Unreported National Court Decisions
N1442
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 798 OF 1994
KIA TEMAI
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
Waigani
Salika J
July 1996
MOTOR VEHICLE ACCIDENT - Burst tyre - personal injuries - liability to be proved - onus on plaintiff.
Cases Cited
June Bonnie v Motor Vehicles Insurance (PNG) Trust (1994) PNGLR 393
Counsel:
Mr Aluwe for the Plaintiff
Ms R Thompson for the Defendant
JUDGMENT
July 1996
SALIKA J:  This matter was in before the court by way of a Writ of Summons issued by the plaintiff against the defendant.  The Plaintiff claims damages pursuant to the Motor Vehicle (Third Party Insurance) Act Chapter 295 and interests pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act chapter 52.
The plaintiff gave evidence that she was involved in a motor vehicle accident.  She said she was travelling on a Mitsubishi open back utility.  She sat on top of a bag of kaukau in the tray of the vehicle.  She gave evidence that one of the tyres of the vehicle had a puncture and the vehicle overturned.  However in cross examination she said when the tyre punctured the vehicle went to the side of the road but did not capsize.  She said after the accident she was taken to the Goroka hospital and was admitted there for 8 days.  A medical report was prepared by a doctor who described her injuries as:
“She was seen to be in pain but otherwise stable.  Examination  showed right ankle to be completed distorted with increased mobility, swelling tenderness and crepitus, and abrasions (minor) on the lateral aspect of the right foot.  The diagnosis of a Pott’s Fracture of the right ankle was confirmed with the X-ray (X-ray No: E7478) - showing whole ankle dislocation with fracture of the medial malleolus.
Treatment involved:
a)       Closed reduction and plaster cast of that ankle (Right) under general anaesthesia (Ketamine).
b)       Analgesics for pain - Pethidine.
c)       Rest for right lower limb closed reduction of injury (fracture dislocation right ankle) was satisfactory as per X-ray No E7583, and was discharged after eight days.
Her progress to date has been satisfactory after five months with clinical and radiological (X-ray F1559) union and stability of the ankle, and no permanent disability exists - functionally.  However physically the injury is estimated to be of a loss of 5%.  She will lead a normal life otherwise.”
Another witness Temai Peter gave evidence in support of the plaintiffs case saying that both the plaintiff and himself were travelling together in the same vehicle from Asaro when it overturned and capsized.  He said when it overturned he jumped out of the vehicle.  He gave evidence that on the 1st February 1994 he went to the police station to pick up a report of the accident done by the police.
That was the only oral evidence called.  The medical report was tendered into evidence by consent while the accident report was not accepted into evidence.
The defendant did not call any evidence.
I find the following facts to have been established by evidence:
(a)      There was a motor vehicle accident in which the plaintiff was travelling in.
(b)      The plaintiff was a passenger with other people at the tray of the vehicle.
(c)      The plaintiff was sitting on top of a kaukau bag close to the rear of the vehicle while the vehicle was moving.
(d)      One of the tyres of the vehicle was punctured and as a result the vehicle went to the side of the road and overturned.
(e)      The plaintiff was thrown out of the vehicle and as a result sustained injuries for which she was admitted to the hospital for 8 days.
(f)      She received treatment for her injuries.
I agree with the submission by the defendant that the plaintiff bears the onus of proof in establishing a claim against the defendant.  In order to be successful under s. 54 of the Motor Vehicles (Third Party Insurance) Act Chapter 295, the plaintiff must establish that her injuries were caused by the use of a motor vehicle which was insured under the Act and that the injuries were caused by the negligence of either the driver or the owner of the vehicle, whom the defendant is liable to indemnify.
The plaintiff in her statement of claim alleged:
(a)      That she was a passenger on a Mitsubishi Utility, Registration Number AFG 969.
(b)      That one of the tyres of the vehicle suddenly burst forcing the vehicle to swerve to one side and forcing her to fall off and injuring herself.
(c)      That Nick Sapit was the owner and driver of the vehicle at the material time.
(d)      That the vehicle was at all material time registered under the Act.
(e)      That the accident occurred as a result of negligent driving by Nick Sapit, particulars of which are:
(i)       Driving with excessive speed in the circumstances;
(ii)      Driving without due check and maintenance of the tyres;
(iii)     Driving in a dangerous manner;
(iv)     Failed to take action to avoid forcing the Plaintiff off the Utility;
(v)      Driving without due care and attention;
(vi)     Failed to keep the Toyota Land Cruiser under proper management and control.
In relation to the first allegation ((a) above) she has established by evidence that she was a passenger on a Mitsubishi utility but she nor her witness established the registration number of the vehicle.  In relation to (b) I am satisfied she had established that allegation.  There is no evidence in relation to (c).  There is likewise no evidence in relation to (d).  In relation to (e) there is no evidence  of negligent driving.  The only evidence of the cause of the accident is an answer by the plaintiff to the following question in  examination in chief:
“What caused the accident? We had a punctured tyre and the vehicle overturned.”
There is no evidence of (e) (i ) (ii), (iii), (iv) (v) and (vi).  There is no evidence of excessive speeding.  There is no evidence of driving without due check and maintenance of the tyres.  There is no evidence of why the tyre burst.  The fact that the tyre burst is not in my view evidence that the owner of the driver drove without checking and maintaining the vehicle tyres.  Furthermore there is no evidence of dangerous driving.  There is no evidence that the driver failed to take action to avoid forcing the plaintiff off the vehicle.
There is also no evidence that the driver drove without due care and attention.  There is also no evidence that the driver failed to keep the vehicle under proper management and control.
I refer to the case of June Bonnie v Motor Vehicles Insurance (PNG) Trust (1994) PNGLR 393 and I would distinguish the facts from this case.  In that case the victim was in a PMV.  In this case the victim was on an open back utility sitting on a kaukau bag.
Once again I agree with the defendant submissions that at best all the court can surmise is that while driving along the road one of the tyres was punctured which caused the vehicle to run off the road and overturn.  This however cannot be evidence of negligence of the driver or the owner.  The evidence simply describes an accident which could not have been avoided by any conduct of the driver or the owner.  I am of the view that the plaintiff has failed to discharge her onus of proof.  I dismiss her claim.
There is one matter that I wish to make some remarks on.   It is becoming far too common that lawyer are not preparing their clients cases properly in these type of cases.  Authors of Medical Reports, Police Accident reports, mechanical reports and some vital witnesses generally are not informed or summoned to appear in court to give evidence.  It is my view that a lawyer is under an obligation to inform and where necessary summon witnesses to appear in court to give evidence on behalf of his client.  In this case for example the doctor was not summoned to give evidence. He had not even been asked to give evidence.  The report was however tendered into evidence by consent of the defence counsel.  Similarly the police officer who authored the accident report was not summoned to give evidence.  The plaintiff’s counsel had sought to tender the report through a witness who had paid a fee and was given it.  The tender of the accident report was objected to by the defence counsel on the basis that the witness was not the author of the document.  The defence counsel had also objected to its tender on the basis that the witness would not be able to answer questions in relation to the report. I refused to accept the accident report into evidence.  In my view lawyers who fail to properly prepare their clients cases are being plain negligent in their duties and in my view are loosing the cases for their clients, cases they otherwise might have won had they been properly prepared and been diligent.  In my view in such cases the client should be encouraged to sue their lawyers, for damages for professional negligence.
Lawyer for the Plaintiff: Joe Wal Lawyers
Lawyer for the Defendant: Young & Williams