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Danga v Motor Vehicle Insurance (PNG) Trust [1997] PGNC 160; N1665 (11 December 1997)

Unreported National Court Decisions

N1665

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 285 OF 1996
JOE DANGA
PLAINTIFF
V
MOTOR VEHICLES INSURANCE (PNG) TRUST
DEFENDANT

Waigani

Sawong J
10 December 1997
11 December 1997

DAMAGE – Personal injuries –Evidence – Claim for damages – Proceedings under Motor Vehicles (Third Party Insurance) Act ch 295 – No Proof of all material facts relied on – Claim dismissed.

Cases Cited

Kei v MVIT [1992] PNGLR 195

Counsel

J. Appa, for the Plaintiff

Kandakasi, for the Defendant

11 December 1997

SAWONG J: The plaintiff claims damages for personal injuries suffered as a result of a motor vehicle accident which he says occurred on 7 May 1994 on the Okuk highway, near Awiamp. The plaintiff alleged in his statement of claim that the driver of the vehicle was negligent in driving the vehicle and as result an accident occurred. He suffered injuries and was hospitalised.

In support of his claim for damages, the plaintiff was the only one called to give evidence. His evidence related to him travelling in a motor vehicle, the occurrence of the accident, him being injured in the accident subsequent admission to Mt Hagen Hospital, the Kundiawa Hospital and subsequent view of his conditions by Dr Mondia in October 1997. Some were other people who were also injured in the accident, but were not called to give evidence.

The defendant called no evidence but argued that the plaintiff had failed to prove material facts which may be described as prerequisites to a success but claim against the defendant . Those facts were the ownership of the vehicle, its registration, and the fact or otherwise of insurance at the time of the accident.

In his evidence the plaintiff said that on 7 May 1994 he together with others were travelling on a vehicle registration No. HAB164. They were travelling from Kundiawa along the Okuk Highway, and as their driver was driving too fast, the vehicle overturned near Awiamp. When the vehicleoverturned he received injuries, including a fracture of the left hand. He was unconscious and was taken to Hagen Hospital.

At the hospital Dr Badier examined him. He did not finish his hospitalisation there, but was taken by his relatives to Kundiawa, because a man from Hagen who was also been injured in the same accident had died, and his relatives feared for his safety. He says that later the police extended the scene of the accident. At this point of his evidence, he was given the police accident report. This was objected to and I upheld the objection.

No policeman was called. The police accident report as not admitted as it was objected to by counsel for the defendant. I refused to admit it because neither the policeman who compiled was called nor was there any basis laid by his counsel upon which that document could have been put into evidence through the plaintiff.

In my view, this matter can be determined on the issue of whether the plaintiff has proved that the defendant is liable.

Mr Apa submitted in evidence that the plaintiff has called evidence that he sustained injuries whilst he was travelling in vehicle. He submits that the plaintiff has given evidence of the particulars of the vehicle, namely the registration number of the vehicle.

Mr Kandakasi has submitted that the plaintiff has not called any evidence to prove any of the material facts to prove his claim. He submitted that a plaintiff has not called any evidence to prove any of the material facts to prove his claim. He submitted that the plaintiff has produced no evidence regarding the particulars of the motor vehicle, nor has he produced any certificate of ownership of the said vehicle. He has produced no certificates of insurance. He has produced no police accident report nor any contemporaneous medical report.

Further, Mr Kandakasi submitted that the plaintiff has not even produced any evidence of negligence on the part of the driver.

In these circumstances Mr Kandakasi submitted that the plaintiff’s claim must be dismissed. Mr Kandakasi relied on Kei v MVIT [1992] PNGLR 195. In that case the plaintiff also claimed damages for personal injuries against the defendant. In the trial the plaintiff failed to either allege facts sufficient to constitute a complete cause of action or prove by evidence an action in negligence resumed on the state of his pleadings. The plaintiff had no evidence to prove any of the underlying or material facts. Brown J Act 198 said,

“The underlying facts which must be proved are that the motor vehicle involved in the accident was a motor vehicle insured under the act, or was an uninsured motor vehicle in a public street, or that the motor vehicle cannot, after due searching inquiry, be identified.

No certificate has been given in assurance for the motor vehicle allegedly involved in the accident at the time. There is no evidence of the registered owner of the motor vehicle ACB 334 nor of any registration details in relation to that vehicle obtainable from the Department of Motor Transport. Such matters clearly go to documents, for the fact of registration is a matter for the Department of Transport. Such matters clearly to documents, for the evidence of ownership for the purpose of the act and, similarly, a certificate under hand of the Trust is proof of insurance. In this case, all those proofs are lacking. In my view, whilst it is not strictly necessary to plead the particular subsections under which the plaintiff sues by virtue of s54 of the act, facts must be pleaded sufficient to bring the cause of action with the section. In other words, it would be appropriate in this case, as has been done, to plead ownership in a particular person and the fact that the vehicle was an insured vehicle at the relevant time. Since the point has not been taken prior to the hearing by the defendant, it would be open to the plaintiff to prove in evidence those facts which underlie his cause of action. In this case, however, he has neither pleaded the most material fact nor has he, in his evidence, proved those facts which he has alleged, including the details of the motor vehicle and the facts which he has alleged, including the details of the motor vehicle and the ownership or the registration. There has been no evidence of the most material fact, whether the vehicle was insured or uninsured at the time.

There is no evidence of the registered owner of the motor vehicle ACB nor of any registration details in relation to that vehicle obtainable from the Department of Motor Transport. Such matter clearly go to documents, for the fact of registration is a matter for the Department of Transport. Such matters clearly to documents, for the evidence of ownership for the purpose of the act and, similarly, a certificate under hand of the Trust is proof of insurance.

In this case, all those proofs are lacking. In my view, whilst it is not strictly necessary to plead the particular subsections under which the plaintiff sues by virtue of s54 of the act, facts must be pleaded sufficient to bring the cause of action with the section. In other words, it would be appropriate in this case, as has been done, to plead ownership in a particular person and the fact that the vehicle was an insured vehicle at the relevant time. Since the point has not been taken prior to the hearing by the defendant, it would be open to the plaintiff to prove in evidence those facts which underlie his cause of action. In this case, however, he has neither pleaded the most material fact nor has he, in his evidence, proved those facts which he has alleged, including the details of the motor vehicle and the ownership or the registration. There has been no evidence of the most material fact, whether the vehicle was insured or uninsured at the time.

There is evidence of the registered owner of the motor vehicle ACB 334 nor of any registration details in relations to that vehicle obtainable from the Department of Motor Transport.......

As I say, the plaintiff failed to...... allege that the relevant motor vehicle was, for instance, insured or uninsured at the time of the accident. Even if silent on those facts, evidence must be brought to bring the plaintiff within the provisions of s54.

In the absence of evidence in support of those necessary preconditions, the defendant is not liable. The plaintiff’s claim must fail”.

I consider that the principles set out above are not only relevant and applicable, but are sound. I consider that those principles are relevant and applicable in the present case.

I accept the submissions put by Mr Kandakasi. There is no evidence of any of the material factors, such as the particulars of the motor vehicles, the ownership and the driver of the vehicle. There is also no evidence of certificate of ownership or insurance. Furthermore I find that there is insufficient evidence of negligence on the part of the driver of the said vehicle.

In the circumstances the plaintiff has failed to prove his claim. There shall therefore be a verdict for the defendant. The plaintiff shall pay the defendant’s costs.

Lawyer for the Plaintiff: Lucas Senar & Associates

Lawyer for the Defendant: Young & Williams