Bepiwan Ambom (or Ambon) v Motor Vehicles Insurance (PNG) Trust (MVIT)

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 10 November 1992
• Citation: (1992) N1116
• Court: National Court
• Year: 1992
• Judgement Number: N1116

National Court: Brown J

Judgment Delivered: 10 November 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 318 OF 1990

BEPIWAN AMBON — PLAINTIFF

V

MOTOR VEHICLES INSURANCE (PNG) TRUST — DEFENDANT

Wabag

Brown J

7 — 8 September 1992

10 November 1992

NEGLIGENCE — Motor Vehicle accident — Vehicle rolled over — res ipsa loquitur — No real explanation for accident.

EVIDENCE — Motor Vehicle Registration and Insurance — Absence of certificates — sufficiency of proof.

DAMAGES — Personal Injuries — Plaintiff 20 years old female school student (18 at the time of accident) reliant on subsistence farming parents — Loss of arm in accident — Formal amputation at mid humerus — Severe shock — Life threatening injury — Minor lacerations to feet, knee and thigh.

Counsel

Mr M Thoke for the Plaintiff

Mr A Kandakasi for the Defendant

10 November 1992

BROWN J: This young lady was injured in a motor vehicle accident which occurred on the 26 August 1988 on the road to Mount Hagen. She was a passenger in the vehicle travelling from Wabag. She sues the Trust as the authorised Third Party Insurer of the vehicle, a Nissan Patrol pursuant to the provisions of s. 54 of the Motor Vehicles (Third Party) Insurance Act:

"Subject to ss. (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of:

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established."

The facts are that she and a girlfriend left Wabag after school on the day at about 6pm in this vehicle driven by one Steven Kuru, to spend the weekend in Mount Hagen. At the Togoba turn-off, a short distance out of Mount Hagen town, the vehicle left the bitumen, rolled over and seriously injured the plaintiff. The plaintiff alleges that the accident was due to the negligence of the driver who drove too quickly, was careless and was affected by alcohol.

I am satisfied the driver was affected by alcohol from the evidence of the girl and Constable Saliemunge of the Traffic Branch, Mount Hagen Police (who attended the scene and prepared a traffic accident report). From the distance shown in the sketch the vehicle would appear to have been speeding to roll so far before coming to rest, I need not attempt to reconstruct the events leading up to and during the accident to find speed or carelessness. There was no other vehicle involved. In the circumstances the maxim res ipsa locatur applies and negligence is assumed.

The question raised by the defence however, remains. Was the girl guilty of contributory negligence?

She said in her evidence that she sat in the front of the vehicle in the middle seat next to the driver. On the way to Mount Hagen he was drinking beer and speeding. She said the accident happened at about 9:20pm when the vehicle turned over because the driver was driving too fast. Her left arm was crushed and she was taken to the Togoba Health Center where her condition was stabilised before she was taken to Mount Hagen Hospital. There she was subsequently operated upon to amputate what remained of her arm. She said she slept after Wabag until Paipona when her companion woke her and told her that the driver was drinking. She said she did nothing about that, and fell asleep again until the time of the accident. She had not seen the driver drinking up to the time she fell asleep after Wapenamanda. Paipona to Togoba is about 30 minutes driving. The driving time between Wabag and Mount Hagen was between 2 1/2 to 3 hours and there were no unusual conditions described on this occasion to warrant a variatin. Yet the journey seemed to have been of unusual duration even without stops. The vehicle was some 30 minutes from Mount Hagen when the accident happened.

I am not satisfied that the plaintiff was frank in the witness box. I find it extraordinary that a 17 year old school girl should get into a vehicle driven by an unknown male (even if she was a paying passenger) go to sleep soon after, and remain asleep even when told that the driver was drinking. She admitted being aware he was driving too quickly. She in fact said he drank a carton of beer but I give this little credence for I find her evidence on the manner and circumstances of the drive unsatisfactory.

I do rely on thie independent evidence of the policemen. The policeman says the accident happened at 11pm and that the driver and other passengers were consuming liquor. No questions were directed to the constable to elicit how he came to say this, but Mr Kandakasi for the Trust says the journey was in fact a joy-ride for the girls. He points to the fact that the girls were the only passengers while they told the policeman at the time that they wished to be dropped off at home down the highway from Wabag school, and thus the driver was effectively holding them in the vehicle contrary to their wishes. The plaintiff in Court says she wanted to go to Mount Hagen for the weekend. He says the accident report clearly shows the accident to have happened long after the time alleged by the girl and if I accept the independent evidence of the policemen, the girl has failed to explain the inordinate delay in reaching Togoba. The delay was of their own making, he says, whilst they were drinking on route. He says tere was complicity with the driver, she was aware he was intoxicated and on her own admission that he was driving fast, she should be held partly responsible for her injuries.

I must say with that I agree. If she had joined the driver as Mr Kandakasi says for a frolic of their own, then the very accident happened which could have been, anticipated, where alcohol to the extent shown by the policeman, is shown to have affected the driver. If she has passed her home and was taken to Mount Hagen contrary to her wishes, surely she would have pressed that aspect in this Court. But she chose to say and rely on her assertion that she slept for the greater part of the drive. I do not accept that assertion. I find that she was aware of the driver's drinking, and his manner of driving too fast. By her evidence, I am not satisfied she was precluded from either demonstrating with the driver, or being put down with her girlfriend before this accident. I consequently find the plaintiff did materially contribute to her injuries by her own negligence. I consider a fair assessment is 30%. Her damages will accordingly be reduced by that percentage. Now before going to that aspect I wish to eal with the question of the identity of the registered owner, and whether or not the vehicle was an insured vehicle for the purposes of s 54 (1) of the Motor Vehicles (Third Party) Insurance Act.

I said, when allowing the policeman's evidence on these points, that I would give reasons, for the material point, whether the vehicle was registered and insured...