N9973

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 701 OF 2019

BETWEEN
ROSE JOHN
Plaintiff

AND
MOTOR VEHICLE INSURACE LIMITED
Defendant

Waigani:  Linge AJ
2022:  28th September, 5th October

PERSONAL INJURIES -	motor vehicle injury - collision of public motor vehicles (buses) - claim against the Motor Vehicle Insurance Trust Limited as the successor company – no evidence to prove negligence 

PLEADINGS – material facts not pleaded - primary evidence not properly before the court -   reliance on hearsay evidence – inadmissibility of evidence 

The plaintiff alleges she was a passenger in a “25-Seater Coaster Bus” on the Okuk Highway section of the road when the bus she was in collided with another coaster bus travelling the opposite direction. She alleges that the collision was the result of the driver being negligent in his driving.  As a result of this collision, she sustained injuries to her body.  She claims she sustained a fracture of the distal radius of her left forearm or mid-shaft left ulnar/radius. The claim is against the Motor Vehicle Insurance Trust Limited (hereinafter as “the Act”) the successor company and not against the owner of either of the two (2) buses. 

Held: 
1	The Statement of claim has not pleaded all the material facts necessary to establish a cause of action against the Motor Vehicle Insurance Trust Limited, the successor company.
2	The plaintiff has not proved that her injury arose out of the use of a vehicle and the vehicle was insured or if motor vehicle was uninsured, the accident occurred in a public street.
3	She has not satisfied all the five (5) elements required for negligence and thus not discharged the onus on the balance of probability that the driver was negligent.
4	The reliance on the lawyer as a primary witness is futile to her case.   
Cases Cited:
Papua New Guinean Cases

Kints –v- Nukundi [2001] PGNC 88; N2113
Moses v Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 63
Tuman v Motor Vehicles Insurance Ltd [2017] PGNC 375
Kumbe v Motor Vehicles Insurance Ltd [2005] PGNC 110; N2860
Papua New Banking Corporation Limited v Jeff Tole (2002) SC 694
Kembo Tirima & Others v Angau Memorial Hospital Board & State (2005) N2779
Baikisa v. J & Z Trading Ltd [2016] N6181
Tony David Raim v Simon Korua (2010) SC1062
Mel v Pakalia [2005] SC790
Natonal Provident Fund Board of Trustees v Jimmy Maladina & Ors (2003) N2486
Motor Vehicles Insurance (PNG) Trust Ltd –v- John Etape [1994] PNGLR 596
Motor Vehicles Insurance (PNG) Trust Ltd –v- James Pupune [1993] PNGL] 370 
Het Pakena v The State and Ors (1995) N1369

Overseas Cases:
Subramaniam v Public Prosecutor [1956]1 WLR 965

Counsel:
Mr.B. Koae, for the Plaintiff
Ms. B Kumo, for the Defendant

JUDGEMENT

5th October, 2022

1.	LINGE AJ: This is a judgment of the Court on a trial on liability for personal injuries sustained by the plaintiff allegedly caused by the collision of two (2) public motor vehicle buses along the Okuk Highway.
Facts
2.	The plaintiff alleges in the Amended Statement of Claim that on 17 October 2017, she was travelling as a passenger in a “25-Seater Coaster Bus” on the Okuk Highway section of the road when the bus she was in collided with another coaster bus.
3.	The plaintiff alleges that the collision was the result of the driver being negligent in his driving.  Hence, the plaintiff claims that as a result of this collision, she sustained injuries to her body.  She claims she sustained a fractured mid-shaft left ulnar/radius.
4.	The plaintiff is claiming against the Motor Vehicle Insurance Trust Limited (hereinafter as “the Act”) the successor company and not against the owner of either of the two (2) buses. 

Evidence
For the plaintiff 

5.	The plaintiff will rely on the following affidavits:

i.	Affidavit of Bernard Koae filed 25 February 2020
ii.	Affidavit of Rose John sworn 20 July 2022 and filed 27 July 2022; and
iii.	Affidavit of Rose John sworn and filed 2 September 2022.

For the Defendant

6.	The defendant seeks to rely on the affidavits filed by the plaintiff. 

Submissions

For the Plaintiff
7.	Mr. Koae for the plaintiff contends that the plaintiff was a passenger in the vehicle that was travelling from Mendi to Mt. Hagen.
8.	As a result of the collision the plaintiff was injured along with other passengers and was admitted at the Mt. Hagen Provincial Hospital.  She was diagnosed with a fractured mid shaft ulnar/radius as confirmed by x-ray.
9.	Counsel submits that this claim is not for negligence of any of the drivers of the vehicles but against the Motor Vehicle Insurance Trust Limited under the framework of the Motor Vehicles (Trust Party Insurance) Act Chapter 295, (the Act) the relevant provision under which the claim is made in Section 54 (1) of the Act.
10.	Mr. Koae contends that this negligence claim is made against the successor company as defined by Section 1 of the Act as MVIL and not against the owner or driver of any of the motor vehicles and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.
11.	Counsel submits that the injury sustained by the plaintiff was a result of the negligence of Vehicle 2 driver as provided in the evidence in the Police Accident Report compiled by First Constable Theresia Wia from Mt. Hagen Highway Patrol.
12.	Mr. Koae further submits that according to the Police Accident Report, the plaintiff and other passengers were in Vehicle 1 travelling to Mt. Hagen that collided with Vehicle 2 which bus was travelling to Mendi town on the fateful date of the accident along the Okuk Highway at 3pm on the 17 October 2017.
13.	He submits that Vehicle 2 was driving on the lane of Vehicle 1 and when realizing the oncoming vehicle1, the driver of vehicle 2 was too late to change lane resulting in both 25-seater buses colliding and causing injuries to its passengers including the plaintiff.

For the defendant
14.	Ms. Kumo for the defendant submits that the only affidavit that contains the relevant facts is the affidavit of the lawyer of the plaintiff, Bernard Koae sworn 20 February 2020 and filed 25 February 2020.  She objected to the reading of the affidavit and submits that it is inadmissible as it contains hearsay evidence.
15.	In respect of the two (2) affidavits deposed to by the plaintiff, Counsel submits that they do not provide evidence to establish the following:
(i)	Cause of action.

(ii)	Tortfeasor.

(iii)	Time and place of road accident.

(iv)	Whether she was a passenger of the vehicle or pedestrian who sustained injuries as a result of the accident.

(v)	Negligence.

(vi)	Injuries sustained.

(vii)	Treatment received.

(viii)	Weekly earnings. 

(ix)	Special damages

16.	In relation to the Road Accident Report and the Medical Report Counsel contends that they are not properly adduced as evidence before the Court.  These are merely annexed to the affidavit of the plaintiff and the lawyer.  In both scenarios she submits the evidence they purport are hearsay evidence and inadmissible.
17.	In support for that contention she cites Kints v Nukundi [2001] PGNC 88; N2113 where late Justice Davani refused to award damages as the evidence before the Court was inadmissible based on it being hearsay.  Several of the plaintiffs annexed the medical report without putting into evidence an affidavit by the deponent medical practitioner annexing the medical report.  
18.	Ms. Kumo contends that the plaintiff bears the onus of proof to establish the cause of action and the elements of negligence.  Thus, in as far as both the pleadings and the evidence before the Court, she submits the plaintiff has failed to establish the cause of action and the elements of negligence. This proceeding is an embarrassment, vexatious and frivolous and ought to be dismissed on this basis alone.
19.	In regard to the plaintiff’s claim being based on Section 54 (1) of the Motor Vehicle (Third Party Insurance) Act (Chapter 295) (the Act), she submits that  a person making a claim for damages for bodily injury under the Act has the onus of proving that the injury was caused by or arose out of the use of a motor vehicle in the circumstances prescribed by Section 54 (1) of the Act. 
20	Counsel refers me to Moses v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 84; [1993] PNGLR 63 and Tuman v Motor Vehicles Insurance Ltd [2017] PGNC 375; N6923. The Court affirmed the three (3) prerequisites that must be proved:
“To take an action against the Motor Vehicles Insurance Trust for damages for injuries received in a motor vehicle accident, it is necessary to prove three things:  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.”
21.	For purposes of proving a cause of action where negligence is pleaded Counsel submits that the plaintiff must satisfy the five (5) elements of negligence being: 
(i)  The driver owed a duty of care to the plaintiff.

(ii)  The driver breached that duty, i.e. was negligent.

(iii)  The driver’s negligent conduct caused injury to the plaintiff.

(iv).  The plaintiff’s injuries were not too remotely connected to the driver’s conduct; and

(v)  The plaintiff has not contributed to own injuries. 

22.	Counsel submits the plaintiff has not satisfied all the five (5) elements and thus not discharged his onus of proving that the driver was negligent and on that basis the Court ought not to grant these reliefs as sought by the plaintiff.
23.	Further she submits that the plaintiff has not clearly pleaded the facts in the Amended Statement of Claim. She gave an example of the non-identification of the drivers of the two (2) vehicles involved a collision as per the Road Accident Report (RAR). Counsel points out that the RAR included the plaintiff as a passenger in Vehicle 1. However, the pleadings do not disclose which driver was at fault. However, as she has submitted the RAR is hearsay and inadmissible. 
24.	Counsel refers to the ruling in Papua New Guinea Banking Corporation (PNGBC) v Tole [2002] PGSC 8; SC694, in which Justice Kandakasi (as he then was) aptly stated:
“The law on pleadings in our jurisdiction is well settled.  The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed.”
25.	She submits that the pleading is defective and ought to be struck out or be dismissed for not establishing the tortfeasor.
Consideration
26.	The plaintiff’s claim is against the Motor Vehicle Insurance Limited (MVIL) as provided for by virtue of Section 54 (1) of the Motor Vehicles (Third Party Insurance) Act Chapter 295. The pertinent section states: 
“Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of-
(a)	motor vehicle insured under the Act; or
(b)	an uninsured motor vehicle in a public street; or
(c)	a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established, shall be made against the successor company and not against the owner or driver of the motor vehicle and, subject to Subsection 5, any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle” [my underlining]
27.	The plaintiff must prove that his injury arose out of the use of a vehicle and the vehicle was insured or if motor vehicle was uninsured, the accident occurred in a public street.
28.	In summary a claimant under Section 54 (1) is required to prove the following:

(i) 	it is a claim in damages;

(ii)	for bodily injury to a person;

(iii)	arising out of use of a motor vehicle ;

(iv)	motor vehicle was insured under the Act

(v)	the claim is made against the defendant and not the owner or driver; and

(vi)	proceeding to enforce the claim is taken against the defendant and not against the owner or driver. 
29.	Numerous cases have reaffirmed this proposition for example in Moses v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 84; [1993] PNGLR 63; Kumbe v Motor Vehicles Insurance Ltd [2005] PGNC 110; N2860 and Tuman v Motor Vehicles Insurance Ltd [2017] PGNC 375; N6923 wherein the Court affirmed the three (3) prerequisites that must be proved:
“To take an action against the Motor Vehicles Insurance Trust for damages for injuries received in a motor vehicle accident, it is necessary to prove three things:  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.”
30.	Even though the claim is against the MVIL and not the driver or owner, it is trite learning that the plaintiff must prove that a particular driver committed the tort of negligence. It requires the plaintiff to establish liability and for that he/she needs to satisfy the five (5) basic elements of the tort of negligence: 
(1)	The driver owed a duty of care to the plaintiff;
(ii)	The driver breached that duty, i.e. was negligent;
(iii)	The driver’s negligent conduct caused injury to the plaintiff;
(iv)	The plaintiff’s injuries were not too remotely connected to the driver’s conduct; and
(v)	The plaintiff has not contributed to own injuries.  
See Tuman v Motor Vehicles Insurance Ltd (supra) and Kumbe v Motor Vehicles Insurance Ltd (supra), and Kembo Tirima & Others v Angau Memorial Hospital Board & State (2005) N2779 and Baikisa v. J & Z Trading Ltd [2016] N6181
31.	I will pause momentarily to consider the procedural requirement by reverting to the pleading to ascertain whether the foundation of the plaintiff’s case is established. The issue is whether the material facts are sufficiently particularized. As a trial judge I must be satisfied upon a cursory inquiry into the pleadings contained in the Amended Statement of Claim whether the material facts or the facts in issue and the cause of action are pleaded with sufficient clarity, see Mel v Pakalia [2005] SC 790.
32.	The Supreme Court in Tony David Raim v Simon Korua (2010) SC1062 reaffirmed this principle when it held:
“in order to prove these elements, the general rule of pleadings is, a party must first sufficiently plead the material facts establishing the elements by particularizing them.”
33.	The Supreme Court went further to state “pleadings lay a foundation of a cause of action and act as a means of informing the opposing party of what to expect at trial.  They give the opposing party the opportunity to identify the issues for trial and the kind of evidence to be led at trial”
34.	In Papua New Guinea Banking Corporation Limited –v- Jeff Tole (2002) SC694 the Supreme Court in deciding on a contract matter held that no evidence of those contracts can therefore be allowed by the Court as these have not been pleaded. It reaffirmed the law as:
“The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed.” 
35.	A plethora of National Court decisions follow this trite learning for example in the National Provident Fund Board of Trustees –v- Jimmy Maladina & Ors (2003) N2486; Motor Vehicles Insurance (PNG) Trust Ltd –v- John Etape [1994] PNGLR 596; and Motor Vehicles Insurance (PNG) Trust Ltd –v- James Pupune [1993] PNGL] 370. 
Conclusion
36.	In this case there are yawning gaps in the Amended Statement of Claim. For example, the following material facts to establish the cause of action are not pleaded by the plaintiff:
(i)	Particulars of the 25-Seater coaster bus the plaintiff allegedly was a passenger in particular the registration number or PMV licence number.
(ii)  Who of the two (2) Coaster Buses driver caused the accident.
(iii)	Who of the two (2) drivers of the two (2) coaster buses was negligent.
(iv)	The particulars of the negligence do not connect to a particular driver by description and name. 
(v)	In which of the two (2) buses was the plaintiff and which direction was she travelling.
(vi)	The plaintiff did not plead the injury and how she sustained it.
37.	In my view the above glaring examples of lack of particulars in the pleadings upon a cursory glance of the Amended Statement of Claim reveals a lack of attention by the plaintiff in laying the foundation of her case.
38.	She has not complied with the procedural requirements of Order 8, rules 29 (1) and 32. of the National Court Rules which provides:
“Rule 29 (1)   A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him…
Rule 32 (1)	 In proceedings on a claim for damages in tort, a party pleading negligence (whether contributory or otherwise) or breach of statutory duty shall give particulars of the matter pleaded.
39.	This noncompliance of a procedural requirement on the part of the plaintiff does not entitle her to lead evidence. The cause of action is lacking the material facts to warrant any evidence to be lead. The result is that the plaintiff cannot discharging the onus of proving the basic elements of the tort of negligence on the balance of probability. 
40.	It follows that the plaintiff ability to prosecute her claim pursuant to Section 54 (1) of the Motor Vehicle (Third Party Insurance) Act (Chapter 295) (the Act) is reduced markedly as it is subject to proving negligence occasioning bodily injury to her arising out of use of a motor vehicle which she has not done. 
41.	On the other hand, the defendant is prejudiced and not accorded the opportunity to plead its defence and identify the issues and evidence to lead at the trial.  For example, if it were pleaded that one of the 25-Seater coaster bus in which the plaintiff was a passenger bear a particular registration number or PMV licence number, this would trigger the defendant to plead or lead evidence in respect of that part of the pleading. 
Hearsay Evidence 
42.	Even if I take the view that the Amended Statement of Claim adequately pleads the cause of action, I am not satisfied that the primary evidence for the plaintiff is properly before the Court. 
43.	The plaintiff had not deposed to any affidavit to substantiate her claim. In her affidavit Documents No.23, the plaintiff does not state the material facts of her case instead states at paragraph 3, “All facts and material evidence are well documented by way of Affidavit of Bernard Koae filed on the 25 February 2022 per document # 4 filed herein.” She regards the affidavit of her lawyer Bernard Koae as the primary evidence.
44.	The affidavit of Bernard Koae merely annexes a copy of the Police Accident Report dated 15 November 2017, a month after the accident and a preliminary copy of Medical Report. The Police Accident Report and the Medical Report were not introduced into evidence by way of affidavits deposed to by the authors of the respective reports. Also, he was not an eyewitness to the accident and would not have firsthand knowledge of nor the author of the reports. 
45.	Also I must mention the matter of counsel being witness in a judicial proceeding he/she is involved as counsel. It is generally accepted that a lawyer who is representing a client at a trial is not permitted to also be a witness at the same trial. There are practical and ethical reasons for example the potential of the lawyer being cross-examined and re-examined or reply. The exception, where a lawyer can act as a witness is if the lawyer is a party to the action and is appearing pro se.   
46.	 The conventional and procedural requirement for the plaintiff to prove his/her case is aptly stated by Injia J in Het Pakena v The State and Ors (1995) N1369:
“In my view, the minimum requirement in any action is for the Plaintiff himself to give admissible evidence in support of his claim…When the primary evidence of the Plaintiff is lacking, there is a serious gap in the Plaintiff’s case, all other evidence being inadmissible as being hearsay or hearsay upon hearsay”.
47.	In McGregor on Damages, (Sweet & Maxwell, 13th Ed, 1972, London) it states at p.935:  
“This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person case, the proof of such allegations falls on him.  Even if the defendants fails to deny the allegations of damage or suffers default, the Plaintiff must still prove his loss.”
48.	In Subramaniam v Public Prosecutor [1956]1 WLR 965 at p.779 the Privy Council held: “evidence is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.  It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made” 
49.	It is trite learning that where an oral or written statement is made otherwise than by a witness giving his own firsthand evidence in the proceeding, which is tendered as evidence of matters stated, and which is relied on in court to prove the truth of the matter stated, such a statement is hearsay evidence and inadmissible.
50. 	Here apart from the Police Accident Report there is no other evidence before the Court stating the details of the accident. Unfortunately, its admission into evidence fails the test of hearsay. The proper way to admit the Police Accident Report is for it to be considered as evidence of matters contained therein, is for its author or First Constable Theresia Wia of the Mt. Hagen Highway Patrol to depose to it by affidavit.
51.	For the Medical Report, Section 37 of the Evidence Act Chapter 48 provides a statutory basis for medical practitioners on methodology in tendering evidence. It provides the avenue by which medical evidence may be tendered.  It states: 
“37 – Evidence of scientific examination
An affidavit made by a Medical Practitioner who has made a medical, pathological or other scientific examination of his setting out-
his qualifications; and
that he has made the examination; and
the facts that he has ascertained and the conclusion at which he has arrived as a result of the examination is admissible in evidence in any legal proceedings in a Court”.
52.	Dr. Ikau Kevau who treated the plaintiff would have been the proper deponent for purposes of admitting the affidavit evidence. He would be the Medical Practitioner who has conducted the medical, pathological or other scientific examination of the plaintiff incorporating or attaching the Medical Report in compliance with Section 37, of the Evidence Act, but that did not happen.  
53.	In the end the plaintiff does not have the best evidence. Her reliance on her lawyer as a primary witness is futile to her case.  She has not proved her case on the balance of probability. 
Order
54.	I therefore order that:
1.	The plaintiff has not made out her case against the Motor Vehicle Insurance Trust Limited.
2	Cost follow the cause and is awarded to the defendant.
3	Time is abridged to the time of settlement.
Ordered Accordingly
____________________________________________________________
Eda Legal Services: Lawyers for the Plaintiff		
Jema Lawyers: Lawyers for the Defendant