N4093

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 252 OF 1999

BETWEEN

PARU GOI
Plaintiff

AND

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Mount Hagen: Makail, J
2008: 16th & 17th June &
2010: 22nd July

NEGLIGENCE - Liability - Personal injury claim - Claim arising from alleged motor vehicle accident - Alleged motor vehicle accident caused by negligence of driver - Denial of motor vehicle insured or uninsured and on public street - Proof of - Evidence of - Lack of - Claim not established on balance of probabilities - Claim dismissed - Motor Vehicles (Third Party Insurance) Act, Ch 295 - Section 54(1).

Cases cited:

Lucy Kongupi -v- Motor Vehicles Insurance (PNG) Trust (1992) N1043
Imambu Alo -v- Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 487
Bepiwan Ambon -v- Motor Vehicles Insurance (PNG) Trust (1992) N1116
Garo Kei -v- Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 195
Martin Kilte -v- Motor Vehicles Insurance (PNG) Trust (1992) N1085
Jack Lundu Yalao -v Motor Vehicle Insurance (PNG) Trust (1995) N1386
 Adevu -v- Motor Vehicle Insurance (PNG) Trust (1994) SC461
Motor Vehicle Insurance (PNG) Trust -v- Nande Waige & 2 Ors (1995) SC478
Kamtai Waine -v- Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 446
Yuye Kulau & Tupo Kankuwa -v- Motor Vehicles Insurance Limited (2008) N3700
Revit Mangoi -v- Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 327
Rot Moip -v- Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 485
Application of Jack Lucas Kuri [1992] PNGLR 448

Counsel:

Mr P Kopunye, for Plaintiff
Ms J Naipet, for Defendant

JUDGMENT

22nd July, 2010

1. MAKAIL, J: In this action, the plaintiff is suing the defendant for damages for personal injuries sustained in an alleged motor vehicle accident along Koskala road near Banz of the Western Highlands Province on 26th January 1996. In her statement of claim, the plaintiff alleged that she is from Warakar village in Banz and married with children. On the said date, around 3:00 pm, she was traveling as a passenger in a motor vehicle bearing registration no: HAC-284, owned and driven by one Bosip Munga Kapal. She alleged that the motor vehicle was not properly maintained, hence was mechanically defective but yet driven by Bosip Munga Kapal resulting in the accident. She also alleged that the driver was negligent because the motor vehicle was overloaded with passengers and when it travelled uphill, encountered difficulty in negotiating the climb causing it to reverse downhill. In fear of being killed, she jumped off. She sustained injuries resulting in the severance of her left hand index finger. As a result, she alleged that she suffered 100% loss of this finger.

2. She claimed general damages for pain and suffering, loss of amenities and economic loss. She claimed economic loss because she is unable to perform work as a mother and subsistence farmer. She also claimed special damages for the costs incurred in obtaining medical treatment. The defendant generally denied the claim by alleging that there was no such motor vehicle accident or does not know if the said motor vehicle was insured with it, or was uninsured and travelling on a public street. Alternatively, if there was an accident involving the said motor vehicle, the plaintiff contributed to her personal injuries when she jumped off the moving motor vehicle, hence liability should be apportioned.

3. As the defendant has denied the claim, the first issue for determination is liability. The Court must inquire whether the defendant as the insurer of the motor vehicle should be held liable for the negligent actions of the driver of the motor vehicle. The plaintiff must also satisfy the Court that if the motor vehicle was uninsured, it was travelling on a public street. This will require an examination of evidence of the parties. The plaintiff gave oral evidence in addition to her affidavit sworn and filed on 07th November 2005 which was tendered without objection and marked exhibit "P2". She was also cross examined by the defendant's counsel. 

4. In addition to her evidence, a witness by the name of Paul Duka Kapil gave oral evidence and also tendered his affidavit sworn on 15th February 2000 and filed on 16th February 2000 which was marked exhibit "P3". Dr Allan Kulunga also gave oral evidence in relation to the injuries of the plaintiff and his affidavit sworn on 25th January 2000 and filed on 28th January 2000 was also tendered and marked exhibit "P1".

5. The plaintiff through her counsel also sought to tender a number of documents at trial. The defendant objected to these documents and the Court upheld the objections and rejected them. These documents were first, an affidavit of Lukas Kundibiat sworn on 10th August 2000 and filed on 11th August 2000. It was rejected because this witness was the police traffic officer who allegedly investigated the alleged accident but was not available for cross-examination. Secondly, an affidavit of Dr James Redcliffe sworn on 27th June 2007 and filed on 2nd July 2007 was rejected because this witness was the doctor who allegedly treated the plaintiff at Kudjip Hospital but was not available for cross-examination. Finally, a Police Traffic Accident Report marked annexure "A" to the affidavit of the plaintiff sworn and filed on 07th November 2005 was rejected because it was hearsay. As for the defendant, it did not file any affidavit or call oral evidence from its witnesses at trial.

6. Briefly, it is the evidence of the plaintiff that she sustained personal injuries in a motor vehicle accident along Koskala road near Banz of the Western Highlands Province on 26th January 1996. On the said date, around 3:00 pm, she was traveling as a passenger in a motor vehicle bearing registration no: HAC-284, owned and driven by one Bosip Munga Kapal. The motor vehicle was negotiating a slippery uphill drive when it started to reverse downhill. Some of the passengers jumped off to help push it uphill. She attempted to disembark from the motor vehicle and placed her left hand on the door of the passengers' side when a passenger by the name of Sent Kapil at the same time swung the door closed. The door crashed her second index finger against the frame of the door of the motor vehicle.

7. She went to Kudjip hospital that same afternoon where she was treated. Her left hand index finger was subsequently severed. As a result, she alleged that she suffered 100% loss of this finger. She incurred K25.00 as cost for the Police Traffic Accident Report, K15.00 as cost for the Medical Report from Kudjip hospital, K90.00 as cost for consultation and reporting by Dr Kulunga, K50.00 for National Court filing fee and finally, K140.00 for legal costs. In addition, she incurred out of pocket expenses for transportation, accommodation and food while in Mt Hagen for medical treatment and pursuing her claim with her lawyers. The out of pocket expenses added up to about K1,000.00. She suffered pain and discomfort as a result of the injury and has been unable to fully perform work as a mother and subsistence farmer following the accident and injury.

8. Paul Duka Kapil's evidence is that, the plaintiff came from his tribe but lived at Koskala village in Banz. He too was a passenger in the motor vehicle that crashed on 26th January 1996. The plaintiff was one of the passengers sitting at the back of the motor vehicle. As they travelled up a small hill, the motor vehicle could not negotiate the uphill climb. At that time, it had rained earlier and the road was wet and slippery. That made it difficult for the motor vehicle to climb.

9. The driver instructed the passengers to get off and assist by pushing the motor vehicle uphill and they did. He opened the door and got out of the motor vehicle. As he swung the door back to close, it struck the plaintiff on her hand as she was standing next to it with one of her hands on it. He heard the plaintiff screamed with pain and then realised that she was injured.

10. Dr Kulunga's evidence is that, he is a registered medical practitioner and proprietor of Kintip Surgery Limited. He has a Bachelor of Medicine and Master of Medicine in Surgery and has been practicing for many years. He examined and gave an assessment of the disabilities of the plaintiff on 21st April 1997. He provided a medical report which stated inter-alia, that the plaintiff suffered 100% loss of the left index finger. Overall, she suffered 15% permanent disability of effective use of the index finger especially in grasping gardening tools and performing other usual labour orientated activities.

11. The law states that he who alleges bears the onus of proving the allegation. In this case, the plaintiff alleged that the defendant should be liable for damages for the injury she sustained in the accident because the motor vehicle was insured with the defendant or if it was uninsured, the defendant should still be liable because the motor vehicle travelled on a public street at the time of the alleged accident. Her counsel pointed to paragraphs 4 and 5 of the statement of claim to show that the material facts setting out these allegations had been sufficiently pleaded for the defendant and the Court to appreciate the basis of the claim against the defendant.

12. On the other hand, the defendant contended that the plaintiff has failed to prove by appropriate evidence if the motor vehicle was insured. It contended that while the plaintiff pleaded at paragraph 4 of the statement of claim that the motor vehicle was insured with it under a third party policy no 01115737 which would have expired on or around 27th August 1996, no evidence has been led by the plaintiff to prove this allegation. It contended that, the proof of insurance is so crucial to the claim because it goes to establish whether the motor vehicle was insured with it in order for it to be liable for damages under the Motor Vehicles (Third Party Insurance) Act, Ch 295 ("MVIT Act"). 

13. Section 54 of the MVIT Act gives a person a right to make a claim against the defendant for damages for death or bodily injuries arising from a motor vehicle accident. The claim must be brought against the defendant and not against the owner or driver of the motor vehicle: see sections 1 and 54(1) of the MVIT Act. Section 54(1) specifically provides for liability of the defendant in three categories where death or bodily injuries have resulted from the use of:

1.	a motor vehicle insured under the MVIT Act,

2.	an uninsured motor vehicle in a public street, or

3.	a motor vehicle on a public street where its identity cannot, after due inquiry and search, be established.

14. It is therefore the law in section 54 of the MVIT Act that, a plaintiff who seeks damages against the defendant arising from a motor vehicle accident must show that the motor vehicle involved in the alleged accident must be insured, or if it was uninsured, must be driven on a public street when it got involved in the accident or its identity could not be established after a due inquiry and search. In Lucy Kongupi -v- Motor Vehicles Insurance (PNG) Trust (1992) N1043, Woods, J in dismissing the action against the defendant said:

"It is necessary to properly establish the vehicle out of which a claim is made. It is necessary to establish whether it is a motor vehicle registered under the Act or a (sic) uninsured or unidentified vehicle. In this case, there is no firm evidence identifying the vehicle and owner and whether it was properly registered and insured. Normally, such details are confirmed by or identifying of the vehicle and then producing a search of the Traffic Registry and often this is confirmed by a road accident report prepared by the police which is the police investigation and it can usually be assumed that the police themselves have searched the registry to ensure that any vehicles involved in accidents are properly registered."

15. In Imambu Alo -v- Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 487, the plaintiff asserted that the motor vehicle was registered and insured with the defendant. No certificate was produced from appropriate authorities. A policeman gave evidence that his compilation of a motor traffic accident report setting out details of registration and insurance of the vehicles were what the driver of the motor vehicle told him following the accident. There was clear conflict of evidence between the driver and the policeman about the particulars of registration and insurance. The Court held that the plaintiff failed to make out a case to show that the motor vehicle was registered and insured with the defendant as alleged in the statement of claim. The Court also held that the fact of registration and insurance required strict proof: see also Bepiwan Ambon -v- Motor Vehicles Insurance (PNG) Trust (1992) N1116.

16. The Court further held that, the absence of evidence of certificate of registration or insurance, and the conflicting evidence between the driver and the policeman left it with no basis of a presumption of insurance. In Garo Kei -v- Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 195, the Court held that a statement of claim must first allege if the vehicle was either registered and insured or uninsured with the defendant and registration and insurance details must then be provided at trial to prove these allegations to establish a claim against the defendant. In Martin Kilte -v- Motor Vehicles Insurance (PNG) Trust (1992) N1085, Woods, J in dismissing the claim against the defendant emphasised the importance of pleading those allegations in this way:

"You must therefore first establish the basis of your claim, namely establish under which of the above three categories your claim comes under…… neither the Plaintiff nor the policeman are able to confirm registration details of the roller and whether it was currently registered and insured or uninsured at the date of accident. All they say is that it was owned by Pangia Constructions Pty Limited. Such should normally be proven by a certificate from the Motor Traffic Registry or from the Motor Vehicles Insurance (PNG) Trust…. there is no admission by the Defendant that they did insure the roller. Therefore, without going into where any negligence lay, the Plaintiff had not established the basis of his claim under Section 54 of the Act."

17. In the present case, without going into the issue of negligence, first, I must be satisfied that the plaintiff has established that her claim fell in one of the categories of cases under section 54(1) of the MVIT Act. In this respect, it is noted and worth repeating that the plaintiff alleged at paragraphs 4 and 5 of the statement of claim that the motor vehicle was insured or in the alternative if it was uninsured, it travelled on a public street and had the accident, hence the defendant should be liable for damages for the injury she sustained in the accident. In relation to her claim that the motor vehicle was insured, she gave the details of the registration number and insurance policy number at paragraph 4 of the statement of claim. 

18. The defendant in its defence said it does not know and cannot admit the allegation whether the motor vehicle was insured with it or if it was uninsured, it was travelling on a public street. In Jack Lundu Yalao -v Motor Vehicle Insurance (PNG) Trust (1995) N1386, Injia, J (as he then was) said this type of pleading by the defendant was not permitted. There, his Honour cited two Supreme Court decisions dealing with this type of pleading to support the view he took in Adevu -v- Motor Vehicle Insurance (PNG) Trust (1994) SC461 and Motor Vehicle Insurance (PNG) Trust -v- Nande Waige & 2 Ors (1995) SC478. His Honour said:

"Because the insured status of the motor vehicle which caused the injury to the plaintiff was known or ought to be known by the Defendant Trust from its own records and accounts required to be kept pursuant to ss. 44, 49 and 53 of the Motor Vehicles (Third Party Insurance) Act, Ch No 295, it was wrong for the defendant to plead in its defence that it did not know of and therefore could not admit the insured status if the subject motor vehicle as pleaded in the Statement of Claim. Such pleading was an inappropriate method of traversing the alleged fact; it did not disclose a reasonable defence; it caused prejudice to the plaintiff and may was well have constituted an abuse of court's process."

19. I distinguish Jack Lundu Yalao's case (supra) from the present case because, first, in that case, the appropriateness of pleadings in the defendant's defence was an issue between the parties. The plaintiff contended it was wrong for the defendant to suggest that it was not in a position and could not confirm that the motor vehicle involved in the alleged motor vehicle accident was the one described in the pleadings of the plaintiff. The Court found that such a pleading was inappropriate as it disclosed no reasonable defence and amounted to an abuse of process because it was extended the defendant should have known or ought to have known the registration and insurance status of the motor vehicle. The Court struck out the defence accordingly. In the present case, no such issue has been raised by the plaintiff or an application to strike out the defence has been filed so I must consider the defence as being in order and proper. 

20. Secondly, in the present case, the trial took place without the defence being struck out, so I must consider it. As the defendant does not admit nor deny the plaintiff's claim that the motor vehicle was insured, or if it was uninsured and travelling on a public street, the onus is on the plaintiff to prove that it was insured or uninsured and travelling on a public street. First, the plaintiff must call evidence to prove that the motor vehicle was insured with the defendant. Evidence from the owner or driver would be relevant and will go a long way to establish registration and insurance of the motor vehicle. 

21. In addition, evidence of the police investigating officer including a road accident report would be relevant and useful. A policeman's evidence recording details of the accident in a road accident report would usually be based on information from the driver and other details of the accident after the policeman had visited the scene and recorded his observations. Usually, the tendering of the road accident report containing details of the status of registration and insurance constitutes proof of insurance: see Martin Kilte's case (supra) and Kamtai Waine -v- Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 446. 

22. In Yuye Kulau & Tupo Kankuwa -v- Motor Vehicles Insurance Limited (2008) N3700, David, J held that the plaintiffs had not established that the motor vehicle allegedly involved in the alleged accident was insured because even though there was a road accident report produced, there was no evidence of the policeman who investigated the alleged accident making enquires either about the registration of the motor vehicle at the Motor Traffic Registry or about the status of insurance with the defendant. His Honour concluded that whilst the observations made by the policeman at the scene of the alleged accident were independent, it was not conclusive evidence of the identity of the particular motor vehicle involved in the alleged accident.

23. In the present case, the defendant contented that the plaintiff has not provided the registration and insurance details of the alleged motor vehicle to prove the allegations it makes against it. I accept this contention because first, there is no evidence of registration and insurance policy produced by the plaintiff for the motor vehicle. The owner and driver Bosip Munga Kapal was not called by the plaintiff to corroborate her evidence that the motor vehicle was registered and insured and was the one described in paragraph 4 of the statement of claim.

24. Secondly, the plaintiff has failed to call the policeman who investigated the accident to corroborate her evidence. As noted above, although she attempted to tender the affidavit of Lukas Kundibiat sworn on 10th August 2000 and filed on 11th August 2000 to verify the existence of the accident involving the motor vehicle on 26th January 1996, that affidavit was rejected because Mr Kundibiat was not present at trial for cross-examination by the defendant's counsel. If the motor vehicle was uninsured, then the plaintiff has failed to adduce evidence from the policeman who compiled the police traffic accident report and the owner or driver of the motor vehicle to establish that there was an accident involving the motor vehicle described in the statement of claim.

25. Thirdly, there is no police traffic accident report before the Court although as stated above, one was annexed as annexure "A" to the affidavit of the plaintiff sworn and filed on 07th November 2005 but was rejected by the Court at trial because it was hearsay, as it was sought to be tendered through the plaintiff who was not its author. I accept that even though the police traffic accident report is in itself hearsay evidence, it is usually relied upon by the Court as an independent and impartial piece of evidence to verify the accident: see Revit Mangoi -v- Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 327, Rot Moip -v- Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 485, Application of Jack Lucas Kuri [1992] PNGLR 448, and Martin Kilte's case (supra).

26. Fourthly, I reject the plaintiff counsel's submission that when the evidence of the plaintiff, Paul Duka Kapil and Dr Kulunga are considered in totality, they sufficiently establish liability against the defendant, in that, they establish that there was a motor vehicle accident on 26th January 1996; the motor vehicle was identified as HAC-284, owned by Bosip Kapal and driven by Bosip Kapal; location of the accident was at a point, uphill at, or along the road near Koskala village, Warakar in Banz and the plaintiff was a passenger in that motor vehicle that was overloaded.

27. I reject this submission because it fails to take into account that each witness's evidence must be evaluated on its own to determine its probative value before the Court may rely upon it to make appropriate findings of fact. If that is done, the evidence of Dr Kulunga in relation to the occurrence of the alleged accident is hearsay. It is hearsay because he was not an eyewitness of the alleged accident. I reject his evidence in relation to the occurrence of the accident. As for the evidence of Paul Duka Kapil, it is unreliable because first, he is not the driver of the motor vehicle who may be in a position to verify if the motor vehicle was either insured or uninsured. 

28. Secondly, it is contradictory because in his oral evidence and cross-examination, he said he saw the plaintiff sustain the injury when she was disembarking from the motor vehicle and in his affidavit, he said the plaintiff sustained the injury when she was standing on the ground and assisting others to push the motor vehicle uphill. Further, in his oral evidence and affidavit, he said he was an offside passenger in the motor vehicle but in cross-examination, he said he sat at the back of the motor vehicle and jumped off at the time a passenger in the passenger's seat opened the door and jumped out. He said when this passenger closed the door, it slammed into the hand of the plaintiff and injured her. These contradictions create doubts in my mind whether this witness is a reliable witness. For these reasons, I am satisfied that he is an unreliable witness and reject his evidence.

29. In the end, all there is before the Court is the plaintiff's uncorroborated evidence that there was an accident on 26th January 1996 involving the motor vehicle described by the plaintiff. In my view, it is insufficient to establish a claim against the defendant under section 54(1) of the MVIT Act. For the foregoing reasons, I dismiss the action with costs to the defendant to be taxed if not agreed. The time for entry of these orders shall be abridged to the date of settlement by the Registrar to take place forthwith.

Judgment and orders accordingly.

________________________________
Kopunye Lawyers: Lawyers for the Plaintiff
Mirupasi Lawyers: Lawyers for the Defendant