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Gelua v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 11; N1193 (13 December 1993)

Unreported National Court Decisions

N1193

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 177 OF 1991
MOKI GELUA
v
MOTOR VEHICLES INSURANCE (PNG) TRUST>

Mount Hagen

Woods J
2 November 1993
13 December 1993

NEGLIGENCE - Motor Vehicle Accident - Liability - Plaintiff on back of open back utility - identification of the vehicle - onus not satisfied - claim dismissed.

Cases Cited:

The following cases are cited in the judgement:

Alo v MVIT [1992] Unreported N1122

Kilte v MVIT [1992] Unreported N1085

Counsel:

D O’Connor for the Plaintiff

A Kandakasi for the Defendant

13 December 1993

WOODS J: The Plaintiff is claiming damages for injuries he received when he was involved in a motor vehicle accident on the 21st January 1989 on the Okuk Highway near Chuave in the Simbu Province. The Plaintiff claims that he was on a motor vehicle registered number AFI 511 driven by Sine Gelua which went out of control due to the negligent driving of Sine Gelua and overturned and caused the plaintiff injuries to his right hand and general abrasions to the body.

The Plaintiff claims that the subject motor vehicle was a duly registered motor vehicle which was properly insured under the Motor Vehicles (Third Party Insurance) Act at the time of the accident and thus this claim is being brought against the Defendant.

The Defendant denies that the vehicle was registered and insured at the time of the accident and further denies that The Plaintiff was injured through the negligence of the driver.

The Plaintiff gave evidence that he got onto the vehicle at Madang, said it was a PMV and that the accident happened near Chuave on the Highway when criminals blocked the road and in trying to avoid the criminals the vehicle overturned. He says he was thrown out of the vehicle and rendered unconscious and part of his hand was caught under the vehicle and crushed. He says that the vehicle was owned and driven by one Sine Gelua although he does not say who Sine Gelua is nor where he came from. However having said that the vehicle was owned by Sine Gelua and then that it was a PMV and he paid a fare to ride on it the Statement of claim gives a private registration number for the vehicle. The plaintiff then said he was initially admitted to Chuave Hospital although that was only for one night, but then he says that he went a week later to Kundiawa Hospital where he stayed for a month.

A witness Mokale Gelua says that he got onto the vehicle at Ramu and when the vehicle got to Chuave there was an accident and he was thrown out and rendered unconscious. He agrees that the vehicle was a PMV as he paid for the ride however he is unable to help with any more details to identify the vehicle.

A witness Apa Gelua says he got onto the vehicle at Ramu and at Chuave the vehicle tipped over. He said that the vehicle was speeding. He is unable to help with the identification of the vehicle.

There was a police report accepted into evidence although it was not tendered through the constable who had prepared it but by a senior officer in the traffic section. Therefore the Report can only be regarded as hearsay and there is no evidence that the policeman who made it actually saw the vehicle. One is only left with the conclusion that he entered what he was told of the identity of the vehicle.

The problem is that there is no certainty from the witnesses as to the identification of the vehicle and therefore as to whether there was the accident as described. The Statement of Claim says it was a vehicle with an ordinary private registration yet the plaintiff and another person identify it as a PMV. If it was privately owned then the passengers must have known the vehicle yet the witnesses cannot identify the make. Where is the owner and or driver to assist with the identification, the witnesses must know where he can be found. The Defendant clearly denies all knowledge of the registration and insurance in its Defence so the Plaintiff was put on notice that the identification and registration of the vehicle was an issue.

Further the witnesses give different stories as to the circumstances of the accident. The Plaintiff talks about some criminals and a roadblock, yet the other 2 witnesses say nothing about any criminals but only talk about speeding. So are they talking about the same incident.

There is an onus on the Plaintiff to prove the identity of the vehicle concerned. There is no identification of any vehicle by any of the witnesses and whilst the police accident report refers to a vehicle there is sufficient confusion as to what sort of vehicle it was to cast doubts on the police accident report details and anyway there is no evidence as to how the Police Officer obtained the details he included in his report. So whilst the details in a police accident report may in some cases be sufficient corroboration here there is nothing to corroborate so the report cannot be accepted as the evidence of the identification of the vehicle, it is only hearsay. The principles involved have been adequately covered in the cases of Kilte v MVIT [1992] Unreported N1085 and Alo v MVIT [1992] Unreported N1122.

The Plaintiff has not satisfied the onus of establishing the vehicle concerned and whether it was insured or not therefore there can be no claim under the Motor Vehicles (Third Party Insurance) Act Ch. 295 Section 54.

The claim is therefore dismissed and I order Judgement for the Defendant.

Lawyer for the Plaintiff: DL O’Connor

Lawyer for the Defendant: Young & Williams