N7345

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 502 OF 2014

BETWEEN:
ANDREW NEKIYE
Plaintiff

AND:
MOTOR VEHICLE INSURANCE
Defendant

Mount Hagen:   Foulds, J
2018:     06th July

CIVIL –  damages in negligence -  personal injuries claim -  duty of care -   Plaintiff must prove on the balance of probabilities breach of duty of care – plaintiff  must prove that he suffered  quantifiable damage as a result of the breach of duty of care - no direct or corroborating evidence of Plaintiff falling from back of truck - only evidence of Plaintiff’s injury is hearsay from  driver – plaintiff’s action is dismissed

Case Cited:
Papua New Guinea Cases

Alo v  Motor Vehicles Insurance (PNG) TRUST (1992) PGNC 62; N 1122 Bepiwan Ambon  v  MVIT  (unreported decision given at Wabag November 1992)
Garo Kei v Motor Vehicle Insurance (PNG) TRUST (1992) PNGLR 195
Imambu Alo v Motor Vehicles Insurance (PNG) TRUST (1992) PNGLR 487
Paru Goi v Motor Vehicles Insurance Ltd WS NO 252 of 1999

Overseas Cases

Rankine  v  Garton Sons (1979) 2 ALL ER 1185 (CA)

Legislation

MVIT Act 1974

Other References

John G Fleming Ninth Edition, The Law of Torts, LBC, Sydney 1998 p. 216 

Counsel:

Mr. Pora, for the Plaintiff
Mr. Peri, for the Defendant

06th July, 2018

REASONS FOR JUDGMENT
1.	FOULDS J:	This is an action for damages for personal injuries received in an accident on 14 February 2011.

2.	The Plaintiff alleges that 14 February 2011, at about 12:30pm, at Kondopina, at the border of Jiwaka and Western Highland Provinces, the Plaintiff was a passenger of a motor vehicle namely a Mazda Titan truck with registration HAL 252 and insurance policy number 6334592 (the truck). The truck had a sticker number 03566 which expired on 24 February 2011, whilst its registration expired on 26 August 2011; hence, the registration papers were current as at 14 February 2011. The owner/driver of the truck was Mr Nathan Bruce.

3.	The truck was travelling from Mount Hagen to Kimil in the Jiwaka Province when the driver fell asleep and lost control of the vehicle at Kondopina Village. The truck ran off the road and into the right side drain of the road causing damage to the truck and injured some passengers including the Plaintiff who sustained substantial injury. On 15th February 2011, the driver of the truck accompanied the Police to the accident site where, following an inspection of the site he was arrested and charged with driving without due care and attention. He was found guilty and fined K300.

4.	At the hearing, the Plaintiff attempted to have read into evidence his affidavit sworn on 30 July 2014 and filed on 4 August 2014. The affidavit was marked for identification but in the event was not taken into evidence simply because Mr Pora, counsel for the Plaintiff did not apply for it to be taken in prior to closing the Plaintiff's case. The Plaintiff was therefore unable to rely on the contents of the affidavit or any of the attachments which included the following:

1) 	A photograph of the Plaintiff with his right forearm encased in plaster and held in place by a sling.
2)	The Plaintiff’s adult health record book which included entries from Nazarene and Mount Hagen hospitals beginning on 14 February 2011, past history summary, hospital admissions, treatments, examination diagnosis, two medical reports from Mount Hagen and Port Moresby hospitals, copies of accounts and a road accident report from Constable Lemuel Tikai the Policeman who attended the accident site on 15 February 2011, filed on 7 March 2011.

5.	From the evidence of the driver by affidavit and cross-examination and re-examination thereon the truck was a flat tray truck with no means of restraining passengers standing or sitting on the tray. When the truck approached Kondopina near the border of Jiwaka and Western Highlands Provinces, the driver fell asleep and lost control of the truck. The truck crossed the road from left to right and ran off it and into the right hand drain coming to rest on the incorrect side of the road. Although the driver swears in his affidavit that there were many passengers at the back tray of the truck there is no cogent evidence from him or any other witness (including the Plaintiff), that the Plaintiff fell from the back of the truck or at all or that he suffered any injury as a result thereof, let alone the precise nature of any injury (he not being a medical expert). Moreover, as the Plaintiff's affidavit is not in evidence, any evidence derived from his cross-examination and re-examination, in my opinion, is not admissible.

6.	On the evidence before me, it is clear from the proven circumstances of the accident that the driver owed the Plaintiff passenger a duty of care and breached that duty of care by falling asleep while driving the truck and running the truck off the road. 

7.	Paragraph 5 of the Defendant's defence pleads contributory negligence on the part of the Plaintiff in the following terms:

(5)	 If the Defendant is liable (which is denied) the Defendant states that the injuries sustained by the Plaintiff were as a result of his own negligence; particulars which are as follows: –

       PARTICULARS OF NEGLIGENCE

(a) Failing to hold on to any solid or secure device.
(b) Failing to take a proper lookout for his own safety.
(c) Consenting to be driven by and inexperience (sic) driver.
(d) Consenting to be driven and a motor vehicle not designed to carry                 passengers.
8.	I have carefully considered the particulars of contributory negligence, especially (a); (b) and (d) and I conclude, on the balance of probabilities, that the Defendant was contributorily negligent to a substantial degree. More particularly, I find that particulars (a); (b) and (d) there being no evidence to support (c), have been made out to the extent of 40% negligence on the part of the Plaintiff.

9.	In paragraphs 5 (secondly occurring) and 6 of the defence, the Defendant also pleads fraud on the part of the Plaintiff. Proof of that allegation relies solely on circumstantial evidence and on the basis of the inadmissibility of the evidence of the Plaintiff, I am not satisfied, on the balance of probabilities that the defence has been made out. 

10.	That, however, is not the end of the matter. It is trite law that in order to succeed in an action for damages in negligence against the Defendant, the Plaintiff must prove, on the balance of probabilities, that as a result of the Defendant's breach of his duty of care to the Plaintiff, the Plaintiff suffered  quantifiable damage. "Actual damage or injury is a necessary element ("the gist") of tort liability for negligence. Unlike assault and battery or defamation, where violations of a mere dignitary interest like personal integrity or reputation is deemed sufficiently heinous to warrant redress, negligence is not actionable unless and until results in damage to the Plaintiff" John G Fleming Ninth Edition THE LAW OF TORTS, LBC, Sydney 1998 p. 216 and see Rankine V  Garton Sons (1979) 2 ALL ER 1185 (CA).

11.	In paragraphs 13, 14, 15, 16 and 23 of Paru Goi  v  Motor Vehicles Insurance Ltd  WS NO 252 of 1999 Makail J. said:

"(13). 	Section 54 of the MVIT Act 1974 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 enquiry 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 due enquiry and search." Paru Goi V Motor Vehicles Insurance LTD, WS NO 252 of 1999, N 4093.  Per 

MAKAIL, J. at paragraphs 13. and 14. 
(And in Garo Kei  v  Motor Vehicle 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 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 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 vehicle were what the driver of the motor vehicle told him following the accident. There was clear conflict of the 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 is 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 ……………………………….,
(23). 	In the present case, the Defendant contended 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." 

12.	This case, save that the Driver, being the owner, was called and gave evidence as a witness but did not give any evidence as to the period of insurance, with regard to this issue, in every material way, on all fours with Paru Goi (supra). The Plaintiff had every opportunity through his own evidence or through the owner/driver, Mr Nathan Bruce to produce and tender certificates of registration and insurance to prove the allegations made in paragraphs 1 (b), 2 and 3 of the Statement of Claim. For reasons known only to himself, however, he did not. 

13.	In view of what I have said above, for similar reasons to those given by him, I agree with the observations made and conclusions reached by Makail, J. in paragraphs 14, 15 and 23 of Paru Goi (supra).  On the basis of these omissions by the Plaintiff alone, I would dismiss the action and enter judgment for the Defendant against the Plaintiff.

14.	And see Brown  J. in Alo v Motor Vehicles Insurance (PNG) Trust (1992) PGNC 62; N 1122 (7 December 1992) at paragraph 6, page 4 where he said:

"I said in Bepiwan Ambon v MVIT (unreported decision given at Wabag November 1992) that the fact that registration and insurance required strict proof. While certificates could easily have been obtained in this case from the B.M.S., none had been forthcoming.
In Ambon's case, I said that other evidence on point, in the circumstances of the case, may be admissible. Here the Plaintiff seeks to rely on the particulars of registration and insurance set forth in the motor traffic accident report. This was clearly completed by the sergeant on information given him by the driver. Yet the driver gives a different version of events. He says he lost the documents. In this case, in the absence of proper certificates from the relevant authorities, (the BMS for registration and the MVIT for insurance), I am not prepared to make findings in favour of registration and insurance, even on the balance of probabilities. The conflict in evidence between the driver and the Policeman leaves me such that even on the civil onus I cannot be satisfied.
This case clearly shows the problems associated with a reliance on a motor traffic accident report for proof of registration and insurance. Here the Policeman says he put in the details from what he was told by the driver. No certificates were produced. In effect the assertion made to the Policeman is placed before this Court, by virtue of the written traffic report as evidence of the truth of the matters stated. It cannot be, in the Garo Kei v   MVIT (unreported N 1090), I refused to allow tender of a Police accident report in the face of an objection, when the Policeman was not called. Once the document is in, it is evidence of the matters in it. It is by its nature, compiled on hearsay, most of the time and is not the best evidence. Clearly it sounds a where certificates from the proper authorities are not obtained. The vehicle was used for hire. Particular registration requirements apply pursuant to the motor traffic regulations. Consequently we do not know if this vehicle complied with the requirements and was registered or not”.

15.	With respect, I also entirely agree with the observations made and conclusions reached by Brown, J. in Alo (supra) in the last preceding 4 paragraphs herein.

16.	In this case, without specifying which details came from whom, the investigating officer, Constable Tikai said under cross-examination that the information he got to prepare his report came from the Plaintiff and the driver.

17.	As to damages, in Moip v Motor Vehicles Insurance (PNG) Trust (1993) PG Law Rp 485 (17 November 1993) Woods, J., under similar circumstances said in  paragraphs 3 to 10 inclusive on page 2:

"This is a claim for damages for injuries received by the Plaintiff in a motor vehicle accident alleged to have happened on 21 May 1987 on a road near the Baiyer Road in the Western Highlands Province.
The Plaintiff says that on the day in question he had been on a vehicle which had driven into Mount Hagen to sell coffee. After selling the Coffee, they returned via the airport. There was some talk of a change of driver. On the way back to Rulna in the Dei Council area, the vehicle ran off the road and overturned. The Plaintiff says that he was sitting on the back of the utility vehicle when it overturned. He says that in the accident he suffered a broken leg. He was helped onto the road and a person driving a Hilux vehicle transported him to the hospital. That was not done straight away as it was a long way to the hospital so they stayed in the vehicle for the night and went to the hospital the next day. He was then taken to Mount Hagen Hospital. He says he was in hospital for 6 to 7 months, and the doctors had to operate on his leg and straighten the bone. He agrees that the owner of the vehicle involved was a relative. He describes the vehicle as a green Toyota Dyna. He says it was a PMV, but there were no seats in the back, as they had been taken out to easily carry the Coffee. He says that after he was discharged from hospital, he had to walk with the aid of sticks for a while.
The owner of the vehicle gave evidence of the vehicle involved being a green Toyota Dyna, registration number AET 047. He said he was not driving it, rather another man had been driving it. He says that the vehicle was being used as a PMV in spite of the registration not being a " P" registration. He was unable to produce the registration and insurance papers. He says that he received a message that the vehicle had an accident, and he went to the scene in another vehicle and transported the Plaintiff to hospital.
Two other witnesses were called, who attest to the accident and to the Plaintiff being injured in the accident.

To make a claim against the Motor Vehicles Insurance (PNG) Trust, you must under section 54 of the Motor Vehicles (third-party insurance) Act, prove that the injuries arose out of the use of either a motor vehicle insured under the act, or an uninsured motor vehicle in a public street, or a motor vehicle where the identity cannot, after due enquiry and search, be established. The Plaintiff in this case is claiming that the motor vehicle is registered and insured. He has quoted the registration number, a registration number that is confirmed by a witness, the owner of the vehicle. Whilst the Plaintiff has not produced any registration or insurance certificate to prove that the vehicle was properly registered and insured at the time of the accident, it was not necessary to prove these facts, as the Defendant, in the defence filed at paragraph 2, admits that at all material times the vehicle was insured with the Defendant pursuant to the provisions of the Act. The pleadings have thereby narrowed the issues on which to evidence need to be brought.
The Plaintiff has not presented a Police accident report to corroborate that there was an accident in which he was injured. The Plaintiff did bring a witnesses the owner of the vehicle and other persons who were on the vehicle at the time. There is no real confusion or conflict in their evidence so I have no reason to doubt, on the balance of possibilities (sic) that there may have been an accident as described.
However, can I be satisfied that the injuries alleged were so received and are a consequence from that accident? The Plaintiff claims he was admitted to Hagen Hospital for some months with serious injuries. Yet there are no hospital records to prove this or support this. Such evidence must be elementary in such a situation. And to further cast doubts on the claim, the more recent medical reports are quite ambivalent.
In such a claim, there must at least be the basic evidence. Where injuries are received, there must be contemporaneous evidence from a hospital or doctor and, possibly a Police accident report to corroborate any injuries without such, there can be no evidence on which to base a Court' s assessment."
Woods J. dismissed the claim on the basis that there was insufficient evidence to support it.

18.	In this case, as I have said before, the Plaintiff did not give evidence as his affidavit remained  "Marked for Identification 1" after the Plaintiff closed his case and was therefore not admitted into evidence before the Plaintiff' s case was closed. Likewise, the annexures thereto. Those omissions of the affidavit and the annexures resulted in the exclusion of all expert medical reports; treatment notes and opinions from suitably qualified persons at Kundjip (Nazarene), Mount Hagen and Port Moresby hospitals; a photograph of the Plaintiff with his right forearm in plaster and sling and two Police Accident Reports. Although the reports were not admitted into evidence the first Police Accident Report was from Senior Constable Lemuel Tikai from Mount Hagen Traffic Police. It was undated and did not bear a date and a signed authentication stamp from OIC Traffic in Mount Hagen. Moreover, it nominated the Plaintiff as the only passenger. The second Police Accident Report bore a dated and signed authentication stamp from OIC Traffic in Banz. It was dated 29 March 2011 and the report was produced by senior Constable Kupa Asiave. It nominated Richard Kandi as the only passenger.

19.	Having found as I have that there is no direct or corroborating evidence of the Plaintiff falling from the back of the truck and the only evidence of the Plaintiff’s suffering injury, damage or loss is hearsay from the driver and Lemuel Tikai the Investigating Police Officer. I am not satisfied on balance of probabilities that the Plaintiff fell from the back of the truck or if he did that he suffered injury, damage or loss as a result thereof. It follows that the Plaintiff's claim must fail.

20.	The Plaintiff's action is therefore dismissed and there will be judgement for the Defendant against the Plaintiff with costs.

21.	     I make the following orders:

1. That there be judgement for the Defendant against the Plaintiff.
2. That the Plaintiff pay the Defendant's costs of and incidental to the action.

Ruling and orders accordingly.
________________________________________________________________
Simon Norum Lawyers: Lawyers for the Plaintiff        
Warner Shand Lawyers : Lawyers for the Defendant