[1999] PNGLR 537

PAPUA NEW GUINEA

[national court of justice]

Aumi Pysoto Jacob and Two Other Widows plus 10 Children

v

Motor Vehicles Insurance (PNG) Trust (MVIT)

waigani: kapi dcj
20, 21 April; 9 June 1999

Evidence - whether consent of the Trust is required for the plaintiff to call the driver as a witness at the trial under s 53 (1) of Motor Vehicles (Third Party Insurance) Act.

evidence – Failure by counsel to introduce relevant evidence for assessment of damages – Effect of.

Facts

This is a claim for damages arising out of a death, which resulted from a motor vehicle accident on or about the night of 9 December 1994, on the Sir Okuk Highway between Wabag and Laiagam in the Enga Province. The claim is brought against the defendant pursuant to Motor Vehicles (Third Party Insurance) Act Ch 295 and the provisions of Wrongs (Miscellaneous) Act Ch 297. The defendant denies liability.

At the trial, counsel for the plaintiffs sought to call Tony Tambi, the driver of the vehicle as a witness. Counsel for the defendant objected to the calling of this witness on the basis that the defendant did not give written consent in accordance with s 53(1) of the Motor Vehicles (Third Party Insurance) Act Ch 295.

Held

1.	Clearly, the defendant is liable for the negligence of the driver or owner under the Act. It is, therefore, understandable that s 53(1) of the Act requires that the driver and owner ought not to enter into any admission of liability or settlement of any claim without the written consent of the defendant. Ordinarily, a driver or owner would give instructions to the defendant as to the issue of liability and damages (s 53 (1) (a) & (c) Motor Vehicles (Third Party Insurance) Act Ch 295.

2.	The evidence with regard to assessment of damages falls far short of the minimum requirement to award any damages. Counsel for the plaintiffs failed to lead any evidence of the ages of the widows as well as the children. There was no evidence led on the amount of dependency by each of the plaintiffs and their children. There was no evidence of the age of the deceased and the number of years the deceased was expected to live. 

3.	Hence, case dismissed.

Counsel

W Boi, for the plaintiffs.
M Titus, for the defendant.

9 June 1999

Kapi dcj. This is a claim for damages arising out of a death, which resulted from a motor vehicle accident on or about the night of 9 December 1994, on the Sir Okuk Highway between Wabag and Laiagam in the Enga Province. The claim is brought against the defendant pursuant to Motor Vehicles (Third Party Insurance) Act Ch 295 and the provisions of Wrongs (Miscellaneous) Act Ch 295 297. The defendant denies liability.

At the trial, counsel for the plaintiffs sought to call Tony Tambi, the driver of the vehicle as a witness. Counsel for the defendant objected to the calling of this witness on the basis that the defendant did not give written consent in accordance with s 53 (1) of the Motor Vehicles (Third Party Insurance) Act Ch 295.

"53. Duties of owner and driver.

(1)	Where the death of or bodily injury to a person is caused by, or arises out of the use of, a motor vehicle in respect of which a third-party insurance cover is in force –

(a) the owner must, as soon as practicable after the occurrence that resulted in the death or injury, or if he was not then driving the motor vehicle as soon as practicable after he became aware of the occurrence, give a written notification of the occurrence, with particulars as to the date, nature and circumstances, to the Trust; and

(b)	if, at the time of the occurrence, the driver of the motor vehicle was not the owner of the motor vehicle, the driver must as soon as practicable give a written notification –

(i)	to the owner of the motor vehicle; or

(ii)	to the Trust,

of the occurrence, with particulars as to the date, nature and circumstances; and

(c)	the owner and the driver, or either of them, must give such information, in addition to the information referred to in Paragraphs (a) and (b), and take such steps, as the Trust reasonably require, whether or not a claim has been made in respect of the death or bodily injury; and

(d)	the owner or the driver must not, without the written consent of the Trust, make an offer, promise, payment or settlement, or an admission of liability, in respect of the death or bodily injury; and

(e)	the owner or the driver must immediately give to the Trust a written notification of every notice of intention to make a claim given to him, and of every claim made or action brought against him, in respect of the death or bodily injury; and

(f)	where the owner becomes aware that notice of intention to make a claim has been given to, or a claim has been made or an action brought against, the driver in respect of the death or bodily injury, he must immediately give to the Trust a written notification of the notice or claim; and

(g)	the owner or the driver must not, without the written consent of the Trust, enter on, or incur expense in relation to, litigation in respect of any liability against which he is insured under the third-party insurance cover.

Penalty: A fine not exceeding K100.00."

Counsel for the defendant submitted that every claim for damages for bodily injury caused to any person or death caused by or arising out of the use of a motor vehicle insured under the Act must be made against the Trust pursuant to s 54(1). He submitted that the Trust assumes the liability of any claim against the driver or owner of a motor vehicle that is insured with the Trust. He submitted that because of this, s 53 (1)(d) requires that the owner or the driver must not without the written consent of the Trust; make an offer, promise, payment or settlement, or admission of liability in respect of the bodily injury or death. Counsel submitted that the driver did not respond to requests by the defendant to come forward for instructions and he may have conspired with the plaintiffs to give evidence against the interests of the defendant and therefore he should not be allowed to give evidence without the consent of the defendant under s 53(1) of the Act. Counsel relied on a ruling given by Doherty J. which supports the proposition he has put before me in similar circumstances but no reasons for decision were published. 

On the other hand, counsel for the plaintiffs submitted that s 53(1) does not deal with admissibility of evidence before the Court. He submitted on general principle that all relevant evidence must be brought before the Court and it does not matter whether the evidence is led by the plaintiff or the defendant.

I dismissed the objection and allowed the driver to give evidence with reasons to be published at a later date. I completed the trial and reserved my decision in the matter.

I now publish my reasons for decision on the preliminary objection. Clearly, the defendant is liable for the negligence of the driver or owner under the Act. It is, therefore, understandable that s 53(1) of the Act requires that the driver and owner ought not to enter into any admission of liability or settlement of any claim without the written consent of the defendant. Ordinarily, a driver or owner would give instructions to the defendant as to the issue of liability and damages (s 53(1)(a) & (c). The provision envisages that in appropriate cases, the defendant can admit liability or settle claims or refuse to settle cases. This provision goes to protect the interests of the defendant so that drivers and owners do not enter into such negotiations without the defendant. This is as far as this provision can go.

It has no application to whether or not the driver or owner of a motor vehicle should be called to give evidence in Court. That is a different matter altogether. I do not accept the proposition that s 53 (1) of the Act gives any discretion to the defendant either to give or withhold its consent as to whether or not the driver or owner should give evidence in Court.

As to the submission that drivers may conspire with the claimants to make up a story against the defendant, while this may be possible, it is not a question of admissibility. That is a question of weight and credibility and this can be addressed in cross-examination. For these reasons, I dismissed the objection and allowed the driver to give evidence.

Liability

The facts are not in dispute. The driver was the Speaker of the Enga Provincial Assembly at the time of the accident. He purchased a new Toyota Land Cruiser utility registration no. LAF 692 from Ela Motors on 8 December 1994. He drove the new vehicle to his home in Laiagam arriving there in the afternoon. He was required to attend a meeting in Wabag the same evening. About 7 people got on the back of the vehicle and he drove to Wabag arriving there about 6 to 7 pm. After the meeting, he left Wabag well after midnight. While driving back to Laiagam, the vehicle got involved in an accident and the deceased died as a result of the accident. The three wives of the deceased brought this cause of action on behalf of themselves and their children.

Counsel for the plaintiffs relied on evidence of James Kaea who was one of the passengers at the back of the motor vehicle to prove that the vehicle was speeding at the time of the accident. At the critical time, this witness was sleeping and was surprised when the accident happened. He described the vehicle as speeding. He was asked to clarify how fast the vehicle was travelling but was not able to do this. He suggested that the vehicle was speeding because he felt the wind on his face and it was cold. I find that I cannot rely on this evidence to prove that the vehicle was speeding. He was asleep at the critical time and was not able to see what happened. He failed to clarify what he meant by speeding.

The only evidence of any substance as far as the cause of the accident is concerned is the evidence of the driver, Tony Tambi. According to him, the accident occurred on a stretch of road going up a hill. He had changed gear from third to second gear and he estimated that he was travelling at about 10 to 15 kilo-meters per hour. The vehicle hit the stones that were piled up where a culvert was in the process of being constructed on the side of the road. This causes the vehicle to roll down the cliff.

The critical question is; what caused the vehicle to hit the stones at the culvert site? The driver was questioned closely on this issue. I find that this was a truthful witness. At no stage did he try to overstate the true facts. He simply gave evidence of the circumstances and left it to the Court to determine the issue. He did not try to lay blame on anyone or anything. He simply offered the opinion that it was an accident. In determining the issue of the cause of the accident, I take into account that there was a landslide that occurred at this point and there was some loose ground on the surface of the road. The vehicle was travelling at the speed the driver estimated and the vehicle lost control when the tyres hit the loose ground, which caused it to slide on to the stones thereby causing the vehicle to roll over. In all the circumstances, I am not satisfied on the balance of probabilities that the driver was negligent in causing the accident.

Even if I found liability on the part of the driver, the evidence with regard to assessment of damages falls far short of the minimum requirement to award any damages. Counsel for the plaintiffs failed to lead any evidence of the ages of the widows as well as the children. There was no evidence led on the amount of dependency by each of the plaintiffs and their children. There was no evidence of the age of the deceased and the number of years the deceased was expected to live.

In the result I dismiss the cause of action with costs to the defendant.

Lawyers for the plaintiffs: Yapao Lawyers.
Lawyers for the defendant: Young and Williams..