Andrew Moka v Motor Vehicles Insurance (PNG) Limited (2001) N2098

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 18 May 2001
• Court: National Court
• Citation: (2001) N2098
• Year: 2001
• Judgement Number: N2098

Full Title: Andrew Moka v Motor Vehicles Insurance (PNG) Limited (2001) N2098

National Court: Kandakasi J

Judgment Delivered: 18 May 2001

N2098

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. 302 of 2000

BETWEEN:

ANDREW MOKA

Plaintiff

AND:

MOTOR VEHICLE INSURANCE

Defendant

LAE: Kandakasi J

2001: 11 April

: 18 May

NEGLIGANCE — Liability — Collision between two vehicles — First vehicle broken down in the inside line of a double lane road — Second vehicle driven under influence of alcohol collided into first vehicle — Plaintiff's conduct — Doctrine of res ipsa loquitur applied — Plaintiff guilty of 50% contributory negligence.

DAMEGES — Personal injuries — Particular awards of damages — Comminuted fracture of left tibia and fibula and minor head injury with no disability — 40% estimate loss of efficient use of left leg — Male aged 32 — Security Guard — Assessed K23, 000.00 for general damages and K29, 932. 88 for economic loss before contributory negligence.

Cases Cited:

Porter v. Morrison-Knudsen International Co. Inc. & Anor [1973] PNGLR 240

Bepiwan Ambon v. MVIT N1116.

Alfred Moia v The State [1988] PNGLR 299

Tambi -v- The State [1988-89] PNGLR 648,

Kiak -v- Tora Enterprises Pty Ltd &MVIT [1986] PNGLR 265,

Alphonse Kopi v the State [1994] PNGLR 475

Paim -v- The State [1988-89] PNGLR 651

Rock Kuri v. MVIT (unreported and unnumbered judgement delivered on 19th November 1998)

Margaret Oii v. MVIT (unreported and unnumbered judgement delivered on 15th of October 1998)

Richard Tom Mandui -v- The Commissioner of Corrective Institution Services and The State [1996] PNGLR 187

Korrolly, Tovue and Kolita v. MVIT [1991] PNGLR 415

Rose Terema v. MVIT [1994] PNGLR 41.

Counsels:

Mr. I. Shepherd for the plaintiff.

Mr. V. Mirupasi for the defendant.

18 May, 2001

KANDAKASI, J: The Plaintiff is claiming damages for personal injuries allegedly received from a motor vehicle accident on the 13th of July 1996 along the Waigani Drive outside the old Germania Club. He claims the negligent driving of a motor vehicle, Toyota Corolla registration No. BAH 617 ("the Corolla") which collided into a vehicle he was in and broke down on the road due to an unspecified mechanical fault ("the first vehicle") caused the accident. The Defendant is being sued under s. 54 of the Motor Vehicles (Third Party Insurance) Act (Chp. 295) ("the MVIT Act), which allows such claims against it. The Defendant denies liability and pleads contributory negligence against the Plaintiff in the alternative and is taking no other issues.

Issues

The main issues for determination are; (1) was the driver of the Corolla negligent and therefore the Defendant is liable to the Plaintiff in damages, (2) Did the Plaintiff contribute to his injuries by his own negligence, and (3) if the Defendant is liable what are the Plaintiff's damages?

The Evidence

The Plaintiff admitted into evidence (exhibit "E") an affidavit sworn by him on 4th April 2001, excluding paragraphs 6 and 7 which were successfully objected to by the Defendant. He also gave some oral evidence under examination in chief and cross-examined.

The Plaintiff's story is this. On 13th July 1996, he and a cousin brother, Mark Wara were travelling along the inside lane on the Waigani drive in his cousin's vehicle and the vehicle broke down due to an unspecified mechanical problem outside the old Germina Club. So they got out of the vehicle to push it to the side. Before they could do that, they saw the Corolla travelling toward them on high speed. The Plaintiff was sure the Corolla was going to collide into them. To avoid being hit, he and his cousin moved to the front of their vehicle. The Corolla then collided onto the back of their vehicle. That resulted in serious injuries to both of them. Mr. Wara, later died and the Plaintiff recovered from the injuries they respectively sustained from the accident.

The Plaintiff's injuries were a fractured leg, cuts to his face, left hand, wrist and thigh. He also sustained a broken nose injury and was knocked unconscious. He recovered from the Port Moresby General Hospital. He was hospitalised and treated there until discharged some six weeks later. He was readmitted on 27th of January 1997, because his fracture leg injury failed to reunite. He underwent a corrective surgery for that and was later discharged with a long course of antibiotics and advice to under go physiotherapy. Eventually, his injuries and disabilities stabilised and was left with an estimated 40% permanent loss of efficient use of his left leg.

Most of the questions in cross-examination were centred around the way and manner in which the Plaintiff placed himself on the road and the steps he took and could have taken to avoid sustaining the injuries, his residual disabilities and his employment. The Plaintiff maintained his story and stated further that, the accident happened in the night between 8:30 and 9:30pm and the road was busy with many cars travelling on either side.

A number of documents were also admitted into evidence for the Plaintiff with the Defendant's consent. They were, (1) a discharged summary from the Port Moresby General Hospital — Exhibit 'A', (2) an interim medical report by Dr. M. Garo dated 26th March 1997 — Exhibit 'B', (3) a final medical report dated 21st April 1998 by Dr. Ikau Kevau — Exhibit 'C', (4) original of clarification letter dated 29th May 2000 by Dr. Ikau Kevau — Exhibit 'D', (5) a copy of Police Accident Report consisting of 2 pages — Exhibit 'F' and (6) a District Court order and Certificate of conviction dated 16th July 1996 confirming a conviction and sentence of a Martin Vele for dangerous driving causing bodily harm to one Andrew M. Moka — Exhibit 'H'.

These documents supported the plaintiff's evidence. In addition to that, they confirmed that police investigated into the accident and charged the driver of the Corolla, Martin Vele. Mr. Vele was found guilty of dangerous driving causing injuries to the Plaintiff. The certificate of conviction established a prima facie but rebuttable case of negligent driving resulting in injuries to the Plaintiff. The Defendant called no evidence. So the plaintiff's evidence stood unrebutted.

Findings

On the above evidence, I find that the plaintiff was a passenger in the first vehicle, driven by Mark Wara on 13th July 1996. Due to an unspecified mechanical problem, that vehicle broke down on the inside lane along the Waigani Drive outside the former Germania Club. I also find that Mr. Martin Vele negligently drove into the first vehicle. The certificate of conviction (Exhibit "H") confirming the negligence of Mr. Vele was not rebutted by any evidence from the Defendant. Mr. Vele's negligent driving resulted in serious injuries to both Mr. Wara who later died and the Plaintiff, who sustained injuries from which he has recovered but with some disability. The Defendant is thus liable in damages to the plaintiff for the negligent driving of the Martin Vele. The Defendant's liability is by virtue of s. 54 of the MVIT Act.

I do not accept the Plaintiff's claim that he and Mr. Wara were in front of the first vehicle when the collision occurred. This is because, if indeed they were in front of their own vehicle, that vehicle could have protected them from being injured. There is no evidence of how it was possible for the Corolla to by pass their vehicle and cause injuries to them. There is no evidence of their vehicle being smashed into pieces or something like that, before the Corolla could reach them. Further, there is no evidence of the first vehicle being damaged and how that could in turn have led to he and his cousin's injuries and the eventual death of his cousin.

I find either of two possibilities was the case. Firstly, the Plaintiff and his cousin were pushing their vehicle from the back of their vehicle, which exposed them to the risk of being hit, by an other vehicle and that is what happened. Or secondly, they were in the process of abandoning their vehicle when it was unsafe to do so and were hit by the Corolla. The onus was on the Plaintiff to show exactly how the accident led to...