Unreported National Court Decisions
N1134
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 1167 OF 1990
KAMTAI WAINE
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
Mount Hagen
Woods J
25-26 January 1993
19 February 1993
NEGLIGENCE - Liability - Motor Vehicle Accident - Proof of Registration and Insurance - Negligence - Bad road or negligent driving.
DAMAGES - death - dependency claim - widows and children - Provincial Minister.
Cases Cited:
Alo v MVIT 1992 N1122
Counsel:
DL O’Connor for the Plaintiff
A Kandakasi for the Defendant
19 February 1993
WOODS, J.: This is a claim on behalf of the widows and children of one Yuale Gikau who it is alleged died from injuries he received in a motor vehicle accident on 22 March 1990 when he was a passenger in a motor vehicle registered No AGE 890 driven by Gikau Yuale which went out of control and overturned on the Dege Paume road in the Simbu Province between Gomgale Village and the Gumine township.
The lawyer for the Plaintiff indicated to the court at the beginning of the trial that the named plaintiff Kamtai Waine who was the first wife of the deceased had died a month ago.  In view of the difficultues of ascertaining who is entitled to act on behalf of the estate of the plaintiff and in the circumstances of PNG I feel it is appropriate in a dependency claim like this where the plaintiff was putting her name forward as the initiator of these dependency proceedings to substitute the second wife Polo Del as the Plaintiff.
The witnesses for the Plaintiff as to the circumstances of the accident were a passenger and the police officer who did the investigation into the accident.  The passenger said that she was on the back of the Toyota in question when there was some loose gravel and the road was slippery and the vehicle overturned.  She said that she and two others who were on the back of the utility jumped off the back when the vehicle got into trouble and they do not know what happened to the vehicle as it was at nighttime.  The main evidence of the circumstances of the accident comes from the police constable who investigated it the next day so unfortunately we are left with mainly the hearsay evidence from him and his theories based on the signs he saw at the scene.  He describes the road as a very narrow earth road and the scene was a slope after crossing a river.  It was very muddy and it had been raining so the road surface was very slippery and in attempting to negotiate the slope the vehicle slipped sideways and then off the side of the road down into the river.  The constable felt that from the condition of the road and the weather there was nothing the driver could have done to stop the vehicle sliding off the road and therefore he felt he could not lay any charges against the driver.
Firstly on the identity and registration and insurance of the vehicle involved the Trust submits that the vehicle has not been properly identified so there can be no basis to the claim.  The evidence from the policeman is that he came to the scene the next day and saw a Toyota Landcruiser utility in the river at the base of the cliff beside the road and that it was very badly smashed in and was a complete write-off.  In his Road Accident Report he records the registration number of the vehicle as AGE 890 and that the registration expiry date was 29-12-90.  He also noted that there was a third party insurance policy and recites the number and that it was issued at Kundiawa.  However he does note that there was no safety sticker attached to the vehicle although he said that the windscreen was smashed.  When asked whether he had sighted the registration papers he said he had, somebody had brought them in to him.  He said he did not do a search of the traffice registry, the implication being that he did not need to as he had seen the registration papers.
Is this enough evidence to satisfy the court as to the identity, registration and insurance of the vehicle.  This court must be satisfied on the balance of probabilities.  I have the policeman's evidence of the particulars as given to him.  This is different to the case of Alo V Motor Vehicles Insurance (PNG) Trust 1992 N1122 where the Judge found that there was inconsistencies in the evidence, namely the driver giving a different version of the events.  So in that case the Judge found he could not be satisfied.  However in the case before me now where the owner of the vehicle has been killed and I have clear uncontraverted evidence from the policeman I am satisfied on the balance of probabilities.  The policeman must have been satisfied as he made no suggestion of any charges for driving an unregistered and uninsured vehicle.  The confusion amongst other witnesses as to when the deceased had acquired the vehicle does not create any conflict over the registration.  The fact that he did not drive himself does not create any difficullties as I find nothing unusual in a older leader acquiring a vehicle but relying on relatives or others to drive for him.  Faced with the clear statement and satisfaction of the policeman that he had seen certain documents and obtained certain numbers it was always open to the Trust to produce evidence from its own records that the particular insurance policy number was not current or did not belong to the subject vehicle.
The Trust submits that the medical evidence suggests that the deceased may have been the driver of the vehicle at the time of the accident and thus he cannot claim against himself.  The post mortem report is of severe chest injuries mainly on the right and a laceration on the right forehead and right arm injuries and it is submitted that those injuries are more consistent with a driver hitting a steering wheel rather than a passenger in the left hand side of a vehicle which lands on its left side in a river.  However here we have a vehicle that falls down a 25 metre slope into a river and who can be sure what happens to human beings trapped inside the cabin in such a situation.  All the family agree that the deceased did not know how to drive a vehicle and I think on the balance of probabilities I have to accept the conclusion from that.
The Trust submits that the evidence of the accident and of the condition of the road indicated no negligence in  the driver.  The Trust submits that the accident was caused by the condition of the road.  Whilst it is quite clear that the road was a very bad and difficult road that means that there is a greater onus on the driver to take care.  Obviously over the years other drivers have successfully navigated that section of road.  The greater the danger the more the care the driver must take and I am satisfied that the driver could have managed on this section of road if he had shown more care or been more experienced.  I am satisfied that the driver was on the balance of probabilities the negligent party here in his handling of the vehicle.
I am satisfied that the driver was responsible for the death of the deceased and that the Trust is thereby liable.
ON DAMAGES
This is a dependency claim on behalf of the three remaining wives and three infant children.  The deceased was a village man who had been elected to the last two Provincial Assemblies and was a Minister in the current Assembly.  The current Assembly term only has about 6 months to run.  His salary as a Minister was net K435.00 per fortnight.  The evidence from the wives was that they worked in their gardens and produced vegetables for the family and two of them referred to selling some vegetables for the family at the local market.  However they also say that the deceased used to give them some money each fortnight from his salary.  The Trust submits that he could not have spent all his salary on his family as he had to spend some of his income on his supporters.
The ages of his wives and children as at the date of his death are assessed as follows.
Polo Del aged about 40, her children Yuale Yuale aged 10 years and Kua Yuale aged 3 years, Korai Gena aged about 32 years, with one child Bomaigi Yuale aged 9 years, Apalgi Elwi aged about 27 years.  The deceased would have been about 48 years old at the date of his death.  So he would have had about 7 more working years ahead if we use Public Service ages to go by.  But he was a politician although with all the uncertainties that entails.  His current position as Minister would only have been certian till the middle of 1993.  However as a man who had attained such a position I am entitled to assume that he would have continued to provide for his family in some way for some years.  Although this would be balanced by the fact that having three wives much of the basic necessities of food would have been provided by the wives.
The wives gave evidence of amounts of K100 and K30 each fortnight from his salary.  I think I am entitled to use those figures as the basisi of the loss incurred by the wives for themselves and for their children by the death of the deceased.  And even though his present term of office may have terminated sometime in 1993 I can still use those figures as a basis for a leader like him.
On the above figures and principles and in accordance with principles applied in other cases I calculate the loss as follows.  I give a slightly higher contingency for the wife Apalgi Elwi as she is younger and has no children.
Loss to the date being for 2 years and 48 weeks for each of the three wives Polo Del, Korai Gena and Apalgi Elwi at K30 each per week plus interest at 4% is K5,093.16 and for each of the three children Yaule, Kua and Bomaigi at K10 each per week plus interest at 4% is K1,697.72.
Future Loss is as follows:
Name	Weekly Loss	Dependency	Multiplier	Total	Counting	Total	
Polo Del 	K30	4 Years	197	K5910	5%	K5023.50	
Yaule Yaule	K10	4 Years	197	K1970	5%	K1871.50	
Kua Yuale	K10	4 Years	197	K1970	5%	K1871.50	
Korai Gena	K30	4 Years	197	K5910	15%	K5023.50	
Bomaigi Yuale	K10	4 Years	197	K1970	5%	K1871.50	
Apalgi Elwi	K30	4 Years	197	K5910	25%	K4100.62	
 
Name	Past Loss	Total	Share Est Claim	Total	
Polo Del	5093.16	10116.66	250	9,866.66	
Yuale Yuale	1697.72	3569.22	100	3,469.22	
Kua Yuale	1697.72	3569.22	100	3,469.22	
Korai Gena	5093.16	10116.66	200	9,916.66	
Bomaigi Yuale	1697.72	3569.22	100	3,469.22	
Apalgi Elwi	5093.16	9193.78	200	8,993.78	
 	 	 	 	K39,184.76	
I order Judgement for K39,184.76.
K9,866.66 is to be paid to Polo Del, K9,916.66 is to be paid to Korai Gena, and K8,993.78 is to be paid to Apalgi Elwi.  The balance of K10,407.66 is to be paid to the Registrar to be invested as to K3,469.22 for each of the three children Yuale, Kua and Bomaigi until they respectively attain the age of 18 years which as to Yaule shall be 26 September 1998 as to Kua shall be 23 June 2005 and as to Bomaigi shall be 25 March 1999.
Lawyer for the Plaintiff:  O’Connor & Hasu
Lawyer for the Defendant:  Young & Williams