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Sinowa v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 15; N980 (4 June 1991)

Unreported National Court Decisions

N980

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 460 OF 1988
SINOWA
V
MOTOR VEHICLES INSURANCE TRUST

Mount Hagen

Woods J
19 March 1991
4 June 1991

NEGLIGENCE - Motor Vehicle Accident - Passenger on back alighting when vehicle drove off - Liability - No proof of negligence.

Cases Cited

Pyayakon Yomo v The State and M.V.I.T. N812

Counsel

P Kopunye for Plaintiff

R Thompson for Defendant.

4 June 1991

WOODS J: The Plaintiff is claiming damages for injuries received when she fell off a motor vehicle onto the roadway such being caused by the negligent driving of the motor vehicle. The mvehicle was a Datsun tsun 1600 Registration No ADY 805 driven by Tom Sevelove.

The Plaintiff's story is that she was riding as a passenger on the back ofmotor vehicle from Banz to Kudjip. At Kudjip she was was in the act of alighting from the vehicle when the driver drove off before she had fully alighted and she was thrown to the roadway and suffered injuries to her shoulder.

Whilst in her story tates she was taken to Moun Mount Hagen General Hospital that day following the accident she has produced no evidence that she sought or obtained any medical attention that day. The first evi of any medicmedical attention sought was the Report from Dr Seta from Mt Hagen General Hospital which noted that she said she was involved in a motor vehicle accident on the 28th November 19860; "However she did not seot seek any medical attention till the first week of January 1987. As visit she was found to d to have a dislocated right shoulder". The Doctor goes on to say "close reduction was attempted on two occasions with no avail.& This was expected as she presented very late".

Init>Initially therefore the medical evidence does not support her involvementny particular accident on 2 on 28th November, 1986, it is only a hearsay reference.

There is a Police Road Accident Report of an accident involving the Plaintiff and the said motor vehicle although this report appears to have been compiled 2 months later. There was no attempt by lae Plaintiff to bring evidence to explain this delay. The Poliport seems to be b be based completely on what a police officer was told 2 months later so it is an unreliable report. I refer e case Pyayakanyakan Yomhe State and M.V.I.T. N812 where the Plaintiff went to t to great lengths to obtain the policeman who completed the Report in thae to explain the errors and omissions in that Report. #160; The e Accident Reporteport here gives a different version of how the Plaintiff fell off to the version given by the Plaintiff in Court.

The Plaintiff's story is that the motor vehicle picke and some others up at Banz Banz although it was not registered to operate as a PMV. She cannothow many people ople were on the back. When it arrived at Kudjiryeveryone got out of the back and she suggests that after everyone had got out she was getout on the offside when the driver drove off. She saie said she had oot foot on the ground and the other on the vehicle and was still holding onto the side of the utility back. The jerk of the ve moving ving off threw her onto the ground. However taintiff alates thes that what while the vehicle was stopped at Kudjip the driver had got out and checked the people getting off.&#160the d had done what anat any careful driver would do, got out and checked his passengers off andf and then supposedly satisfied that all who wanted to get off had done so he then got in and drove away. So can one assume that if he had so got out and checked and then got back in that must have given plenty of time for everyone who wanted to get off to do so. Why was the Plaintiff ow and late in getting off. She provno explanatianationation. So wa driver negligent, itt, it seems he took the precautiot any driver with passengers in the utility back would take, namely he got out and checked.cked.

The Plaintiff brought witnesses toort her story. Whilsthilst bothand Joe gioe give the same basic story that when the Plaintiff wanted to get off and put one foot on the ground the driver drove off and she fell to the ground, neither of them give any explanation as to how she happened to be last off and why she took so long when the driver himself got out of the cab and came and checked the back.

Whilst this is an action provided for under the law against the compulsory Third Party Insurer such insurance is not a no fault liability protection. This compulsory inse ensurensures that the victim of negligent driving would not go empty handed because the defendant lacked the financial resources to meet the obligation. It hthe system of claims fims for negligent driving work but it does not change the system itself. fore there must be some elme element of negligence or some way one can assume some negligenp>

However has the PlainPlaintiff proved negligence here. There a many conflicts in s in the evidence that I am not satisfied that there is any negligence at all in the driver of the vehicle supposing she was even on the vehicle. By the evidence he happed and got out and checkehecked the back of the vehicle before getting back in and driving off. Ev her story is true tha wtha was on the vehicle then and got off after everyone else it appears as if she must have lede led the driver to believe she was not ge off and then changed her mind. And then the 2 piecesieces of evidence one normally has to support such a case are not here or conflict, namely the Police road Accident Report and the medical evidence.

The Police Report which appears to have been ced some 2 months later actu actually contradicts the Plaintiff's version and implies no negligence in the driver at all. Then tis no evidence of seof seeking medical attention immediately after the accident only talk of going to the hospital but no evidenll an attendance 2 months later.

So even if she was on the vehicle that day alleged eged I am not satisfied that if she fell as alleged that the incident was caused by the negligent driving of the driver of the vehicle. There are too many conflicts and gaps to make out a case of negligence. I dismiss the Plains claimclaim and find for the Defendant.

Lawyer for laintiff: Kopunye Lawyers

Lawyer for the Defendant: Young & Williams

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