Andrew Moka v Motor Vehicle Insurance Limited (2004) SC729

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Sevua J, Mogish J
• Judgment Date: 01 April 2004
• Court: Supreme Court
• Citation: (2004) SC729
• Docket Number: SCA 51 of 2001
• Year: 2004
• Judgement Number: SC729

Full Title: SCA 51 of 2001; Andrew Moka v Motor Vehicle Insurance Limited (2004) SC729

Supreme Court: Hinchliffe J, Sevua J, Mogish J

Judgment Delivered: 1 April 2004

1 Negligence—Liability—Contributory negligence—Collision between two vehicles—First vehicle broken down on road and being pushed to side of road—Second vehicle's driver under influence of liquor collided with first vehicle—Whether appellant's conduct in pushing vehicle off road amount to contributory negligence—Whether finding of contributory negligence at 50% against appellant correct in law.

2 The Older [1949] WN 488; 66 LTLR (Pt 1) 105 CA, Nance v British Colombia Electric Railway Company Ltd [1951] AC 601 at 611; 2 All ER 448 PC, Robert Brown v MVIT [1980] PNGLR 409, Davies v Swan Motor Co [1949] 2 KB 291 at 326; 1 All ER 620 CA, Papua New Guinea Institute of Medical Research v PNGBC (1999) N1934, Thomas Tambi v The Independent State of Papua New Guinea [1988–89] PNGLR 648, Rock Kuri v MVIT (Unreported and Unnumbered judgment of Woods J delivered on 19 November 1998), Pinzger v Bougainville Copper Ltd [1985] PNGLR 160 referred to

___________________________

SC729

PAPUA NEW GUINEA

[Supreme Court of Justice]

SCA 51 of 2001

BETWEEN

ANDREW MOKA

Appellant

AND

MOTOR VEHICLE INSURANCE LIMITED

Respondent

Waigani : Hinchliffe, Sevua & Mogish, JJ

2002 : 1st August

&

2004 : 1st April

Negligence – Liability – Contributory negligence – Collision between two vehicles – First vehicle broken down on road and being pushed to side of road – Second vehicle’s driver under influence of liquor collided with first vehicle – Whether appellant’s conduct in pushing vehicle off road amount to contributory negligence – Whether finding of contributory negligence at 50% against appellant correct in law.

Cases cited:

The Older [1949] WN 488; 66 LTLR (Pt 1) 105 CA

Nance v. British Columbic Electric Rasley [1951] AC 601 at 611; 2 All ER 448 PC

Robert Brown v. Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409

Davies v. Swan Motor Co [1949] 2 KB 291 at 326; 1 All ER 620 CA

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

Rock Kuri v. Motor Vehicle Insurance (PNG) Trust, unreported and unnumbered, 19th November 1998

Anton Johan Pinzger v. Bouganville Copper Limited [1985] PNGLR 160

T. Boboro for Appellant

V. Mirupasi for Respondent

1st April 2004

BY THE COURT : This is an appeal against the whole of the judgment of the National Court given on 18th May 2001 at Waigani.

The proceedings before the National Court was a claim by the appellant for damages for negligence arising out of a motor vehicle accident, which occurred at Waigani Drive, near the old Germania Club, on 18th July 1996 at approximately 8.30pm.

The brief facts were that the appellant and the deceased Mark Wara were pushing their vehicle from the road to the side of the road after the vehicle had broken down, when they were struck by a vehicle from behind as they were pushing their vehicle off the road. As a result of this mishap, Mark Wara died from injuries he sustained, while the appellant suffered serious injuries.

The trial Judge made a number of findings and reached conclusions which are now challenged in this appeal. The significant findings that the appellant is challenging are the trial Judge’s findings of contributory negligence and subsequent apportionment of blame on the appellant to the extent of 50%. The grounds of appeal are as follows:

1. The learned trial Judge erred in law:-

(a) His Honour erred in that there was no or no sufficient evidence to find that the appellant was guilty of contributory negligence or alternatively guilty of contributory negligence to the extent of 50%.

(b) The apportionment was not just and equitable having regard to the relative fault of the appellant and the respondent’s insured.

(a) His Honour failed to take into account the following facts or circumstances either at all having given sufficient weight.

(i) That the appellant was a passenger in a motor vehicle which had broken down and he was trying to move it off the roadway;

(i) That the appellant was at, most, endangering his own safety, whereas the respondent’s insured was a danger to all road users;

(i) The respondent’s insured liability for the injury suffered by the appellant was considerably more blameworthy than any conduct on the part of the appellant;

(i) That the respondent’s insured was driving at high speed, failed to keep a proper look out and was guilty of dangerous driving.

(i) His Honour failed to take into account that the respondent’s insured failed to give any evidence to explain his conduct or as to the circumstances of the accident;

(i) His Honour erred in failing to accept the evidence of the appellant in circumstances in which there was no contrary evidence and the appellant’s evidence was not far fetched or fanciful.

1. The decision is against the evidence and weight of the evidence.

2. The decision on the issue of contributory negligence is wrong and should be set aside.

The orders sought by the appellant therefore are:-

(a) That the order of His Honour Justice Kandakasi of 18th January 2001 be quashed.

(a) That judgment be entered in favour of the plaintiff against the defendant.

(a) That the Supreme Court assess damages to what the plaintiff is entitled as follows:-

(i) General damages at K73,000.00

(ii) Future income loss at K47,264.00

(iii) Past income loss at K20,000.00

(iv) Interest on past general damages at K 240.00

(d) That the defendant pays the plaintiff’s costs.

Having heard oral submissions from both counsel and reading their written submissions, we consider that the central issue in this appeal is the trial Judge’s finding and conclusion that there was contributory negligence on the part of the appellant thereby concluding that the appellant was 50% negligent and blameworthy.

It is significant to refer to parts of the trial Judge’s judgment. At page 4 of his judgment, the trial Judge made various findings. We emphasise the following: “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 (sic) Martin Vele. The defendant’s liability is by virtue of s.54 of the Motor Vehicle Insurance Trust Act”.

Then on page 5 of his judgment, the trial Judge made further findings on two possibilities, which we consider to be quite erroneous and contrary to the sworn testimony of the appellant. His Honour said:

“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 another 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”.

On the basis of these findings, which we consider to be erroneous, the trial Judge concluded there was contributory negligence. In that paragraph he said:

“I find the plaintiff either placing himself in the way of the on coming

traffic or position himself at a point that was unsafe for him to do so, I

find therefore that he failed to exercise reasonable care and attention for

his own safety. He was therefore partly responsible for his own injuries…

I find the plaintiff’s conduct was equally blameworthy as that of Martin Vele

in the particular circumstances of this case. It is therefore fair and reasonable, to also find that the plaintiff contributed to his injuries by his own negligence up to about 50%.......”

With respect, we are of the view that the learned trial Judge made some serious identifiable errors which has resulted in an injustice to the appellant, the consequences of which, is that, he has been denied compensation he is legally entitled to.

We consider that the trial Judge’s findings that we have alluded to are not supported by evidence. The uncontested testimony of the appellant was that between 7.00 and 8.30 pm on the evening of the day he and Wara were injured, their vehicle had broken down on the main lane. They then switched the emergency blinkers on and were pushing the vehicle towards the side of the road. A vehicle came from behind them and struck them while they were pushing the vehicle. That piece of oral evidence is consistent with the appellant’s affidavit sworn on 4th April 2001, Exhibit “E”.

The appellant’s evidence that we have alluded to was never refuted by the respondent. The respondent did not adduce any evidence to suggest that the appellant was blameworthy. So what is the basis for the finding of contributory negligence? In any event, the defendant’s insured driver, Martin Vele, was driving under the influence of alcohol. He collided onto the...