vehicle was owned by one John Malt of Ketipung of Village at the time of the accident. Even then, at some stage prior to the accident, the Lae Interim Authority owned the vehicle, and it was insured with the defendant so it cannot have been an exempt vehicle. Consequently, I must find on the balance that the complainant has proved his case against the defendant pursuant to Section 54 (1) of the Motor Vehicles (Third Party Insurance) Act Chapter 295, which, for the record reads:

"1. Subject to subsection 2, any claim for damages in respect of the death or bodily injury to any person caused by or arising out of the use of:

(a) a motor vehicle insured under this Act; or
(b) an uninsured motor vehicle on a public street; or
(c) a motor vehicle on a public street where the identity of the motor vehicle can not after due inquiry search be established;

Shall be made against he Trust and not against the owner or driver of the motor vehicle and subject to subsection 5, any proceedings to enforce any such claim for damages shall be taken against the Trust and not against the owner or driver of the motor vehicle."

Assessment of Damages

The complainant claimed "General Damages not exceeding the sum of K6, 000.00", "Special Damages including funeral expenses not exceeding K4, 000.00", "Estate Claim", and "Interests & Costs".

I deal with the general damages claim first. The complainant claimed a sum "not exceeding K6, 000.00" for this head of claim. He gave evidence of loss of opportunity to receive bride price, which he no doubt would have received had the deceased not died. He gave a comparative example of the type of payment he received for his first daughter. He told the court of the loss of the assistance of the deceased in the gardens and general traditional obligations that would be expected from her during her lifetime.

I would think the general loss of a possible collect of bride price is an ascertainable gain lost to the complainant. It is not a guaranteed collect for it is subject to possible contingencies such as the girl eloping with someone or marrying a pauper or falling pregnant before marriage with the end result that that the chances of a possible bride price payment is reduced or lost and to a lesser degree the girl dying of natural causes. Of all the possibilities, given current trends in the community, the girl not collecting a bride price or collecting only a token few kina or a pig or two, is real. There are an increasingly high percentage of girls not collecting any bride price in recent times and so quite logically it is a contingency that must always be allowed for in cases like the instant one, even if the defendant has not raised it.

A sum of K4800.00 is submitted as fair. I think the figure is more on the conservative side. The submission is after an allowance of 10% for contingency, but I suspect the final estimate had to be conservative perhaps because the claim of K6, 000.00 under this head was conservative to begin with. However that is the prerogative of the complainant and he is, as matter of law and practice, bound by his initial claim. Anyhow I would allow the K4800.00 as sought in general damages.

Then there is that which has been often referred to as the "loss of expectation of life" or in the language of the Wrongs (Miscellaneous Provisions) Act (Ch No 297), (Sections 25 & 28), the "conventional amount". This amount was not consciously claimed though there is submission for an award hereunder. Nevertheless I think an award under this head is imperative by reason of the nature of the proceedings. It is also a matter of Statute as it is. It is submitted for the complainant that a sum of K1500 is sufficient after allowing for contingency. In the end, all things considered, I am not persuaded K1500.00 is an overly large amount by any standard for the death of a young village girl. Consequently I would award K1500.00 loss of expectation of life.

I now turn to special damages. It is trite law that special damages must be specifically pleaded and strictly proved. In a case like this care must be taken to ensure that general damages are not confused with any special damages. The complainant went to trial on all heads of claim. Regarding his special damages claim he had pleaded "special damages including funeral expenses not exceeding K4, 000.00". Later he had said in his affidavit that he spent upwards of K7, 000.00 on the funeral and K400.00 in transport costs. Then in final submission a sum of K3, 100.00 is sought as being reasonable – it is said the figure is inclusive of all such claims and is being sought on the bases of being reasonable rather than as a strictly proved sum. Further the striking thing about these assertions is that they remain at best mere assertions. Whilst one may not doubt that a village leader and Councilor like this complainant is ordinarily capable of holding funeral feasts over the death of his daughter, it ought to be remembered that the requirement of binding precedent is not about guesswork and presumptions. Disappointing too is the fact that the complainant did not amend his pleadings prior to trial, to at least accommodate the increase from "not exceeding K4, 000.00" to "more than K7, 000.00". It is really now a matter of guesswork as to how much the complainant spent in funeral expenses. Whilst it would be overly presumptive to assess an amount under the special damages claim in the circumstances, I cannot possibly think that is altogether fatal to the complainant’s special damages claim. Justice Salika had occasion to assess a suitable amount under this head in the case of Iabari & Anor v Sapat & The State (N973). His honour having cited the relevant parts of Section 28 of the Wrongs (Miscellaneous Provisions) Act said among other things that expenses envisaged by s 28 are reasonable funeral expenses or expenses reasonably expected to be incurred during a funeral and include reasonable expenses incurred in satisfying customary arrangements, obligations and ceremonies. His honor consequently allowed reasonable funeral expenses at K2406.00 which sum included outlays for among others; clothes for the deceased, food for fourteen days after burial at K50.00 per day and motor vehicle hire for a period of seven days. Consequently I would allow, at a round figure, a sum of K2500.00 as reasonable for special damages.

The complainant has made an "estate claim". I am not sure if this is the head of claim commonly known and referred to as ‘solatium’, but I believe the latter is a lawful head of claim, and it is being sought here on that bases. It has its origin in Section s 29(2) of the Wrongs (Miscellaneous Provisions) Act (Ch No 297). The fixed statutory amount is K600. I would award that amount.

In the final analysis I enter judgment for the complainant in the sum of K9400.00 to be paid with the statutory 8% interest, which shall accrue from the date of summons. The Complainant shall have his costs of this proceeding, to be taxed if not agreed.

Kunai Lawyers: Complainant
White Young & Williams Lawyers: Defendant