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Dup v Motor Vehicles Insurance (PNG) Trust [1995] PGNC 54; N1403 (21 December 1995)

Unreported National Court Decisions

N1403

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 674 OF 1994
NENG DUP - Plaintiff
V
MOTOR VEHICLES INSURANCE (PNG) TRUST - Defendant

Mount Hagen

Woods J
18 October 1995
21 December 1995

NEGLIGENCE - motor vehicle accident - pedestrian - liability - vehicle registered or unregistered - pleadings - evidence contrary to pleadings.

DAMAGES - dependency claim.

Cases Cited:

Dare v Pulham[1982] 148 CLR 658

Kilte v MVIT [1992] Unreported N1085

Kei v MVIT [1992] PNGLR 195

Kupil & Anor v The State [1983] PNGLR 350

Marcus v MVIT[1995] Unreported N1351

MVIT v Pupune[1993] PNGLR 370

Stephens v MVIT [1994] Unreported N1210

Counsel:

S Norum for the Plaintiff

A Kandakasi for the Defendant

20 December 1995

WOODS J: The Plaintiff is the widow of one Dup Oii who was killed when he was struck by a motor vehicle on the Highlands Highway near Kudjuip in the Western Highlands Province on the 23rd May 1992. The Plaintiff is claiming on a loss of dependency on behalf of herself and her children and another wife and the parents of the deceased.

In the Statement of Claim it is claimed that on that day the deceased was attempting to cross the Highway near the Kindeng Junction when he was a struck by a motor vehicle registered number ABC 331 driven by a Jeffery Lea.

In the Statement of Claim it is claimed that the subject motor vehicle was uninsured and that the death of the deceased was caused by the negligent driving of the driver Jeffery Lea.

A number of witnesses gave evidence of what happened when the deceased was struck. It was apparently in the evening and it was getting dark and a number of people including the deceased had been attending some election rally near the Nazarene Bible College, and they were walking home along the Highway. As they were walking along beside the Highway a vehicle came along towards them with only one headlight and some of the people jumped off the road to miss being hit but the deceased was struck by the vehicle. The vehicle that struck the deceased then continued away without stopping. The vehicle was described as a small vehicle. The witnesses said the deceased and they were walking off the bitumen at the side of the highway.

A witness John Kumba gave evidence of driving along the highway and coming to the scene of the accident and seeing the deceased body on the side of the road. He stated that he knew the deceased who used to work for him. He was told the subject vehicle had headed on towards Hagen so he gave chase to try and find the vehicle. He went to the police station. Later with the police they found a vehicle a Toyota sedan registration number ABC 331 which had blood and skin on the front. The vehicle was taken to the police station. The witness said he checked the Insurance number and it was No 00853202 which he had noted down in his notebook at the time. The witness noted that the registration of the vehicle was current. The witness said that he got confirmation of the state of the insurance and the insurance number from the office of the Motor Vehicles Insurance Trust in Mount Hagen. Then from information received they found a person who said he was the owner, a Jeffery Lea. Later an amount of compensation was paid to the line of the deceased.

The above is the only evidence of the identification of the vehicle that was alleged to have struck and killed the deceased. Is this sufficient identification. Much of the tracing of the vehicle depends on hearsay evidence. We only think that the vehicle found some time later in Mount Hagen with blood on the front was the subject vehicle on the basis of admissions alleged to have been made by the driver to a witness and the story of some compensation being paid by that driver. However there has been a vehicle identified with a registration number and an insurance number. The defendant has brought no evidence to dispute the identity of this vehicle. It has not disputed that there is a vehicle a Toyota sedan with those registration and insurance numbers.

The Defendant would have access to records to dispute that a vehicle registration number ABC 331 had the given insurance number which was current at that time and has not disputed that. So on the balance of probabilities I must accept that there was such a vehicle with that registration and which was currently insured at that time. And based on evidence of some investigation and information received that vehicle was accepted to have been the vehicle that struck the deceased. Again the Defendant has not brought any evidence to dispute that a Jeffery Lea was the owner of the vehicle, so if a witness states that that person accepted liability and paid some compensation then on the balance of probabilities can I accept it in the absence of any alternate scenario of involvement. There are witnesses who describe the deceased being struck by a vehicle and the court has a witness who apparently employed the deceased giving evidence of his investigations which have no inconsistencies and which are not really challenged in any material detail. I find in the circumstances that the death of the deceased happened as given.

However it is submitted that the story as given to the court is different to the claim as pleaded in the Statement of Claim. First the Statement of Claim states that the deceased was crossing the Highway. And then the Statement of Claim claims that the vehicle was uninsured. Yet the evidence before the court is to the contrary.

In the case MVIT v Pupune [1993] PNGLR 370 it was stated:

“It is well established that pleadings and particulars have the following functions:

(a) They furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it.

(b) They define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial.

(c) They give a defendant an understanding of a plaintiff’s claim in aid of the defendant’s right to make a payment into court.”

That case referred to the statement in Dare v Pulham [1982] 148 CLR 658, “the relief which may be granted to a party must be founded on the pleadings”.

It has been emphasised in a number of cases that a Plaintiff must put himself into one of the relevant three subsections of the Motor Vehicles (Third Party Insurance) Act Section 54. For example in Stephens v MVIT [1994] Unreported N1210 the Plaintiff pleaded both insured or uninsured and the evidence was that the Plaintiff had thought they had found the relevant vehicle. The court ruled that the Plaintiff had done as much as could be expected. He searched and found a highly likely vehicle which the court found was not necessarily the relevant vehicle. However the Plaintiff did not fail on his pleadings. In Marcus v MVIT [1995] Unreported N1351 the court suggested that the fact that the Plaintiff may not have pleaded the correct category initially does not necessarily defeat the claim. In Kei v MVIT [1992] PNGLR 195 the Plaintiff really in effect failed to identify the vehicle. In Kilte v MVIT [1992] Unreported N1085 there was no identification of the ownership of the alleged guilty vehicle and also it was a claim by the driver of the other vehicle so there was a greater responsibility on the Plaintiff. In this case before me now the Plaintiff has pleaded that the vehicle was uninsured, however the evidence has suggested that the vehicle was properly insured and there is evidence of the finding of a vehicle whose owner and driver admitted liability and that that vehicle was properly registered and insured.

I am satisfied that a vehicle struck the deceased, I am satisfied that following inquiries and from information obtained the relevant vehicle was found and identified. Whilst there may have been some fault in the pleadings I do not think that in the circumstances of this case the Plaintiff should fail in what appears quite clearly to be a proper claim. However the principles as enunciated in Pupune’ case above on the purpose of pleadings cannot be ignored and perhaps a Plaintiff who pleads the wrong case and thus of course forces a Defendant to go to trial may incur a sanction of costs.

I am satisfied that there is a valid claim here against the Motor Vehicles Insurance (PNG) Trust.

There is still a matter of contributory negligence to be considered. The witnesses say that he and the deceased were walking along the Highway just after dark when the vehicle came towards them. There is an allegation of only having one headlight and of not driving in a proper manner however that is a bit vague. There was no examination of the vehicle later to confirm a fault in the headlights. The witnesses all say that they and others were easily able to avoid the vehicle and no-one can say why the deceased did not take steps to get off the road. This is vague area and I must accept that there may have been some contributory negligence by the deceased which I will assess at 30 percent.

ON DAMAGES

This is a dependency claim on behalf of the two wives of the deceased and 4 children and 2 aged parents. The deceased was the only breadwinner for the family and was aged about 28 years at his death in May 1992. There is evidence that the deceased was employed at the time by one John Kumba who used to have a tradestore business and a truck and the deceased drove for him. The evidence from John Kumba is that he no longer has that business so it would appear that the employment the deceased had was or would have been shortlived. So it is not as though the deceased had a permanent employment, just that he was able to get some employment. John Kumba said that he paid the deceased K350 a fortnight, however there are no wages books or employment records or employer tax returns to show this or to confirm how much the salary was before or after tax. He said that he paid the deceased in cash. The widow of the deceased and the mother of the 4 children said that the deceased used to give her K70 for herself and the family. There are 4 children of the marriage with the Plaintiff.

Lewa girl now aged about 12 years.

Rosemary a girl now aged about 10 years.

Peter a boy now aged about 7 years.

Angela a girl now aged about 8 years.

The Plaintiff is now aged about 29 years, and Maria Kut the second wife is about 27 years. The parents Oii Nepi the father and Dan Nepi the mother are aged about 50 years and they said that the deceased use to give them about K20 to K30.

I am satisfied on the dependency of the Plaintiff and her 4 children. There is no real evidence of the marriage with the second wife or her dependency, she did not give evidence and there were apparently no children from that marriage. So I cannot accept her dependency. I accept the dependency of the parents.

In view of the lack of records of the employment as I have already noted and that it was not a permanent employment I cannot accept the loss of permanent employment at K350 per fortnight. All the court can find is that he was able to find some general employment and so from a permanent dependency basis I can assess on the basis of about K150 per fortnight or K75 a week. This could average out at K20 per week to the wife and K5 a week for the benefit of each of the children and the same for the parents.

For past loss from the date of death to the date of judgment this would with interest be K4,252.81 for the Plaintiff and K1,064.20 for each of the children and for each parent.

Future loss calculates as follows:

There is evidence of some customary payment of K3,000 and some pigs to the relatives of the deceased. It was stated in evidence that that payment went to the line of the deceased and not directly to the widow. However I adopt what was said by Bredmeyer J in the case Kupil & Anor v The State [1983] PNGLR 350 on what to do with the amount of the customary compensation and I deduct the cash amount of K3,000 paid to the relatives of the deceased from the amount due to the Plaintiff.

I order Judgement in the sum of K23,091.10.