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Kongupi v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 9; N1043 (4 March 1992)

Unreported National Court Decisions

N1043

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 700 OF 1989
LUCY KONGUPI
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
6 February 1992
4 March 1992

NEGLIGENCE - Personal Injuries - motor vehicle accident - fell off back of utility - liability - vehicle not properly identified - no negligence in driver.

Counsel

P Kopunye, for the Plaintiff

K Yalo, for the Defendant

4 March 1992

WOODS J: The Plaintiff is clg damagdamages for injuries received when she fell off a motor vehicle onto the roadway alleging that she fell off through the negligent driving of the motor vehicle. She claims that the motor vehicle involved was a green Toyota Hilux registered No AEL 388 owned and driven by a Dennis Philip.

The Plaintiff’s story is that she and her cousin were in Mt Hagen on the 14th of November, 1984 and they wished to return to their village down at Baiyer and they accepted a ride on the subject vehicle which they recognised as a vehicle that occasionally bought coffee in the area. She and her cousin say they paid K2 each for the ride. When the vehicle had got to near her village she had started to worry about the behaviour of two other men who had been drinking on the back of the truck and it was getting dark and the vehicle did not stop to let her and her cousin off at their village. So after her cousin tried to signal the driver from the crew’s side she got up and leant over to hit the window of the driver’s side. The driver’s window was up because it was starting to rain and because of the slippery and bumpy road she fell off the back of the vehicle. She suggested that the vehicle was travelling too fast in the circumstances and the car bumped too much so she fell off. She apparently fell on her head and became uncounscious as she did not regain consciousness until she was in the hospital.

Her story is corroborated by her cousin Pius Paraka who was with her at the time. Two other witnesses gave evidence about hearing about the accident and the hospitalisation of the Plaintiff and of their attempts to report the matter to the police. They state they understood the vehicle involved was owned and driven by Dennis Philip. However there is no confirmation of the details of the vehicle alleged to be the one on which Lucy was riding.

Such claims for damages are covered by the Motor Vehicles (Third Party Insurance) Act Ch 295 and s.54 states as follows:

1. ټ Subject to subsectisection 2 any claim for damages in respect of the death of or bodily injury to any person or caused by or arising out of the use of

a) ټ&##160; A60; A MotorMotor vehicle insured under this Act; or

b) an unid ureor othicle in a in a public street; or

c) ـ&#1 moehr ve ocle onle on a pu a public street where the identity of the motor vehicle cannot after due inquiry and search be established,

shall be made agains Trus not st the owner or driver of the motor vehr vehicle.icle.

It is necessary to properly establish the vehicle out of which a claim is made. It is necessary to establish whether it is a motor vehicle registered under the Act or a uninsured vehicle or unidentified vehicle. In this case there is no firm evidence identifying the vehicle and owner and whether it was properly registered and insured. Normally such details are confirmed by an identifying of the vehicle and then producing a search of the Traffic Registry and often this is confirmed by a road accident report prepared by the police which is the police investigation and it can usually be assumed that the police themselves have searched the Registry to ensure that any vehicles involved in accidents are properly registered. Although I do note that in some cases I have discoverd that the police do not always do such searches properly.

Firstly I am not satisfied that the claim is properly made out against the Motor Vehicles Insurance Trust because the vehicle has not been properly identified by a search or certificate confirming the registration and up to date insurance and the registered owner, or alternatively a proper search and enquiry has not been made to seek to establish the identity of the vehicle.

Secondly I am not satisfied that the claim in negligence has been made out. Third Party Insurance is not a no fault liability protection. The compulsory insurance ensures that the victim of negligent driving would not go empty handed because the driver or owner lacked the financial resources to meet the obligation. It helps the system of claims of negligent driving work but it does not change the system itself. Therefore there must be some element of negligence or some way one can assume some negligence. However all I have here is the Plaintiff riding on the back of a vehicle, not registered nor equipped to take passengers safely on the back. She then gets up and leans over to contact the driver but falls off. Whilst she says he was driving fast it would appear to be a subjective assessment and there is no objective evidence to infer excessive speed. The vehicle did not run off the road or anything like that. Her getting up while the vehicle was travelling on a rough slippery road was a very silly and negligent act in itself. His having failed to stop is not in itself negligence, he was not a public motor vehicle with an obligation to remember where passengers want to get off and as it was a private vehicle he may have just forgotten that he had said he would drop them off at their village. I find that the alleged vehicle is not properly identified for the purposes of a claim under the act and I further find that negligence has not be established. I therefore dismiss the claim.

Lawyer for the Plaintiff: P C Kopunye

Lawyer for the Defendant: Young & Williams