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Kopon v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 29; N1084 (22 July 1992)

Unreported National Court Decisions

N1084

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 122 OF 1990
PONING KOPON
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
19 June 1992
22 July 1992

NEGLIGENCE - liability - dependency claim - deceased a pedestrian knocked down by vehicle - identity of vehicle for purpose of claim - defence admits the insurance of the vehicle - contributory negligence in the deceased.

DAMAGES - dependency claim - widow and children and parents of deceased - villager.

Counsel:

S. Norum, for the Plaintiff

A. Kandakasi, for the Defendant

WOODS J: The Plaintiff is idow of o of one Temba Reia who was killed when he was struck by a vehicle whilst crossing the Highway at Dobel Market near Mt Hagen. The plaintiff is claiming for herself and her children and the deceased’s parents.

The incident was seen by a witness Simon Koropa who says after a man was knocked over he chased after the vehicle and identified it as registration number ACT 209 and he believed it was owned by the wife of a man who worked for Panga Coffee.

There is no evidence by any policeman who investigated the accident nor is there any police Motor Accident Report to assist.

To claim against the Motor Vehicles Insurance Trust under s.54 of the Motor Vehicles (Third Party Insurance) Act you must prove that your injuries or the death is caused by or arose out of the use of -

a) ҈& a60; a motormotor vehicle insured under this Act; or

b) an uninsured motor vehicla in a public street; or

c);ټ a motor vehicle oc a on a pn a public street where the identity of thof the motor vehicle cannot after due enqund sebe esshed.

You must therefore first establish the basis of your claim namely establish under which hich of thof the aboe above 3 categories your claim comes under. Whilst the plaintiff has not established the registration and ownership and insurance details of the vehicle that struck the deceased at the market a witness gives the registration and who he believes the owner is and the defendant in its defence does admit that at all times the vehicle was insured with the Defendant pursuant to the Act. The claim therefore is based on it being a registered vehicle insured under the Act.

The witness to the incident at the Dobel Market does not actually identify who the person was who was struck and the evidence only assumes that when the Plaintiff heard that her husband was knocked down at the market on that day it was the person the eye witness saw being knocked down. Is that enough positive identification. Is there a possibility that 2 people may have been knocked down and killed that day. There is no evidence to allow for such confusion so I am satisfied on the balance of probabilities that the person Simon Koropa saw being knocked down was the Plaintiff’s husband.

Simon says that the vehicle was travelling very fast and the deceased crossed the road from in front of a large truck that was parked at the side of the road. This does suggest that the deceased may have come out suddenly without any warning and without looking carefully. Whilst this is a busy part of the highway there is a responsibility on pedestrians to look carefully before attempting to cross the road. Unfortunately there is no police Motor Accident Report tendered to give an independent report on the incident from a person in authority.

Such a report is essential to give an overview of the scene and the position of any relevant vehicles at the time. Also there is no police evidence as to whether from their investigation of the accident they laid any charges against anyone for driving offences. So I am just left with the evidence of one man that the deceased was crossing the road from in front of a large truck. This therefore suggests that the deceased may have been negligent himself and from the description he may have been the predominantly negligent party. I therefore find contributory negligence in the deceased and I apportion 60 percent of the negligence to him.

QUANTUM.

According to the statement of claim as amended the plaintiff is claiming on behalf of herself and her two children John aged about 8 years now and Michael aged about 5 years now and also on behalf of the parents of the deceased. Whilst the evidence is not clear that the deceased actually supported his parents as they appeared to be living separately before his death the Court must recognise that the parents must have gained some benefit and help from their son in the traditional subsistence economy and further that as they got older they would rely on their son for support. So the court must allow for some dependency loss by the parents. There is no exact evidence or assistance as to the age of the plaintiff and the dependants however the plaintiff appears now to be about 26 years of age and I will estimate the deceased to be about 30 years of age. It has been put that the ages of the parents is between 50 and 55. The deceased was a villager with no regular wage income but lived by his efforts in a cash crop and subsistence village economy. He and his wife had coffee trees and gardens. Whilst the wife does do a lot of the work in the gardens there must also be value in the husband’s work. Whilst some figures are mentioned as monies earned from the coffee they are not clearly defined as being net or gross or over what period they were obtained. I must therefore assess the deceased’s contributions to the family in a village subsistence economy where there are no exact figures to work from. I have found that the deceased would have been aged about 30 years at his death so I will allow for a dependency of 25 years for the widow. I will allow a figure of K5 per week for the widow and K4 per week for each of the 2 children until they attain the age 16 years. I will also allow a figure of K4 per week for each of the deceased’s parents as with their increasing age they would have started becoming dependant on the deceased. I allow their dependency for 10 years.

On contingencies the widow is quite young but still has 2 children to care for I will assess a 25% reduction for contingencies. I will allow a 5% contingency reduction against each of the children and against the parents.

I divide the loss into the loss incurred prior to the trial and then future loss.

Loss to date of judgment being for 3 years 21 weeks at K5 is K885 for the plaintiff plus interest at 24% being K120.65 totals K1005.65; and for each child and the parents at K4 per week is K708 plus interest at 4% being K96.52 totals K804.52.

Future loss is:

Less 60% contributory negligence the total becomes K5,379.89 and then less the K2,000 basic protection amount already paid it becomes K3,379.89

I order judgment for K3,379.89

I will assume that the basic protection payment has been applied for the benefit of all the dependents so I will reduce each dependents shares equally.

I order the sum of K1,268.29 be paid to the plaintiff Poning Kopon.

I order the sums of K423.80 be paid each to Reia and Puka the parents of the deceased.

I order the sum of K1,264.80 be paid to the Registrar to be invested by him as to K487.24 on behalf of John Temba until he attains the age of 18 years which shall be deemed to occur on 22nd July 2002, and as to K777.56 on behalf of Michael Temba until he attains the age of 18 years which shall be deemed to occur on 22nd July 2005.

Lawyer for the plaintiff: J Mek Teine.

Lawyer for the defendant: Young & Williams.