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Marong v Bismark Industries Pty Ltd [1999] PGNC 151; [1999] PNGLR 118 (15 April 1999)

[1999] PNGLR 118

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LUCAS NEGETIMA MARONG

V

BISMARK INDUSTRIES PTY LTD;AND
MOTOR VEHICLES INSURANCE (PNG) TRUST

KOKOPO: SALIKA J
14, 15 April 1999

Facts

The plaintiff being an employee of the first defendant was driven to work in an unregistered and uninsured motor vehicle owned by the first defendant. He sustained injuries as a result of an accident when the motor vehicle overturned. Defendants admitted liability but claimed contributory negligence.

Held

1. The plaintiff, whilst he may have been aware that the motor vehicle was unregistered, uninsured and overloaded, could not, as an employee of the first defendant, refuse to board the second vehicle.
   
2. The first defendant was responsible for the registration and insurance of the motor vehicle and for the prevention of overloading of the said vehicle, which the first defendant failed to do so.
   
3. In these circumstances, the plaintiff was not guilty of contributory negligence.
   
4. Since the action is based on the Motor Vehicles (Third Party Insurance) Act, the Motor Vehicle Insurance Trust is liable to pay compensation.
   

Papua New Guinea cases cited

Nita Pyakli v MVIT N1092.

Robert Gembal v MVIT N828.

Counsel

O Kivu, for plaintiff.
K Frank, for first defendant.
A Kandakasi, for second defendant.

15 April 1999

SALIKA J. This is a claim for damages by the plaintiff for injuries he received when a motor vehicle he was riding overturned.

The facts of the case are that on or about 25 September 1995 at about 9:00 am the plaintiff who was then the Surveyor Trainee with the first defendant company was a passenger with other, travelling to his work in a Nissan UD Dump truck owned by the first defendant. The motor vehicle was unregistered and uninsured and driven by a David Kubura who was an employee of the first defendant. While they were driving along the Merai Road in the Putput logging area on the South coast of East New Britain the motor vehicle was travelling uphill and before it reached the top of the hill the engine stopped, causing it to roll back, hit the embankment and overturned causing injuries to all the occupants including the plaintiff.

The driver of the motor vehicle David Kubura is alleged to have driven the motor vehicle with the consent, express or implied of the first defendant.

The plaintiff also claimed against the first defendant on the basis of the Wrongs Act Ch 297, and the common law principles of negligence as applicable to Papua New Guinea.

At the outset on the date of trial after the matter had been called counsel for the plaintiff and the defendants informed the court of the following;

(i) That the parties are now agreed that the accident took place on a public road; and

(ii) That the parties are agreed that an award of K50,000.00 be made to the plaintiff subject to the issue of contributory negligence to be determined by the court.

After counsel had informed the Court of those concessions the effect of that is that the second defendant is admitting liability says but that the plaintiff is also partly liable for his own injuries. In other words the second defendant raises contributory negligence by the plaintiff.

Counsel for the plaintiff then addressed the court on that aspect of the case. But before counsel addressed the court I had asked counsel for the plaintiff whether he was going to call any evidence on the issue of contributory negligence. He informed the court that he was not calling any evidence but that he would rely on the affidavits of Mr. Sialis Tedor filed on the 22 March 1999 and the affidavit of Gabriel Polok filed also on 22 March 1999. The plaintiff’s counsel also relied on a letter from Young and Williams to Sialis Tedor and Associated dated 24 March 1999.

The affidavit of Mr. Tedor and the letter from Young and Williams are the only relevant documents by way of evidence, which touch on the issue of contributory negligence. The other two affidavits deal with the question of whether the accident occurred on a public road, which issue has now been agreed upon. Mr. Tedor’s affidavit however does not advance any argument one way or other as far as contributory negligence is concerned. In that letter of the 27 August 1998 Young and Williams to Sialis Tedor and Associates which is attached to Mr. Tedor’s affidavit it is clearly stated in the last paragraph of the letter that the main issue was to be whether that accident occurred on a public road. Moreover it was stated that the issue of contributory negligence would be raised. Mr. Tedor does not address his issue in his affidavit, nor does the plaintiff in his affidavit.

The letter from Young and Williams also raised the issue, which is dated the 24 March 1999. Young & Williams had pointed out to the plaintiff’s lawyer the following;

"The National Court has on a number of occasion held that where plaintiffs ride on motor vehicle which are not registered and therefore not insured, they contribute to the risk of injury or death."

They relied on the cases of Robert Gembal v MVIT N828 and Nita Pyakalo v MVIT N1092 in support of that contention. The second defendant’s lawyers have raised this argument based on the police accident report, which showed that the vehicle involved in the accident was overloaded and that it was not registered and that it was uninsured.

As stated at the outset the claim has been agreed upon. The second defendant has generally admitted liability but says the plaintiff also contributed to his own injuries by boarding an unregistered, uninsured and overloaded vehicle.

I will deal firstly with the argument that the plaintiff contributed to his own injuries by boarding an unregistered and uninsured vehicle. While it was pleaded in the statement of claim that the plaintiff was a passenger on an unregistered and uninsured vehicle owned by the first defendant there is no evidence that the plaintiff knew those facts before he boarded the motor vehicle. This claim is brought by the plaintiff he ought to have stated clearly by way of evidence if he knew those factors before he boarded the motor vehicle. Because there is no evidence of that I have assume that he knew those factors before he boarded the motor vehicle. I restate what has been said before by the Courts that pleadings are not evidence.

Furthermore, the parties may have agreed on the total award on the basis that the plaintiff knew those factors before he boarded the motor vehicle or on the basis of the pleadings. In his pleadings the plaintiff asserted that the motor vehicle was unregistered and uninsured. The second defendant has conceded that assertion. As the second defendant has conceded that assertion the plaintiff has merely accepted the concession. On that basis I find that the plaintiff knew the motor vehicle was unregistered and uninsured and boarded the motor vehicle nevertheless.

The next argument is that the motor vehicle was overloaded. This argument is raised because the police accident report, which is annexed to Mr. Tedor’s affidavit filed on the 22 March 1999, says the motor vehicle was overloaded. There is no mechanical report to suggest why the engine stopped while the motor vehicle was climbing up the hill. There is no evidence how many people the motor vehicle can carry or how many people were on the vehicle at the material time. There is a very good likelihood that the vehicle was overloaded. A loaded motor vehicle will usually find it harder to climb a hill. While there is no evidence of overloading, I will have to accept the police accident report that the motor vehicle in question was overloaded and that may have been the major cause of the engine stopping before it reached the top because it had difficulty climbing up the hill.

The fact that the plaintiff boarded the motor vehicle knowing it be unregistered and therefore uninsured and that it was overloaded in my view does not at this stage automatically render the plaintiff to be contributory negligent. I am of the view that one has to look at the circumstances he boarded the motor vehicle? He and others were picked up b the motor vehicle owned by their employer to go to their place of work at the logging site. While not supported by evidence, it is common for employers involved in logging to transport their workers in one truck without regard for their safety. Perhaps they thought they were in the bush and they could do that. I presume this to be one such occasion. I am of the view that the plaintiff had no choice. He had to get into the motor vehicle. Had he refused he might have lost his job. There is no evidence that any other motor vehicle was available after the first vehicle was full. In my view the employer must bear the full responsibility for the overloading of the motor vehicle and the fact that the motor vehicle was unregistered and uninsured. Furthermore the driver of the motor vehicle who is an employee of the first defendant or perhaps their supervisor ought to have supervised the loading.

I distinguish this case to the cases of Robert Gembal v MVIT N828 and Nita Pyakalo v MVIT N1099 in that the two cases the plaintiffs had the choice to refuse the lift with not detrimental consequences upon themselves. Person who gave them lift was friends or persons known to them. In the case of the plaintiff in this case, it is my view that had the plaintiff refused to board the motor vehicle it would have been his own detriment. He most likely would have lost his job. He was a mere trainee surveyor earning K73.40 per week. The transport was provided to them to get. It is therefore in my view only fair that the employer must bear the full responsibility. The employer had an obligation to make sure its vehicles were registered and insured and that they were road worthy. Furthermore an employer had obligations to oversee the loading of the motor vehicle and in my view to ensure that the motor vehicle was not overloaded.

The employer however cannot be sued under s 54 of the Motor Vehicles Insurance Act. All actions involving motor vehicle accident should be brought against the Trust if the injured persons decided to bring their actions under the Motor Vehicles Insurance Act. If the injured persons decide to bring their actions under any law other law, it is my view that they bring it under those other laws for instance the Wrongs Act. They should decide which law they want to invoke to get their relief.

In this case the plaintiff has invoked the provision of the Motor Vehicles Insurance Act in this claim. My view is that he ought to have decided which defendant to sue either the first defendant or the second defendant. If he decides to sue the first defendant then he can bring his actions under the Wrongs Act, if he decides to sue the Motor Vehicles Insurance Trust then it should invoke the provisions of the Motor Vehicles Insurance Act and not the first defendant. I am of the view that he cannot in this section include the first defendant as a first defendant because he has decided to invoke the provision of the and therefore he can only sue the trust and in the circumstances I find that he second defendant is wrongly included as a defendant as a defendant in this section and I find the first defendant failed in it as I said earlier in relation to overloading and the fact that the motor vehicle was uninsured and unregistered.

I find that the first defendant failed in its obligations to its employees and such I find that there is not contributory negligence on the part of the plaintiff. As the first defendant is indemnified under the Motor Vehicle Insurance Act the second defendant has to bear that responsibility in full.

I accordingly award the plaintiff the K50,000.00 as agreed against the second defendant together with costs and interest at 8% per annum.

In relation to the claim against the first defendant, I dismiss it and award costs to the first defendant against the plaintiff in relation to having being wrongly included as a defendant.

Lawyers for the plaintiff: Sialis Tedor & Associates.
Lawyers for the first defendant: Maladina Lawyers.
Lawyers for the second defendant: Young & Williams.