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Waine v Motor Vehicles Insurance (PNG) Trust [1993] PGLawRp 551; [1993] PNGLR 446 (19 February 1993)

PNG Law Reports 1993

[1993] PNGLR 446 - Kamtai Waine v MVIT�

[1993] PNGLR 446

N1134

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KAMTAI WAINE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

25-26 January 1993

19 February 1993

NEGLIGENCE - Liability - Motor vehicle accident - Proof of registration and insurance.

DAMAGES - Death - Dependency claim - Widows and children - Provincial minister - Salary on which to base future loss.

Facts

This is a claim for damages by three dependent wives and three infant children of a provincial minister who died from injuries received whilst he was a passenger in a motor vehicle which went out of control and plunged down a slope into a river. A police witness gave evidence that due to the condition of the road and the bad weather there was nothing the driver could have done to stop the vehicle sliding off the road. No charges were laid against the driver. The police witness also gave evidence he recorded the vehicle's registration number and expiry date and noted that there was a third party insurance. There was, however, no safety sticker. He had sighted the registration papers, but did not conduct a search of the traffic registry. The defendant submits that the vehicle has not been properly identified.

Held

N1>1.������ The driver, on the balance of probabilities, was negligent. If an earth road is in bad condition and there has been recent rain, there is a greater onus on the driver to take care when driving.

N1>2.������ Unchallenged oral evidence of a police witness as to the registration number, expiry date of such registration, the existence of a third party insurance policy and registration papers is enough evidence to satisfy the court as to the identity, registration, and insurance of the vehicle on the balance of probabilities, notwithstanding the lack of a safety sticker and a traffic registry search.

N1>3.������ The deceased was a provincial politician and, notwithstanding that his future as a Minister was uncertain, the court may use the salary figures at the date of death to calculate future loss, as he was a leader in the community.

Cases Cited

Alo v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 487.

Counsel

DL O'Connor for the plaintiff.

A Kandakasi for the defendant.

19 February 1993

WOODS J: This is a claim on behalf of the widows and children of Yuale Gikau, who it is alleged died from injuries he received in a motor vehicle accident on 22 March 1990. He was a passenger in a motor vehicle, registration AGE 890, driven by Gikau Yuale, which went out of control and plunged down a river bank on the Dege Paume road in the Simbu Province between Gomgale village and the Gumine township.

The lawyer for the plaintiff indicated to the court at the beginning of the trial that the named plaintiff Kamtai Waine, who was the first wife of the deceased, had died a month ago. In view of the difficultues of ascertaining who is entitled to act on behalf of the estate of the plaintiff and in the circumstances of PNG, I feel it is appropriate in a dependency claim like this, where the plaintiff was putting her name forward as the initiator of these proceedings, to substitute the second wife, Polo Del, as the plaintiff.

The witnesses for the plaintiff as to the circumstances of the accident were a passenger and the police officer who did the investigation into the accident. The passenger said that she was on the back of the Toyota utility when there was some loose gravel and the road was slippery. She said that she and two others who were on the back of the utility jumped off when the vehicle got into trouble and they do not know what happened to it after that, as it was at night-time. The main evidence of the circumstances of the accident comes from the police constable, who investigated it the next day, so, unfortunately, we are left with mainly the hearsay evidence from him and his theories based on the signs he saw at the scene. He describes the road as a very narrow earth road and the scene was a slope after crossing a river. It was very muddy and it had been raining, so the road surface was very slippery. In attempting to negotiate the slope, the vehicle slipped sideways and then off the side of the road down into the river. The constable felt that from the condition of the road and the weather there was nothing the driver could have done to stop the vehicle sliding off the road and, therefore, he felt he could not lay any charges against the driver.

Firstly on the identity and registration and insurance of the vehicle involved the Motor Vehicles Insurance (PNG) Trust (hereafter the Trust) submits that the vehicle has not been properly identified so there can be no basis to the claim. The evidence from the policeman is that he came to the scene the next day and saw a Toyota Landcruiser utility in the river at the base of the cliff beside the road, and that it was very badly smashed in and was a complete write-off. In his road accident report, he recorded the registration number of the vehicle as AGE 890 and that the registration expiry date was 29-12-90. He also noted that there was a third party insurance policy and recited the number and that it was issued at Kundiawa. However, he did note that there was no safety sticker attached to the vehicle although he said that the windscreen was smashed. When asked whether he had sighted the registration papers, he said he had, somebody had brought them in to him. He said he did not do a search of the traffic registry, the implication being that he did not need to as he had seen the registration papers.

Is this enough evidence to satisfy the court as to the identity, registration and insurance of the vehicle? This court must be satisfied on the balance of probabilities. I have the policeman's evidence of the particulars as given to him. This is different to the case of Alo v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 487, where the judge found that there were inconsistencies in the evidence, namely the driver giving a different version of the events. In that case, the judge found he could not be satisfied. However, in the case before me now, where the owner of the vehicle has been killed and I have clear uncontraverted evidence from the policeman, I am satisfied on the balance of probabilities. The policeman must have been satisfied, as he made no suggestion of any charges for driving an unregistered and uninsured vehicle. The confusion amongst other witnesses as to when the deceased had acquired the vehicle does not create any conflict over the registration. The fact that he did not drive himself does not create any difficulties, as I find nothing unusual in an older leader acquiring a vehicle but relying on relatives or others to drive for him. Faced with the clear statement and satisfaction of the policeman that he had seen certain documents and obtained certain numbers, it was always open to the Trust to produce evidence from its own records that the particular insurance policy number was not current or did not belong to the subject vehicle.

The Trust submits that the medical evidence suggests that the deceased may have been the driver of the vehicle at the time of the accident and, thus, he cannot claim against himself. The post mortem report is of severe chest injuries, mainly on the right, and a laceration on the right forehead and right arm injuries. The Trust submitted that those injuries are more consistent with a driver hitting a steering wheel rather than a passenger in the lefthand side of a vehicle which lands on its left side in a river. However, here we have a vehicle that falls down a 25 metre slope into a river, and who can be sure what happens to human beings trapped inside the cabin in such a situation. All the family agree that the deceased did not know how to drive a vehicle, and I think, on the balance of probabilities, I have to accept the conclusion from that.

The Trust submits that the evidence of the accident and of the condition of the road indicated no negligence in the driver. The Trust submits that the accident was caused by the condition of the road. Whilst it is quite clear that the road was a very bad and difficult road, that means that there is a greater onus on the driver to take care. Obviously, over the years other drivers have successfully navigated that section of road. The greater the danger the more the care the driver must take, and I am satisfied that the driver could have managed on this section of road if he had shown more care or been more experienced. I am satisfied that the driver was, on the balance of probabilities, the negligent party here in his handling of the vehicle.

I am satisfied that the driver was responsible for the death of the deceased and that the Trust is thereby liable.

ON DAMAGES

This is a dependency claim on behalf of the three remaining wives and three infant children. The deceased was a village man who had been elected to the last two Provincial Assemblies and was a minister in the current Assembly. The current Assembly term only has about 6 months to run. His salary as a minister was net K435 per fortnight. The evidence from the wives was that they worked in their gardens and produced vegetables for the family. Two of them referred to selling some vegetables for the family at the local market. However, they also say that the deceased used to give them some money each fortnight from his salary. The Trust submits that he could not have spent all his salary on his family as he had to spend some of his income on his supporters.

The ages of his wives and children as at the date of his death are assessed as follows:

Polo Del, aged about 40, her children Yuale Yuale, 10 and Kua Yuale 3; Korai Gena about 32, with one child Bomaigi Yuale 9; Apalgi Elwi, about 27. The deceased was about 48 years old at the date of his death. So he would have had about 7 more working years ahead if we use public service ages to go by. But he was a politician, with all the uncertainties that entails. His current position as minister would only have been certain till the middle of 1993. However, as a man who had attained such a position, I am entitled to assume that he would have continued to provide for his family in some way for some years. This would be balanced by the fact that, having three wives, much of the basic necessities of food would have been provided by the wives.

The wives gave evidence of receiving amounts of K100 and K30 each fortnight from his salary. I think I am entitled to use those figures as the basis of the loss incurred by the wives for themselves and for their children by the death of the deceased. And even though his present term of office may have terminated sometime in 1993, I can still use those figures as a basis for a leader like him.

On the above figures and principles, and in accordance with principles applied in other cases, I calculate the loss as follows. I give a slightly higher contingency for the wife, Apalgi Elwi, as she is younger and has no children.

The loss to the date, being for two years and 48 weeks, for each of the three wives, Polo Del, Korai Gena and Apalgi Elwi, at K30 each per week plus interest at 4 percent is K5,093.16. For each of the three children, Yaule, Kua and Bomaigi, at K10 each per week plus interest at 4 percent, it is K1,697.72.

FUTURE LOSS IS AS FOLLOWS

Name

Past Loss

Total

Share Est Claim

Total

Polo Del

K5,093.16

K10,116.66

250

K9,866.66

Korai Gena

K5,093.16

K10,116.66

200

K9,916.66

Apalgi Elwi

K5,093.16

K9,193.78

200

K8,993.78

Yuale Yuale

K1,697.72

K3,569.22

100

K3,469.22

Kua Yuale

K1,697.72

K3,569.22

100

K3,469.22

Bomaigi Yuale

K1,697.72

K3,569.22

100

K3,469.22