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Waine v Motor Vehicles Insurance (PNG) Trust [1993] PGNC 1; N1134 (19 February 1993)

Unreported National Court Decisions

N1134

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1167 OF 1990
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 - Negligence - Bad road or negligent driving.

DAMAGES - death - dependency claim - widows and children - Provincial Minister.

Cases Cited:

Alo v MVIT 1992 N1122

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 one Yuale Gikau who it is alleged died from injuries he received in a motor vehicle accident on 22 March 1990 when he was a passenger in a motor vehicle registered No AGE 890 driven by Gikau Yuale which went out of control and overturned 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 approe in a dependency claim like this where the plaintiff was putting her name forward as the ithe initiator of these dependency 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 sse was on the back of the Toyota in question when there was some loose gravel and the road was slippery and the vehicle overturn160; She said that she and two others who were on the back of the utility jumped off the bahe back when the vehicle got into trouble and they do not know what happened to the vehicle as it was at nighttime. The main evidencthe circumircumstances of the accident comes from the police constable who investigated it the next day so unfortunately we are left with mainly the hearsay evi from him and his theories based on the signs he saw at thet the scene. He describes the road aery very narrow earth road and the scene was a slope after crossing a river. It was very muddy t had bead been raining so the road surface was very slipped in attempting to negotiate the slope the vehicle slipped pped sideways and then off the side of the road down into the river. constfelt that from thom thom the condition of the road and the weather there was nothing the driver could have done to stop the vehiliding 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 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 -off. In his Road Accd AccidentrReport he records the registration number of the vehicle as AGE 890 and that the registration expiry date was 29-12-90. He alsed that there was a as a third party insurance policy and recites the number and that it was issued at Kundiawa. However he doee that therethere was no safety sticker attached to the vehicle although he said that the windscreen was smashed. When asked wh he had sightsighted the registration papers he said he had, somebody had brought them in to him. He said he did not do a search of the traffice 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 tse oase of Alo V Motor Vehicles Insurance (PNG) Trust 1992 N1122 where the Judge found thate was inconsistencies in the evidence, namely the driver gier giving a different version of the events. So in that case the Judge found he could not be satisfied. er in the case before me n me now where the owner of the vehicle has been killed and I haver uncontraverted evidence from the policeman I am satisfied on the balance of probabilitiesities. Thiceman must have been saen satisfied as he made no suggestion of any charges for driving an unregistered and uninsured vehicle. The confusion amongst othenesses as to when the deceased had acquired the vehicle doee does not create any conflict over the registration. The fact that d note himsehimself does not create any difficullties as I find nothing unusual in a older lder leader acquiring a vehicle but relyinrelatives or others to drive for him. Faced with the clear stat ment and satisfactionction 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 pular insurance policy numbenumber 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 postem report is of seof severe chest injuries mainly on the right and a laceration on the right forehead and right arm injuries and it is submitted that those injuries are more consistent with a driver hitting a steering wheel rather than a passenger in the left hand 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 a situation. All the family agrat the dthe deceased did not know how to drive a vehicvehicle 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. Tust submits that the acci 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 on the r to take care.&#re. 160; Obviously the years oars other drivers have successfully navigated that section of road. The greater the r the more more the care the driver must take and I am satisfied that the driver could have managed on this section of road if h shown more care or been more experienced. I am satisfied that river iver was on the 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 deceasedthat the Trust is thereby leby 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 only only has about 6 months to run. His salary as aster was n3t K435.00 per foer fortnight. vidence from the wives wass was that they worked in their gardens and produced vegetabor thily and two of thof them referred to selling some vegetables for the family at the local maal market. However they also say that the deceased used to give them some money each fortnight from his salary. The Trust submits that hldcould not have spent all alary on his family as he had to spend some of his income on his supporters.

The agee ages of his wives and children as at the of his death are assessed as follows.

Polo Del aged aged about 40, her children Yuale Yuale aged 10 years and Kua Yuale aged 3 years, Korai Gena aged about 32 years, with one child Bomaigi Yuale aged 9 years, Apalgi Elwi aged about 27 years. The ded would have been aben about 48 years old at the date of his death. So he would have had about 7 more working years aheade use Public Service ages to go by. e was a politician althougthough with all the unce uncertainties that entails. His cu position nister wour would only have been certian till thel the middle of 1993. However as a man who hadinttained such a position Intitled to assume that he would have continued to provide for his family in some way for soor some years. Although this would banced by the fact that having three wives much of the basicbasic necessities of food would have been provided by the wives.

Thes gave evidence of amounts of K100 and K30 each fortnight from his salary. I think Iink I am eed to u to use those figures as the basisi of the loss incurred by the wives for themselves and for their children by the death of the deceased. And even h hisent term of m of office may have terminated sometime iime 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 ther cases I calculate the loss as follows. I give a slightly higherinontingency for the wife Apalgi Elwi as she is younger and has no children.

Loss to the date being for 2 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% is K5,093.16 and for each of the three children Yaule, Kua and Bomaigi at K10 each per week plus interest at 4% is K1,697.72.

Future Loss is as follows:

I order Judgement for K39,184.76.

K9,866.66 is tpaid lo Del, K9,916.6616.66 is to be paid to Korai Gena, and K8,993.78 is to be paid to Apalgi Elgi Elwi. The balance of K10,407.66 is to be paid to the Registrar to be invested as to K3,469.22 for each of the three children Yuale, Kua and Bomaigi until they rtively attain the age of 18 years which as to Yaule shall be 26 September 1998 as to Kua shua shall be 23 June 2005 and as to Bomaigi shall be 25 March 1999.

Lawyer for the Plaintiff: 17;Connor & Hasu

Lawyer for the Defendant: Younp; Williams

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