N6923

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 119 OF 2004

BETWEEN:
JOHN TUMAN 
Plaintiff 

V

MOTOR VEHICLES INSURANCE LTD
Defendant

Kundiawa:  Liosi AJ
                                         2016:  18th May
                                                2017: 25th July & 27th September 
				
PRACTICE & PROCEDURE – Motor vehicle insurance claim – Liability – Driver failing to stop after been threatened with a gun – Was the driver negligent? – Principles discussed – Liability of Motor Vehicle Insurance Ltd – S.54(1)of Motor Vehicle Insurance Trust Act discussed – Defendant failing to file any evidence in rebuttal – Effect of.  

INSURANCE – third party liability insurance – compulsory motor vehicle insurance legislation – whether claim for damage in respect of bodily injury to a person arose out of the use of a motor vehicle – whether motor vehicle insured – onus of proof – standard of proof – Motor Vehicles (Third Party Insurance) Act 1974, Section 54. 

DAMAGES – measure of – pain suffering and loss of amenities – Economic loss – Assessment - Interest on Judgment debt. 

Cases cited:
Papua New Guinea Cases

Moses v. Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 63
Kumbe v. Motor Vehicles Insurance Ltd [2005] PGNC 110; N2860 
Baikisa v. J & Z Trading Ltd [2016] N6181
Steven Kirino & others v. The State [1998] PNGLR 351 
Koko Kopele v. Motor Vehicle Insurance Ltd [1983] PNGLR 223 N447
Peter Wanis v. Fred Sheekiot & The State [1995] N1350
Buna v. The State [2004] N2696
Moini v. The State [1978] PNGLR 184
Robert Younger Kerr [1979] PNGLR 251
Costello v. Talair [1985] PNGLR 65
Kawage v. MVIL (2016) PGNC159; N6351

Overseas Cases
North Shore Transport Company Ltd v. Oram [1945] NZLR 552
Pickett –v- British Rail Engineering Ltd (1978) 3 WLR 955
The Insurance Commissioner v. Joyce [1948] HCA 17; [1948] 77 C.L. R. 39 at 55

Counsel: 

D K Piam, for the Plaintiff 
K Peri, for the Defendant

RULING
27th September, 2017 
1.        LIOSI AJ:    BACKGROUND:  On Monday 6th January 2003, at about 3 pm the plaintiff was a passenger of a Toyota Coaster bus registration number P.715W owned by Mokal Koi, was driven by Plak Koi and had an insurance policy number 2263380 which was current at that time. The bus was travelling from Kerowagi towards Minj along the Okuk Highway in Jiwaka Province. At a section of the said road whilst allegedly being held up by the criminals the driver lost control of the vehicle and as a result the vehicle ran off the road and crashed thus causing injuries to a number of passengers including the plaintiff. 
       Plaintiff’s claim 
2.   The plaintiff claims that the accident was caused by the negligent driving of Plak Koi, the driver of the Toyota Coaster Bus to which the defendant is liable as insurer pursuant to the Motor Vehicles (Third Party Insurance) Act. As a result of the injuries, the plaintiff was admitted to Kudjip Hospital and later to Mount Hagen General Hospital for further treatment. Further as a result of the injuries the plaintiff has permanent disabilities. The major disability is the use of the neck where he has between 30% and 20% loss of functions of his breathing (due to injury and pains in the chest). 
       Defendant’s defence 
3.   The defendant filed its defence generally denying the claim. 
       Issues 
4.   There are 3 main issues for consideration in this case. 
a.   Did the plaintiff meet the requirements of S.54 (1) of Motor Vehicle 
    (Third-party) Act? And if yes, was the motor vehicle insured with Motor   
    Vehicle Insurance Limited.  
       b.   The second issue deals with the tort of negligence. That is whether the accident was caused by the negligence of the driver, Mr. Plak Koi. The plaintiff says the driver was negligent. The defendant denies that;
c.	The third issue relates to assessment of damages that is if the driver is found guilty of negligence. 
      
Applicable Laws 

5.   To claim damages against the Motor Vehicle Insurance trust for injuries received in a motor vehicle accident, it is necessary to prove three things. First, there must be an accident. Then there must be a vehicle properly identified or, if not so identified, proper search and enquiry should be made. Then there must be injuries or loss of life because of negligence: Moses v. Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 63.
      
 Liability 
6.   To establish liability the plaintiff needs to satisfy the five basic elements of the tort of negligence: 
•	Firstly, the driver owed a duty of care to the plaintiff; 
•	Secondly, the driver breached that duty, i.e. was negligent; 
•	Thirdly, the driver’s negligent conduct caused injury to the plaintiff 
•	Fourthly, the plaintiff’s injuries were not too remotely connected to the driver’s conduct; and 
•	 Fifthly, the plaintiff has not contributed to own injuries. Kumbe v. Motor Vehicles   Insurance Ltd [2005] PGNC 110; N2860 Cannings J followed in Baikisa v. J & Z Trading Ltd [2016] N6181, Cannings J. 
  Plaintiff’s evidence 
 Outline 
7.    Mr. Piam for the plaintiff tendered five affidavits and called deponents of    
four of them to also give oral evidence and were all cross-examined. 
The affidavits 
8.     Column 1 of below table gives the exhibit number, column 2 describes the deponent and date of the affidavit and column 3 summarises the contents of the affidavit. 
Table 1: Summary of Affidavits 
Exhibit No.	Description and Date  	Content 	
“A” 	Affidavit of Dr. Jacob Painui, 11.03.09	He is a general and Orthopaedic Surgeon based in Mount Hagen General Hospital and his qualifications are MBBS, Masters in Medicine & Surgery and Diploma in Orthopaedic Surgery. On 15th January 2003, he reviewed the patient John Tuman at the Mount Hagen General Hospital and his findings were stated in the report he did which was annexed to his affidavit. The medical report referred to above is dated 20th April 2006. In that report he says he reviewed John Tuman on 15th March 2006. On examination, a scar was seen on the right side of his neck. Turning the neck to the right was painful. Flexion and extension movements were good but pain was felt at extremes of these movements. Lateral flexion to the right was restricted and slightly painful. Lateral flexion to the left was good but painful at its extreme. Rotation to the right was painful but rotation to the left was not painful. Chest movements were good and no abnormalities were noted. He concluded that the patient John Tuman has recovered from the chest injury with normal physical findings on examination. Neck movements were painful and restricted to some extent on the right. He awarded a 20% loss of the effective use of the neck and a 5% loss of the effective use of his chest.	
“B” 	Affidavit of Sergeant James Dat, 
14.04.15	 He is a Police Sergeant based at Kerowagi Police Station. That on Monday 6th January 2003, there was a Motor Vehicle Accident which occurred on the road from Kerowagi towards Minj in which he was the investigating officer. He conducted the investigation after it was reported. According to the registration papers of the bus the owner was Mokal Koi and the bus was bearing registration number P.715W and had an insurance policy number 2263380. The driver of the bus was Plak Koi. He annexes two accident reports which contain the same information in regards to the vehicle, registration number, driver, ownership and insurance policy number but the one done on 10th January 2003 contains  no names of injured passengers and the one done on 23rd April 2003 has John Tuman’s name on it as the injured passenger. He 
states at paragraph 4 of his affidavit that his investigations revealed that the driver of the bus was held up by rascals and instead of stopping the bus he accelerated on and lost control. He said the driver could have avoided going off the road by simply stopping. In his report he stated that no passengers were injured and the vehicle was only excessively damaged. In cross-examination he said he is based in Kerowagi Police Station for about 28 years and has conducted many road accident investigations and reports. For the case at hand, he arrived at the scene of the accident a day later. He did two reports. One was the initial report done on 10th January 2003 (“first report”) and the second one was done on 23rd April 2003 (“second report”). The first report was done after the accident. There was no passenger or any injured person around as everyone had left the scene. The second supplementary report was done after John Tuman came back to the police station after medication and asked for one and he did the second report and included John Tuman’s name as the injured passenger. It is normal practice for supplementary accident reports to be done in the manner that he did and in such circumstances. The reports were properly forwarded to the Directorate of Traffic at Konedobu. He said he spoke to the driver and the driver told him that there were many passengers in the bus. He was not aware of the names of the passengers simply because he did not know them. No one reviewed the accident report because he was the only superior officer, the officer in charge for traffic in Kerowagi so he sent the reports to Konedobu. He said as there were no errors or faults in the two reports so they were never sent back. He established that both reports were the official reports. 	
“C” 	Affidavit of John Tuman, 21.09.08	He is the plaintiff in the proceedings and comes from Kuia Village, Mt. Hagen. He was a subsistence farmer earning K50.00 weekly. On 6th January 2003, he was a passenger on a Toyota Coaster bus registration number P715W owned by Mokal Koi and driven by Plak Koi. At Barawagi the driver was threatened with a gun, panicked and lost control of the bus resulting in the bus running off the road and overturning. He sustained injuries to his neck, cut by a glass and bumped his chest on the seat in front of him. He was taken to Kudjip Hospital and was initially treated and was later released. He received further treatment at Mount Hagen General Hospital and went for medical reviews. He annexes a copy of the clinical book as annexure “E” which confirms blunt chest injury and the right neck cut/injury. As a result of the injuries, he has difficulties in the effective use of his chest and lungs. When travelling some distances, he suffers from shortness of breath and feels pain whenever he turns his neck around. Due to the accident, he is unable to fully engage in farming and income earning activities and as such suffers economic loss in the sum of K50.00 per week. He incurred out of pocket expenses in the sum of K1050.00. These evidences went in without any objections except the copy of the Medical Report of Dr. Sam Yockopua. 	
“D” 	Affidavit of John Kundi, 
21.09.08	He was one of the passengers in the Toyota Coaster 25 seater Public Motor Vehicle bus registration number P.715W which was travelling from Lae to Mount Hagen with John Tuman the plaintiff and other passengers. The driver of the bus lost control of the bus and as a result, the bus overturned. The plaintiff bumped the seats and was trying to jump out of the window when the broken glass cut his neck. 	
“E” 	Affidavit of Dr. John Mckup, 11.03.09	His affidavit was admitted without objections and established that; He is a private Medical Practitioner based at the Family Medical Centre Limited in Mount Hagen. He examined John Tuman on 20th May 2005 and produced a report which he annexed as annexure “A” to his affidavit. In that report dated 20th May 2005, the findings related to those of his neck and chest. In his neck, there is a scar on the right side with gross restriction to neck movements. On the chest, he found that it is tender to compression as well as reduced air entry in the lungs. No evidence of fractured ribs, other systems within normal limits. He concludes that this chap with neck/chest injuries still has deficits to his head/neck and chest wall functions. He was awarded for loss of neck function at thirty percent (30%), chest wall loss at twenty percent (20%). Also it states disability will be stable. The report states that in future analgesics and active physio may help. 	
         
  John Tuman Oral Evidence and cross-examination
 9.      The plaintiff John Tuman adopted his affidavit in examination in chief.  He stated that he was on his way from Popondetta together with John Kundi and his wife and his son. At Voco point in Lae, they got onto the Public Motor Vehicle bus and headed straight to Hagen. He sat at the left hand side behind the crew. John Kundi and his family (wife and son) were sitting in the middle. When they came to Kundiawa, two passengers got off. Then two male passengers jumped on. Those two were in fact rascals, one carrying a knife and the other carrying a pistol. As they proceeded past the Barawagi Corrective Institution Services and up a mountain, the rascals stood up and the one carrying the pistol pointed it at the driver and tangled his neck with his arm. The rascal told the driver to stop the bus but the driver instead accelerated on. All the passengers were also shouting for the driver to stop but he didn’t stop. He panicked and drove the bus to the hill where it overturned and laid sideways. He was thrown out through the window and got a cut in his neck and chest. He was picked up by a coffee truck and transported to Kudjip Nazarene Hospital in Jiwaka Province, where he was treated (cut to the neck was stitched) and given medication. John Kundi and his wife sustained minor internal injuries while their son sustained a cut on his cheek. He says that he went to see Sergeant James Dat at Kerowagi Police Station after some months for a Police Accident Report. 

John Kundi – Oral Evidence and cross-examination

10.      The witness John Kundi adopted his affidavit in examination in chief. John Kundi established the following; His wife, his son, John Tuman and himself came from Popondetta to Lae. At Voco Point they boarded a PMV for Hagen. John Tuman is his tribesman and they travelled together at that time. When they came to Kundiawa, two passengers got off. Then two male passengers jumped on. Those two were in fact rascals, one was carrying a knife and the other was carrying a pistol. As they proceeded past the Barawagi CIS institution and up a mountain, the rascals stood up and the one carrying the pistol pointed it at the driver and tangled his neck back with his arm. The rascals told the driver to stop the bus but the driver instead accelerated on. All the passengers were also shouting for the driver to stop but he didn’t. He panicked and drove the bus to the hill where it over turned and laid sideways. John Tuman was thrown out through the window and got a cut on his neck and chest. He was helped by a coffee truck to Kudjip Nazarene Hospital in Jiwaka Province. His wife and himself sustained minor injuries while their son sustained a cut on his cheek. He said he did not see a lawyer to make a claim against Motor Vehicle Insurance Limited because he went back to Popondetta. He stated that no Policemen came to interview him. 

Sergeant James Dat – Oral Evidence and cross-examination 

11. The witness adopted his affidavit in examination in chief. In cross-examination he said he is based in Kerowagi Police Station for about 28 years and has conducted many road accident investigations and reports. For the case at hand, he arrived at the scene of the accident a day later. He did two reports. One was the initial report done on 10th January 2003 (“first report”) and the second one was done on 23rd April 2003 (“second report”). The first report was done after the accident. There was no passenger or any injured person around as everyone had left the scene. The second supplementary report was done after John Tuman came back to the police station after medication and asked for one and he did the second report and included John Tuman’s name as the injured passenger. It is normal practice for supplementary accident reports to be done in the manner that he did and in such circumstances. The reports were properly forwarded to the Directorate of Traffic at Konedobu. He said he spoke to the driver and the driver told him that there were many passengers in the bus. He was not aware of the names of the passengers simply because he did not know them. No one reviewed the accident report because he was the only superior officer, the officer in charge for traffic in Kerowagi so he sent the reports to Konedobu. He said as there were no errors or faults in the two reports so they were never sent back. He established that both reports were the official reports. 

Dr. Jacob Painui 

12.     He is a general and Orthopaedic Surgeon based in Mount Hagen General Hospital and his qualifications are MBBS, Masters in Medicine & Surgery and Diploma in Orthopaedic Surgery. On 15th January 2003, he reviewed the patient John Tuman at the Mount Hagen General Hospital and his findings were stated in the report he did which was annexed to his affidavit as Annexure “A”. The review was done using the clinical notes from the Kudjip Hospital which are annexed in the plaintiff’s evidence. 

Medical Report 
13.     The medical report referred to above is dated 20th April 2006. In that report he says that he reviewed John Tuman on 15th March 2006. On examination, a scar was seen on the right side of his neck. Turning the neck to the right was painful. Flexion and extension movements were good but pain was felt at extremes of these movements. Lateral flexion to the right was restricted and slightly painful. Lateral flexion to the left was good but painful at its extreme. Rotation to the right was painful but rotation to the left was not painful. Chest movements were good and no abnormalities were noted. 

 14.     He concluded that the patient John Tuman has recovered from the chest injury with normal physical findings on examination. Neck movements were painful and restricted to some extent on the right. He awarded a 20% loss of the effective use of the neck and a 5% loss of the effective use of his chest. 
        
 Doctor John Mckup 
15.       His affidavit was admitted without objections and established that; he is a private Medical Practitioner based at the Family Medical Centre Limited in Mount Hagen. He examined John Tuman on 20th May 2005 and produced a report which he annexed as Annexure “A” to his affidavit. Again the Doctor used the initial clinical notes from Kudjip Hospital to prepare the report.  

 Medical Report 

16.     In that report dated 20th May 2005, the findings related to those of his neck and chest. In his neck, there is a scar on the right side with gross restriction to neck movements. On the chest, he found that it is tender to compression as well as reduced air entry in the lungs. There was no evidence of fractured ribs and other systems were within normal limits. He concludes that this chap with neck/chest injuries still has deficits to his head/neck and chest wall functions. He was awarded for loss of neck function at thirty percent (30%) and chest wall loss at twenty percent (20%). He states disability will be stable. The report however states that in future analgesics and active physio may help. 
The Defendant’s Evidence. 
17.   The defendant offered no evidence. 
Plaintiffs Submission 
Circumstances of Accident 
18.  On the issue of whether the claim met the requirements of the Motor Vehicles (Third Party Insurance) Act, Mr. Piam submitted that both the oral and written evidence of John Tuman, John Kundi and Sergeant James Dat should leave the Court in no doubt  as to the circumstances in which the Motor Vehicle Accident occurred. The plaintiff’s evidence is corroborated by the eyewitness account of John Kundi. His evidence is consistent with the plaintiff’s evidence. There is no issue as to whether there was an accident or not. The only issues relate to whether the claim met the requirements of motor vehicle insurance trust whether the plaintiff sustained the injury as a result of the accident and whether the accident was caused by the negligent driving of the driver Plak Koi. 
19.     The evidence is that on 6th January 2003, the plaintiff was a passenger on a Toyota Coaster bus registration number P.715W owned by Mokal Koi and driven by Plak Koi. At Barawagi, the driver was threatened with a gun, he panicked and lost control of the bus resulting in the bus running off the road and overturning. He sustained injuries to his neck, cut by a glass and bumped his chest on the seat in front of him. He was taken to Kudjip Hospital for initial treatment and was later released. He received further treatment and medical reviews at Mt. Hagen General Hospital. He annexed to his affidavit clinical notes from Kudjip Hospital which confirms the blunt chest injury and the right neck cut injury. Consequently, he has difficulties in the effective use of his chest and lungs. 
20.     The next day after the accident on 7th March 2003, Sergeant James Dat attended to the accident after getting report of the accident. He said the owner of the bus was Mokal Koi. The bus bore the registration number P.715W and had an insurance policy number 2263380. The driver of the bus was Plak Koi. He prepared two accident reports which contained the same information in regards to the vehicle registration number, driver, ownership and insurance policy. The one done on 10th January 2003 contains no names of injured passengers and the one done on 23rd April 2003 had John Tuman’s name as an injured passenger. He states at paragraph 4 of his affidavit that his investigations revealed that the driver of the bus was held up by rascals who told him to stop and instead of stopping the bus he accelerated on and lost control. He said the driver could have avoided going off the road by simply stopping. In his report he stated that no passengers were injured but the vehicle was excessively damaged. In cross-examination he said he has been based in Kerowagi Police Station for about 28 years and has conducted many road accident investigations and reports. For the case at hand, he arrived at the scene of the accident a day later. He did two reports. One was the initial report done on 10th January 2003 (“first report”) and the second one was done on 23rd April 2003 (“second report”). The first report was done after the accident. There was no passengers or any injured persons around as everyone had left the scene. The second supplementary report was done after John Tuman came back to the police station after medical attention and asked for one. Consequently, he did the second report and included John Tuman’s name as an injured passenger. It is normal practice for supplementary accident reports to be done in the manner that he did and in such circumstances. The reports were then properly forwarded to the Directorate of Traffic at Konedobu. He said he spoke to the driver and the driver told him that there were many passengers in the bus. He does not know the names of the passengers simply because he did not know them. No one reviewed the accident report because he was the only officer, the officer in charge for traffic in Kerowagi so in the circumstances he sent the reports to Konedobu. He said normally if there were errors or faults in the reports they would be sent back. In this case the reports were not sent back as they were ok. He established that both reports were the official reports.  

21.     The evidence of the two Doctors supported the proposition that the plaintiff was injured in a motor vehicle accident. Dr. Painui gave evidence that he is a general and otheopaedie surgeon based in Mt. Hagen General Hospital. He reviewed the plaintiff John Tuman using the clinical notes from Kudjip Hospital. On examination a scar was seen on the right side of the neck. Turning the neck to the right was painful. Flexion and extension were good but pain was felt at extremes of these movements. Lateral flexion to the right was restricted and slightly painful. Lateral flexion to the left was good but painful at its extreme. Rotation to the right was painful but rotation to the left was not painful. Chest movements were good and no abnormalities were noted. He concluded that the patient John Tuman has recovered from the chest injury with normal physical findings on examination. Neck movements were painful and restricted to some extent on the right. He awarded a 20% loss of the effective use of the neck and a 5% loss of the effective use of his chest. 

22.     Dr. John Mckup is a private medical practioner based at the Family Medical Centre Limited in Mount Hagen. He examined John Tuman on 20th May 2005 and produced a report which he annexed as Annexure “A” to his affidavit. He did the report using the clinical notes from Kudjip Hospital. In that report dated 20th May 2005, the findings related to those of his neck and chest. In his neck, there is a scar on the right side with gross restriction to neck movements. On the chest, he found that it is tender to compression as well as reduced air entry in the lungs. There was no evidence of fractured ribs and other systems were within normal limits. He concludes that this chap with neck/chest injuries still has deficits to his head/neck and chest wall functions. He was awarded for loss of neck function at thirty percent (30%) and chest wall loss at twenty percent (20%). He also states that disability will be stable. The report states that in future analgesics and active physio may help.
Insurance    
 23.      As to whether the vehicle was insured, Mr. Piam relied on the affidavit of the investigation officer Sergeant James Dat which proves beyond reasonable doubt that the vehicle was insured at the relevant time. Mr. Piam argues that in the instant case the Public Motor Vehicle bus was insured against risk of injuries and deaths. The driver is identified, the owner is identified, the insurance policy number is known and Motor Vehicle Insurance Limited does not deny the existence of the policy. He submits it would be unfair to argue that the plaintiff should not be compensated for the injuries because the injuries were sustained due to the actions of the rascals and not the driver. John Tuman herein was not injured by the actions of the rascals but by the use of the Public Motor Vehicle bus. It is irrelevant whether the driver was negligent or not. So long as the plaintiff was injured and the injuries were caused by or arising out of the use of the Public Motor Vehicle bus and the Public Motor Vehicle bus was duly insured which is clear and the plaintiff did nothing to contribute to his injury he must be compensated. 

Negligence 
24.      The issue here was whether the plaintiff sustained injuries as a result of a criminal act or the negligent driving of the driver, Mr. Piam submits the negligence test should answer this. The first test is did the driver owe a duty of care. Yes the driver owed a high duty of care to his passengers who were taking a paid ride. Safety of his passengers was a priority and he was supposed to do all he can to ensure safety of his passengers including the plaintiff. The second test was whether the driver breached that test by been negligent. The evidence of the plaintiff, John Kundi and Sergeant James Dat was that the driver was held up by rascals with a pistol. The rascals and passengers told him to stop but instead he accelerated, lost control of the bus and it overturned. He submits the issue of foreseeability must also be considered herein. The most crucial evidence was that the rascals and the passengers told him to stop but he did not. Further his neck was also entangled and he could not see the road. He had control of the bus but he failed to stop the bus when all he had to do was step on the brakes to stop the bus. He submits risk is an integral notion of negligence and the logical question is therefore to ask if the consequence can fairly be regarded as been within the recognizable risk created in part and sanctioned by the driver.

25.       In Koko Kopele v. Motor Vehicle Insurance (PNG) Trust [1983] PNGLR 223; N447, the plaintiff was on an overloaded truck. He was in the roof of the truck and when the tuck approached the 3 mile hill in Port Moresby, police fired tear gas at them to stop demonstrators and the plaintiff fell down and fractured his right femur and was admitted to 3 months in hospital. 

       McDermott J held as follows; 

       “I think it is misleading to rely on the assertion that “Carriers of passengers are not insurers of the safety of the persons whom they carry. Their obligation is to exercise due care towards their passengers and no more”: North Shore Transport Company Ltd v. Oram [1945] N.Z.L.R. 552, in order to escape liability. The driver’s prima facie duty is “to exercise common care and skill in the management of the vehicle and [he] is liable to the passenger if he is injured through a failure on the drivers part to do so’: see Dixon J, in The Insurance Commissioner v. Joyce [1948] HCA 17; [1948] 77 C.L.R. 39 at 55. Management, particularly on the facts before me, means more than just care and skill in driving, because the driver was in control of the vehicle and allowed it be over-crowded with passengers. This is a relevant consideration generally in this country and particularly in this action. I therefore, conclude that the first defendant should be adjudged partly liable for the plaintiff’s injury".  
 
26.  “Risk is an integral notion of negligence and the logical question is therefore to ask if the consequence can fairly be regarded as been with the recognizable risk created in part and sanctioned by the driver.”

27.     Mr. Piam submitted that in this case the management of the bus at that very moment included stopping the bus. There was the recognizable or foreseeable risk that the bus would crash and injure the passengers. The bus was still within the control of the driver to stop it. He was not pulled out of the bus nor ejected. He still had total control of the bus and all he had to do was to step on the brakes. 

28.     John Tuman and John Kundi said when the rascals held him up one pointed a gun at his head. The other grabbed his neck and so he was not able to see the road but he still drove on. It was not a spur of the moment event. He had all the time in the world to have stopped the bus. The paramount consideration or priority were the passengers and so he should have stopped the bus given that he was demanded to stop not only by the rascals but also by the passengers including the plaintiff and John Kundi.   

29.     The defendant has not rebutted nor disproved this crucial point already proved on the balance of probability according to Law. There is no evidence on the contrary on this aspect. The defendant has not rebutted nor disproved this factual situation. 

Damages 
30.    Mr. Piam submitted that the total award be assessed at K58, 650.00 comprising general damages (K20, 000.00) Global economic loss (K20, 000.00) interest of (K17, 600.00) and special damages (K1, 050.00). 
Defendants Submission  
31.   Mr. Peri submitted that the plaintiff was a passenger in a Toyota Coaster bus bearing the registration number P.715W and was injured when criminals                  held up the driver who lost control of the motor vehicle ran off the road and overturned. 
32.    In paragraphs 30 of the statement of claim, the allegation is that on 6th January 2003, the plaintiff was a passenger in a Toyota Coaster Bus bearing registration number P.715W owned by Mokal Koi and driven by Plak Koi. The policy number was 2263380. The period of cover was from 6th June 2002 to 6th June 2003. If the alleged motor vehicle accident occurred on 6th January 2003, the alleged motor vehicle accident would have occurred when the motor vehicle was insured within the ambit of s.54(1) of the MVIT Act.
33.    The defendant in paragraph 3 of its defence states that it does not admit plaintiff’s allegation. Consequently, the plaintiff has the burden of proving the allegation in paragraph 3 of the statement of claim. This has not been done. 
34.     Secondly, the plaintiff has not met the requirements of S.54 of the Motor Vehicle Insurance Trust Act in that the plaintiff has not proven that the vehicle involved in the alleged accident was insured or if it was uninsured was driven on a public street when it got involved in the accident or its identity had not been established after due inquiry and search.  
35.    Thirdly, that the accident report was tainted in that there were two separate accident reports. From the affidavit of Sergeant James Dat, two (2) motor vehicle accident reports have been annexed, the first one with no names on the passenger/casualties list and the second one had the plaintiff’s name in the passenger’s list. In the first road accident report the police description of the motor vehicle accident is described as follows; 
    
               Police Description of Accident
	Matter reported at station, police proceeded to the scene.
	Suspects escaped and still at large. No victimized on 
	passengers. No injuries etc.,
	Driver was only held back, his neck were bruised had 
	mark. The vehicle was only damaged excessively. 
	Attached Police Mechanical Report.  

36.     On the basis of the above police description of the accident the driver was not arrested and charged. The defendant submits that the first accident report of the police description of the motor vehicle accident is correct. In the second motor vehicle accident report the investigating officer in the various columns noted what caused the accident, the sketch of the accident scene, police description of accident, the site location sketch, and finally the accident proposed as confirmed or varied. The investigating officer noted as refer to the previous which contains the actual findings. Ultimately the defendant says this was all fabricated. When a transaction has been reduced to, or recorded in, writing either by requirement of law or agreement of the parties, extrinsic evidence is in general inadmissible to contradict, vary, add to or subtract from the terms of the document. Bank of Australia v. Palmer [1897] A.C. 540, 545, per Lord Morris; Edwards v. O’ Connor [1991] 2 N.Z.I.R. 543.

37.    Nothing can be added or, subtracted from the initial road accident report which contains the findings of conclusive evidence that the alleged motor vehicle accident resulted from a criminal act where the driver was told to stop by two (2) men who boarded the bus at Kundiawa. When he did not stop one held the driver’s neck and the other man pointed a gun on his head. Instead of stopping the driver panicked and accelerated up the mountain and overturned.
38.     The third party insurance scheme in Papua New Guinea under the MVIT Act, has been adopted from the common law principle of “fault”, meaning that the defendant can only be held liable if its insured driver was at fault. If the insured driver was not at fault the defendant cannot be held liable. The reasoning by Justice Woods in the Lucy Kongupi case (supra) is the leading authority. His Honour held that there must be some element of negligence or some way one can assume some negligence as the third party insurance is 
 not a no fault liability protection.    
39.   Under section 54 of the Motor Vehicles (Third Party Insurance) Act, a person has the right to make a claim against the defendant for the death of or, bodily injury arising from a motor vehicle accident. The liability of the defendant is in 3 categories which include: 
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. 
40.    It is therefore the law in Section 54 of the MVIT Act that, a plaintiff who seeks damages against the defendant from a motor vehicle must show that the motor vehicle involved in the alleged accident must be insured, must be driven on a public street when it got involved in the accident or its identity could not be established after due inquiry and search. 
41.    The plaintiff’s claim against the defendant is that the Toyota Coaster Bus registration number P.715W owned by Mokal Koi and driven by Plak Koi caused the motor vehicle accident. The Toyota Coaster Bus was registered and insured against third party liability and the driver of the Toyota Coaster Bus drove the motor vehicle negligently thereby causing the accident. The plaintiff’s claim is therefore under s.54 (1) of the MVIT Act, and the plaintiff was required to give evidence that the Toyota Coaster Bus was so insured under the Act. 
42.    In MVIT v. Waige & Others [1995] PNGLR 202, the Supreme Court by majority made the following observation: A plaintiff has to give notice and put himself into one of the three (3) categories of claimants, and the Court has a number of times made it clear that failure to specifically plead into which category the claim is made could lead to the failure of the claim because of vagueness of the issues. 

43.     There is always the overriding principle that the onus is on the plaintiffs to prove their case. This principle has been reiterated by the Supreme Court in Adevu v. MVIT [1994] unreported SC 461.
  “The sequence of events was that by its pleadings the defendant required the plaintiff   to prove his case because the defendant did not know about the alleged circumstances of the accident. The plaintiff was put on clear notice that the allegations were not believed by the defence and that they would need to be proved.” And further: “The defendant had simply given notice that it did not know about the alleged circumstances of the case and that they would need to be proved. Whilst pleadings put some responsibility on a defendant to assist in defining the issue it puts no responsibility in any defendant whoever they are to help the plaintiff to prove their case. That is made clear by the Supreme Court above. Of course there is an overriding fact that an unreasonable defendant may not only lose the claim but also the additional costs of running a trial. In this case before us now the general denials of the defendant to each allegation is clearly within the rules and is not the same as pleading the general issue". 
44.   In Lucy Kongupi v. MVIT (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 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.” 
45.     In Imambu Alo v. MVIT [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 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 Bepwin Ambon v. MVIT (1992), N1116. 
46.    The pleading in paragraph 3 of the Statement of Claim was traversed. In paragraph 5 of the affidavit of Sergeant James Dat (Exhibit B) the allegation is that the insurance and registration papers produced to him clearly showed, the owner of the vehicle to be Mokal Koi. It bears registration No.P.715W and Policy No. 226380. He stated those in the police report he produced. Annexed hereto and marked with a letter “A” is a true copy of the Accident Report. 
47.    Sergeant James Dat should have annexed a copy of the Insurance and Registration documents to his Affidavit to prove the allegation in paragraph 3 of the Statement of Claim. The Court cannot be asked to assume that the motor vehicle was registered. In the Imambu Alo (supra) the National Court held that the fact of registration and insurance require strict proof and in the absence of evidence of registration or, insurance there is no basis of a presumption of insurance. 
Finding of Facts

Undisputed facts 
48.  There is no dispute that there was an accident. 
Disputed facts 
49.   When, where and how was the plaintiff injured. 
•	If he was injured in the manner alledged was the vehicle he was travelling in insured by the defendant. 
50.    I start by assessing the overall standard of evidence both documentary and oral. In relation to documentary evidence the relevant exhibits are the records of the plaintiff’s initial admission at Kudjip Nazarene Hospital by way of clinical notes, the medical reports of his reviews and the Police accident reports. The initial clinical notes are hand written. The hospital records are comprehensive and were done over a period of time. The clinical notes and the medical reports were annexed to the plaintiff’s affidavit. Their authenticity was not questioned by the defendant’s lawyer. They were tendered through the plaintiff rather than through the hospital concerned and no issue was taken with that. On its face I regard the hospital records as genuine and which support the plaintiff’s version of an accident. In particular they support the evidence of an accident that caused the injury to the plaintiff.  
51.    The medical report of Dr. Painui and Dr. Mckup were prepared following examination of the plaintiff couple of years after the accident. The defendant does not dispute the nature, extent and permanence of the injuries. I regard the reports as genuine and consistent with the proposition that the plaintiff was injured in the manner alledged in the said motor vehicle accident. In cross-examination the Doctors evidence were never tested. A number of contentious issues were never raised by way of the proposition in Brown v. Dunn.  
52.    The police accident report is another documentary evidence. It is evidence that there was a police investigation into an accident involving the plaintiff on the 6th January 2003. Sergeant James Dat the investigating officer explained why there were two accident reports. The first report was done 4 days after the accident on 10th January 2003. Obviously no one was expected to hang around and wait for the policeman to arrive for the investigation. He explains that is why the first report never reported any casualties. Another notable factor was that he says the subject bus was extensively damaged indicating that it overturned. This also confirmed the accident. The second report named the plaintiff as injured after he enquired and was advised that he was one of the injured person after receiving medical attention some two months later. Given the geographical location of the accident, the logistical problems of the police force, I accept his story. In any event his evidence was never really tested in cross-examination. The defendant’s lawyer submits that the pleading in the statement of claim was traversed and argues that copies of the insurance and registration papers should have been annexed to his affidavit. He cites the case of Imambu Alo (supra). That case is different as there was conflicting evidence between the driver and the policeman about particulars of insurance and registration. That is not the case here. The evidence is sufficient in my view to establish registration and insurance. How the plaintiff sustained injuries has been discharged to the required standard in my view. The defendant argues that the plaintiff may have fabricated the story. This is basically on the premise that the circumstances surrounding the accident reports are questionable. The defendant has not filed any rebuttal evidence and only raised the issue in submissions. The rule in Brown v. Dunn was strictly not applied in cross examination of the plaintiff and his witnesses. 
53.     I am satisfied that the plaintiff has proven on the balance of probabilities that he was injured whilst a passenger on the Toyota bus registration number P.715W on 6th January 2003. 
Was the Vehicle Insured? 
 54.       I will discuss and resolve this issue by applying the following principles.
•		though Section 49 of the Motor Vehicles (Third Party Insurance) Act requires that a certificate be issued when insurance is obtained, there is no rule of law or procedure that says that a certificate must be adduced in evidence in order to prove that a vehicle was insured at the relevant time; 
•		generally the plaintiff has the onus of proving on the balance of probabilities that the vehicle was insured;   
•		however if a statement of claim gives details of the registration number and insurance policy number of a vehicle, the MVIL should not plead that it does not know and cannot admit whether a vehicle was insured and if it does so plead, its defence can to that extent be struck out (Jack Lundu Yalao v. MVIT 1995) N1386, National Court, Injia J); 
•		if evidence as to insurance is conflicting the court should generally insist on a certificate as proof of insurance (Imambu v. MVIT [1992] PNGLR 487, National Court, Brown J; Pare Umbe and Ngants Kopi v. MVIT (1998) SC585, Supreme Court, Hinchliffe J, Sawong J, Akuram J); 
•		if there is no proof that the vehicle was registered it will be difficult in the absence of a certificate of insurance to prove insurance (Garo Kei v. MVIT [1992] PNGLR 195, National Court, Brown J); 
•		oral evidence by a police officer of a search of the motor traffic registry which revealed that the vehicle was insured can constitute proof of insurance even if the certificate or a record of the search is not produced (Bepiwam Ambom v. MVIT (1992) N1116, National Court, Brown J); 
•		tender of a motor traffic accident report containing details of registration and insurance can, without anything more, constitute proof of insurance (Martin Kilte v. MVIT (1992) N1085, National Court, Woods J; Kamtai Waine v. MVIT [1993] PNGLR 446, National Court, Woods J); 
•	 	Oral evidence of a police officer containing details of the officer’s observations about checking of registration and insurance of a vehicle for the purposes of investigating a motor vehicle accident is not hearsay and can be accepted as the best evidence available, especially where it has not been disproved by the party with the responsibility of keeping statutory records (Swingley Oni v. MVIT (2004) N2767, National Court, Batari J). 
This case 
55.     In view of the principles above, I reject Mr. Peri’s argument that it was necessary for the plaintiff to annex the certificate of insurance to the plaintiff’s affidavit to prove insurance. The plaintiff in this case has proven insurance by relying on the road accident report prepared by the investigating officer Sergeant James Dat. I have already ruled earlier that I accept the evidence of Sergeant James Dat. He was cross examined at length. In his evidence he said he confirmed that on Monday 6th January 2003, there was a motor vehicle accident on the road from Kerowagi to Minj. He said he obtained from the driver insurance and registration papers as well as statement of eye witnesses. The insurance and registration papers produced to him clearly showed the owner of the vehicle, the registration and policy number which he stated in the accident report which was annexed to his affidavit. He was satisfied that the registration and insurance and safety sticker were current. I can clearly distinguish this case from Imambu Alo and other cases where the claims were dismissed as there was conflicting evidence about whether the vehicle was insured. There is no conflicting evidence in this case. 
56.     Furthermore, the statement of claim herein clearly details the registration number and the insurance policy number of the vehicles, the driver and the owner. The defendant is therefore estopped in the circumstances from pleading it in its defence that it does not know and cannot admit whether the vehicle was insured: Jack Yundu Yalo v. MVIT (supra). I am therefore satisfied that the plaintiff has proven on the balance of probability that the said vehicle was insured by the defendant. 
The final issue is whether the accident was caused by the negligence of the driver Plak Koi? 
57.    This is a crucial issue. The driver was held up by rascals with a pistol. Because of that he lost control of the bus resulting in the injury to the plaintiff and others. So in the circumstances was the driver negligent or was the accident caused by the action of the rascals? This issues will be answered by addressing the negligence test. 
58.    The first test is did the driver owe a duty of care. The driver owed a high duty of care as required of drivers to his passengers who were taking a paid ride. The safety of the passengers was the driver’s priority. He was required to do all the best he can to ensure passengers including John Tuman were safe.

59.  The second test is whether the driver breached that duty i.e. was he negligent? On this test the plaintiff rely on the oral evidences of John Tuman, John Kundi and Sergeant James Dat. The evidences establish that the driver was held up by rascals with a pistol. He panicked and lost control of the bus as it went up the mountain and overturned. The rascals and the passengers told him to stop but he accelerated instead. The issue of foreseeability arises herein. 

60.  The most crucial evidence was that the driver was asked to stop by the rascals. Everyone else in the bus including John Kundi and John Tuman also called out to him to stop which was the only choice he had. He however continued to accelerate. It was inevitable and foreseeable that there would be an accident. This was because his neck was entangled and he could not see the road. He had control of the bus but he failed to stop when all he had to do was to step on the brakes to stop the bus. 

61.    In Koko Kopele v. Motor Vehicle Insurance (PNG) Trust [1983] PNGLR 223; N447, the plaintiff was on an overloaded truck. He was in the roof of the truck and when the tuck approached the 3 mile hill in Port Moresby, police fired tear gas at them to stop demonstrators and the plaintiff fell down and fractured his right femur and was hospitalised for 3 months.  

       McDermott J held that it was misleading to rely on the assertion that “Carriers of passengers are not insurers of the safety of the persons whom they carry. Their obligation is to exercise due care towards their passengers and no more”: North Shore Transport Company Ltd v. Oram [1945] N.Z.L.R. 552, in order to escape liability. The driver’s prima facie duty is “to exercise common care and skill in the management of the vehicle and [he] is liable to the passenger if he is injured through a failure on the drivers part to do so’: see Dixon J, in The Insurance Commissioner v. Joyce [1948] HCA 17; [1948] 77 C.L.R. 39 at 55. He states that Management, particularly on the facts before me, means more than just care and skill in driving, because the driver was in control of the vehicle and allowed it be over-crowded with passengers. This is a relevant consideration generally in this country and particularly in this action. I therefore, conclude that the first defendant should be adjudged partly liable for the plaintiff’s injury.   
“Risk is an integral notion of negligence and the logical question is therefore to ask if the consequence can fairly be regarded as been within the recognizable risk created in part and sanctioned by the driver.”

62.    I agree with Mr. Piam’s submissions. In this case the management of the bus at that very crucial moment included stopping the bus. There was the recognizable or foreseeable risk that the bus would crash and injure the passengers. The bus was still within the control of the driver to stop it. He was not pulled out of the bus nor ejected. He still had total control of the bus. John Tuman and John Kundi said when the rascals held him up everybody told him to stop but he still drove on. It was not a spur of the moment event. He had all the time in the world to have stopped the bus. The paramount consideration or priority were supposed to be the passengers. The defendant has not rebutted nor disproved this crucial point already proved on the balance of probability according to Law. There is no evidence to the contrary on this aspect. 

63.    In the circumstances, I find that the driver owed a duty of care to the plaintiff. He breached that duty by been negligent and his conduct caused injury to the plaintiff.

64.     In dealing with the question of negligence when intervening acts or events occur foreseeability becomes relevant because it; 

(a)	Measures the duty of care 
(b)	Determines whether the damage is far remote and
(c) Determines whether the act or event has broken the chain of causation. The criteria of foreseeability answers all this matters: Kopele v. MVI (PNG) Trust (supra). 

65.  A further evidence is the use of the Latin Maxim “Res Ipsa Loquitor” meaning the thing speaks for itself. In Baikisa v. J&2 Trading Ltd N6181 Cannings J said;
 
     	“The accident must speak the defendant’s negligence and be such as to 	raise two inferences (1) that the accident was caused by a breach by 	somebody who owe a duty of care to the plaintiff and (2) that the 	defendant was that somebody.” 

66.   In Timson Noki v. Fraser & Barclay Bros [1991] PNGLR 260 Woods J said; 
        	Res ipisa Loquitor s no more than a rule of evidence based on common   
  	sense which raises a presumption of fact in the absence of any other   
  	evidence or explanation that the defendant has been negligent. It suggests 
         	that because something went wrong and in the normal scheme of things 
 	such would not go wrong unless someone was negligent but no 	negligence can be found here nevertheless the thing speaks for itself and  
  common sense says there must have been negligence. Hartshon J further 
  in explained the operation of the principle in Marshall lagoon Investment 	Company Pty Ltd v. Ding Company Ltd [2008] N3650 by reference to 	decisions of the High Court of Australia; The principle of “res ipsa   
  loquitur” may be invoked when three elements  are established; 

(a)	There is an “absence of explanation” of the occurrence that caused the  
 damage; 
(b) The occurrence was of a kind that does not ordinarily occur without  
     negligence; 
 (c) Whatever caused the occurrence was under the control of the      
      defendant.   

67.   In the circumstances, I also invoke the principles of “Res Ipsa Loquitur” because there is no explanation on the part of the driver as to why he allowed the bus to speed up the mountain when it was apparent that the very situation he was in demanded him to stop the bus. He fails to explain why he failed to stop when he was demanded to stop. I find the accident speaks for itself. I find he breached his duty of care owed to his passengers.

68.    Did the negligent conduct cause injury to the plaintiff? I find that the plaintiff did suffer injuries to his chest wall and neck as a result of the accident. Uncontradicted evidence came from John Tuman, John Kundi, Sergeant James Dat, Jacob Painui and Dr. John Mckup. Their evidences established that John Tuman sustained blunt chest injuries due to impact by the seats infront of him and his right neck was cut by broken glasses. This are confirmed by medical reports. 

69.   Were the plaintiff’s injuries too remotely connected to the drivers conduct? For this test the Supreme Court case of Moini v. The State [1978] PNGLR 184 was referred to. Moini’s case was an appeal by the State from the decision of the National Court which held the State liable for the death of Moini. The brief facts are that, a male passenger namely a Moini was killed in retaliatory acts by relatives of a deceased girl who was killed in an accident involving the car in which Moini was a passenger. Death of the little Goroka girl was caused by the negligent driving of the driver namely Rovin. The vehicle was owned by the State. The State as the owner of the vehicle was held liable by the National Court because it was reasonably foreseeable that there would have been retaliatory actions by relatives if someone was killed in the Highlands of Papua New Guinea. 

70.     The lawyers for the defendant argued in that case that damages which the widow of Moini were seeking especially dependency claim were too remote to the actions of the driver, Rovin. They argued that Moini was killed by the angry relatives of the deceased girl and his death was not directly caused by the negligence of the driver. The negligence of the driver resulted in the death of the little girl and not the death of Moini. The death of Moini was too remote to the actions of the driver Rovin. The National Court considered whether the killing of Moini was a reasonable foreseeable consequence of the breach of duty of care owed by Rovin as the driver of the vehicle to Moini. It cited the case of Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co. Ltd (The Wagon Mound) [1961] A.C.388. In that case the general principle laid down was that in that case “the essential factor in determining liability for the consequence of a tortious act” “is whether the damage is of such a kind as a reasonable man should have foreseen.”
71.     The National Court stated that; 
        	“Applying these principles to the present case, the question which arises 	is whether or not a reasonable man should have foreseen that failure on 
         	his part to maintain proper control and management of the vehicle        
         	resulting in the death of injury to another user of the road would be 	likely to bring about violent retaliatory action against himself and other     
        	occupants of the vehicle at the hands of the kinsmen of the person killed	or injured.” 

72.     There was evidence from which the trial judge in that case could find on the balance of probabilities that the pay back killing in that case would not have occurred without the negligent act of the driver Rovin and therefore could be 
said to have caused by Rovin’s negligence. The Supreme Court upheld the trial
Judge’s decisions and refused the appeal on this issue.  

73.   On the question of causation or intervening events His Honour Prentice CJ in commenting cited the case of Cuckon v. Polyester Reinforced Products Pty Ltd which illustrates the point. One does not proceed to consider the ambit of foreseeability where one first decides that the particular piece of negligence caused the damage in question. 

74.     His Honour said; 
      
       	"Foreseeability is a question of fact that must be determined in the light 	of the particular circumstances of a case. No doubt in certain parts of 	some African countries a driver’s duty to his passenger would involve 	his taking precautions that his passenger be not injured by the charge of 	an elephant or the slash of a lion through an open window. In certain 	parts of Australia the hazards to which his duty would extend would 	include the leaps of kangaroos across the road at night. In Papua New 	Guinea in many districts a foreseeable risk is that of injury to a 	passenger from the sudden intrusion of pigs on the road. It is a matter 	for regret that in the Highlands in 1972 the possibility of a payback 	killing following upon a road accident was a matter that would be 	expected to be in a reasonable driver’s mind. The evidence supports the 	conclusion on this subject to which the trial judge came, and I think it is 	incontestably a matter of notoriety that a reasonable man in Rovin’s 	position would reasonably have foreseen the killing of Moini and/or 	himself as the likely consequence of his killing of the child and 	overturning of his vehicle.” 

75.    In the light of above principles enunciated, I find that this principles of foreseeability and causation and remoteness of damage equally apply to the instant case. 

76.    I find the injury sustained by the plaintiff was a direct result of the driver’s failure to stop in the given circumstances. It was foreseeable that there would be likely risk of injuries if the driver did not apply the brakes. The injuries were caused by the driver’s failure to stop. The injuries were not too remotely connected to the action of the driver. The intervening event of the driver been held up did not cause the accident. 

77.     In Moini’s case, Moini was killed by relatives of the deceased girl. He was not killed by the direct act of the driver. However, both the National and Supreme Court held that killing of Moini was foreseeable. I find that the resulting injuries in the current case was a foreseeable consequence of the driver not stopping the bus when the circumstances of the case demanded him to stop. This appeared to be a similar situation in Koko Kopele where the injury to the plaintiff was not directly caused by any act or omission of the driver but the Police. The driver was however held liable because he failed to stop the plaintiff from riding on the roof of the vehicle. The risk of injury was foreseeable. 

78.    The defendants counsel argued that the accident arose out of the action of the rascals and they ought to be blamed. However I agree with the counsel for the plaintiff that the circumstances the driver was placed in demanded him to stop but he failed to stop. I find this amounted to negligence on his part which led to the bus overturning. 

79.     I would include another analogy to the PNG situation that the duty of care of driver of a PMV bus ferrying passengers to and from the Highlands Highway would include ensuring the passenger’s safety from rascals as such is common along the Highlands Highway. 

80.    In this instant case, the driver had the duty of care to protect his passengers from being injured by the rascals. The necessary precaution and act which he should have done to fully discharge his duty of care would be to stop the bus so that it does not crash and cause injuries. Despite him being held up by the rascals, he still owed a high standard of care to his passengers. The acts of the rascals did not take away his duty of care which he owed to the passengers who took a paid ride on the bus and whose lives were entirely in his hands. It was foreseeable that if he did not exercise due care and attention in controlling the bus at that time, it was inevitable and foreseeable that the bus will crash and cause injury. The injury that John Tuman sustained was foreseeable and thus, the driver was negligent when he did not stop the bus. 

81.     Given the above, the issue as to whether the plaintiff contributed to his demise is irrelevant.
 
82.     In conclusion I find that the driver of the bus was negligent. 

Given the findings of facts I now address the three (3) major legal issues.
83.     Does the claim meet the requirement of the Motor Vehicle (Third Party Insurance) Act? Yes. The plaintiff’s claim falls within section 54(1) (a), as it has been proven that:
•	It is a claim for damages; 
•	 for bodily injury to a person; 
•	arising out of the use of a motor vehicle; 
•	the motor vehicle was insured under the Act; 
•	the claim was made against the defendant and not the owner of driver; and 
•	proceedings to enforce the claim were taken against the defendant and not against the owner or driver. 
 Was the Driver guilty of the Tort of Negligence? 
84.    I am satisfied that the plaintiff has proven all the elements of negligence. I therefore conclude that the driver of the vehicle committed the tort of negligence. Liability is therefore established against the defendant. 
 I will now address the issue of damages. 
What amount of damages should be awarded? 
85.    The plaintiff received injuries to his neck and chest and was admitted to Mt Hagen General Hospital for treatment and follow up reviews. He suffers pain upon turning his neck and also suffers from loss of breath. His condition is supported by the following medical reports:- 
          a. Dr John Mckup examined the plaintiff in May 2005, and awarded a 
              residual disability at 35% in the effective use of the neck, and 20% use 
              of chest. 
          b. Dr. Jacob Painui examined the plaintiff in March, 2006, and awarded a   
              residual disability at 20% loss of neck and 5% loss of chest. It is a    
              permanent loss. 
          c. Dr. Sam Yockupua assessed on 17th February2003 that the plaintiff 
              will have 15% loss in effective use of chest. 
86.    In respect of damages, Mr. Piam submits that the total award should be assessed at K58, 650.00 comprising general damages at K20, 000.00 economical loss – global at K20, 000.00, special damages at K1, 050.00 and interest at K17, 600.00. 

87.    Mr. Peri for the defendants submits that damages should be assessed at K27,325.00 comprising of general damages at K10,000.00, Economic loss-global at K8,000.00, special damages at K525.00, and interest at K8,800.00. 

General Damages 

88.   This head of damages was pleaded in the statement of claim and represents pain and suffering and loss of amenities of life and loss of expectation of life associated with the plaintiffs permanent disabilities. Both Mr. Piam and Mr. Peri have cited a number of cases to demonstrate why they have come to the damages they have arrived at. 
Table 2. Assessment of general damages – neck and chest injuries. 
Plaintiff’s comparable list
No	Case 	Details 	Assessment 	
1	George Kala v. Joseph Kupo and the State (Makail J) 2009 – WS No. 1746 of 2001. 	Plaintiff was assaulted by Police. He received bruises only. He was awarded K5, 000.00 for general damages and K2, 800.00 for economic loss. 	He was awarded K5, 000.00 for general damages and K2, 800.00 for economic loss.	
2	Demba Kalo v. Cornie Akaya and State (2007) N3213	The plaintiff was assaulted by police. He suffered bruises to his face and body. He has a small disability in the use of his eyes at 35%. He was awarded K5, 000.00 for the bruises and K20, 000.00 for the eye injury. 	Disability in the use of his eyes at 35%. He was awarded K5, 000.00 for the bruises and K20, 000.00 for the eye injury.	
3	Robert Brown v. Motor Vehicles Insurance Limited (1980) PNGLR 409. 	The plaintiff received neck injuries, with a stiff neck was paid K18, 000.00 and K9, 331.13 for economic loss. 	He was awarded K18, 000.00 and K9, 331.13 for economic loss.	
4	Sipa Toea Are v. Motor Vehicle Insurance Limited (1991) PNGLR 456	The plaintiff suffered injury in lumba spine with a 15% disability. He was awarded K12, 000.00 and economic loss at K7, 000.00. 	Lumbia spine 15% He was awarded K12, 000.00 and economic loss at K7, 000.00.	
5	Omben Kumbo v. Motor Vehicle Insurance Limited (2005) N2860. 	The plaintiff received very serious neck injuries in a Motor Vehicle Accident, which rendered him a quadriplegia. In this case, the court awarded K280,000.00 general damages, but reduced to statutory limit of K150,000.00	He was awarded K280,000.00 general damages, but reduced to statutory limit of K150,000.00	

Defendant’s comparable list 
No 	Cases 	Details 	Assessment	
1	Brown v. Motor Vehicle Insurance (PNG) Trust [1982] PNGLR 409	The plaintiff sustained neck injuries as a result of a motor vehicle accident and wore neck semi-brace for three (3) months. For pain, suffering and loss of amenities, K18, 000.00 was awarded as general damages. Prior to the accident, the plaintiff was employed under a contract as a spare parts manager thus the court awarded him K9,331.13 for loss of wages (from date of accident) and rent. 	K18, 000.00 was awarded as general damages. Prior to the accident, the plaintiff was employed under a contract as a spare parts manager thus the court awarded him K9,331.13	
2	Nidop v. Motor Vehicle Insurance (PNG) Trust [1989] PGNC 73 	The plaintiff was knocked unconscious by a fork lift and suffered a laceration to his head including head aches and a stiff neck. He was awarded K8, 000.00 in general damages for pain, suffering and loss of amenities. 	Awarded K8, 000.00 in general damages 	
3	Nui v. Motor Vehicle Insurance (PNG) Ltd [1992] PGNC 8; N1044 	Where the plaintiff aged about 40 was ran over by a motor vehicle and sustained rib injuries. He also experienced chest pains and the doctor who examined him estimated a 15% body impairment though the Court found that the injuries weren’t serious. He was awarded K6, 000.00 for general damages. 	He was awarded K6, 000.00 for general damages.	
4	Peter Nangain v. Shorncliffe (PNG) Limited [2001] PGNC 83; N2121 	Where plaintiff aged 20 drove into a heap of rubbish and gravel left by the defendant on the road and sustained injuries to his nose, left knee and chest. The court noted that the plaintiff would suffer a permanent facial disfigurement to his nose thus, K9, 500.00 was awarded as general damages.	K9, 500.00 was awarded as general damages.	
5	Tamaru v. Alert Security Services [2002] PGNC 133; N2200 	Where plaintiff a motor mechanic, was assaulted and suffered bruises to the left side of his neck, head and ears, he was given a 15% impairment. The Court awarded K2, 000.00 as general damages. Plaintiff’s claim for Future Economic loss was refused on the basis that it was not pleaded in the Statement of claim. 	K2, 000.00 as general damages. Plaintiff’s	
6	Kawage v. Motor Vehicle Insurance Ltd [2016] PGNC 159; N6351 	Where plaintiff aged 65 sustained injuries from a motor vehicle accident. He suffered fractures of the rib bones and was diagnosed by Dr. Kulunga who rated a 15% disability in the effective use of plaintiff’s chest in terms of carrying heavy load and a 5% disability in the effective use of the hip joint. The court awarded K10, 000.00 in general damages for pain suffering and loss of amenities. Prior to the accident, the plaintiff was a villager/subsistence farmer thus the Court took into account the depreciation in kina value and rising cost of living and awarded K8,000.00 for economic loss. 	The court awarded K10, 000.00 in general damages for pain and cost of living awarded K8,000.00 for economic loss	

89.    The principles relating to general damages are well established and are set out in number of leading cases in our jurisdiction. The courts in this jurisdiction have made awards in   similar injuries mentioned the above heads of damages. The case of Robert Younger Kerr [1979] PNGLR 251 discusses the general principles applicable on the assessment of general damages and Costello v. Talair [1985] PNGLR 65. The issue therefore to determine is what is the appropriate damages the plaintiff should be entitled to? To start off with assessment of damages can only be for matters as pleaded and awards can only be made for matters pleaded and proven. To appropriately answer the above, it will be necessary to set out the background particulars of the plaintiff. 

90.    As a matter of   practice and principle case authorities have also supported the notion that awards for general damages for pain and suffering ought to increase to reflect the inflation costs. Case authorities here have supported the above proposition that inflation is a relevant consideration in the assessment of general damages. In the English case of Pickett –v- British Rail Engineering Ltd (1978) 3 WLR 955, the court said;-

“Increase for inflation is designed to preserve the “real” value of the money, interest to compensate for being kept out of that “real” value. The one has no relation to the other. If the damages claimed remained, nominally the same, because there was no inflation, interest would normally be given. The same should follow if the damages remain in real terms the same.”

This case was followed and cited with approval in various judgments in our jurisdiction. See the case of Aundak Kupil v. The State (1983) PNGLR 350, Shelly Kupo v. MVIT (2002) N2282 and Roselyn Cecil Kusa v. MVIT (2003) N2328. In the Supreme Court case of Andrew Moka v. MVIL (2004) SC 729, the Supreme court discussed the effect of inflation on assessment of general damages in the following manner;- 

“We are of the opinion that in the light of high rate of inflation existing at the present time the court ought to consider that as a factor in considering awards for general damages for pain and suffering. We consider that due to inflation, the award for general damages for pain and suffering ought to be much higher than what the court was awarding in 1988 and 1998.... Accordingly, our view is that, general damages for pain and suffering should be higher than claimed in this case.”

91.      Having said that I note the principles stated above. In in a previous case of Kawage v. MVIL (2016) PGNC159; N6351. I awarded K10, 000.00 for general damages. I distinguish that case from this case on the basis that the plaintiff in that proceeding was injured in 1999 approximately 5 years earlier on than the current cause of action which arose on the 6th January 2003. That simply meant that the former suffered longer than the latter. Considering that case and the comparable cases cited. I assess general damages at K13, 000.00. 

Economic Loss 

92.    The plaintiff submits he has suffered economic loss at the rate of K50.00 per week for the past 11 years which totals K20, 000.00. For future economic loss, it submits the loss of K5, 000.00 weekly for the next 24 years will be in excess of K30, 000.00. However for purpose of settlement it submits a global sum of K20, 000.00 for both past and future should suffice. The defendant submits an award of K8, 000.00 is sufficient and relies on the recent case of Kawage (supra) where the court awarded K8, 000.00. Considering the awards in the above cases, I award K12, 000.00 for past and future economic loss. Apart from the Kawage case which was few years later the other cases relied on are 
well over 20 years old. The kina value has dropped and the cost of living has gone up drastically. 

Special damages 

93.      It is settled law that special damages must be pleaded and strictly proven. Courts have however made awards in cases where despite the lack of evidence the claim was reasonable. Jackson Tuwi v. The State & Ors N3901. In this instance despite the lack of receipts, the out of pocket expenses are reasonable. I accept and award K1, 050.00 special damages as claimed. 

Interest 

94.     Interest on the general damages is charged at 8%. 8% on K13, 000.00 for 13 years is K13, 520.00 which is K1, 040.00 per year which is K86.00 per months. Interest on damages for the last 13 years, 8 months from date of filing of proceedings on 17th February 2004 to 27th September 2017 the date of Judgment is K14, 208.00  

95.      I award the total claim as follows; 

a.	General damages                 K13, 000.00. 
b.	Economic loss-global          K12,000.00
c.	Special damages                  K1,050.00
d.	Interest                                 K14,208.00 

              Total award is at                    = K40, 258.00 

96.     Costs is awarded to the plaintiff to be agreed if not taxed.

Ruling accordingly.
Paulus M Dowa Lawyers: Lawyer for the Plaintiff     
Warner Shand Lawyers: Lawyer for the Defendant