Garo Kei v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 07 July 1992
• Citation: [1992] PNGLR 195
• Court: National Court
• Year: 1992
• Judgement Number: N1090

National Court: Brown J

Judgment Delivered: 7 July 1992

N1090

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GARO KEI

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Brown J

7 July 1992

PRACTICE AND PROCEDURE — Pleadings — Statement of claim — Form and manner — Facts to be alleged not law — National Court Rules O 8 r 8 — Motor Vehicles (Third Party Insurance) Act Ch 295 s 54.

DAMAGES — Personal injuries — Particular awards of general damages — Negligence of driver/owner — Need for claim in respect of special damages.

EVIDENCE — Claim for damages — Proceedings under Motor Vehicles (Third Party Insurance) Act Ch 295 s 54 — Proof of all material facts relied on — Not sufficient merely to quote law relied upon.

Facts

The plaintiff failed to either allege facts sufficient to constitute a complete cause of action or prove by evidence an action in negligence presumed on the state of his pleadings. While the plaintiff has a right to claim pursuant to s 54 of the Motor Vehicles (Third Party Insurance) Act Ch 295, no evidence was led as to the matters required to be proved to bring the plaintiff within the terms of the section. The facts appear from the judgment.

Held

National Court Rules O 8 r 8 requires proof of evidence of the facts alleged in the statement of claim. An assertion by stating s 54 of the Motor Vehicles (Third Party Insurance) Act is insufficient pleading where no facts are alleged for the purpose of the section.

Counsel

J Nanei, for the plaintiff.

V Mirupase with O Kenekasii, for the defendant.

7 July 1992

BROWN J: The plaintiff claims damages for personal injuries suffered as a result of a motor vehicle accident which he says happened on 11 May 1989 on the road from Kapakapa to Port Moresby near Manugoro village. The plaintiff says the accident was caused by one Peter Opu, the driver of a vehicle in which the plaintiff was travelling as a passenger. In support of his claim for damages, the plaintiff gave evidence, as did his former wife and his present wife. Their evidence related to the extent of his injuries and his present disabilities. The plaintiff was the only witness to the accident.

The defendant called no evidence and argued that the plaintiff had failed to prove material facts which may be described as prerequisites to a successful claim against the Motor Vehicles Insurance Trust (hereafter Trust). Those facts were the ownership of the particular motor vehicle, its registration, and the fact or otherwise of current insurance by the Trust at the time of this accident.

The evidence given by the plaintiff was to the following effect. I quote from the plaintiff's evidence given in court today.

"I recall Thursday 11 May 1989. I was picked up by Peter Opu at work at Jimi Trading, 4 Mile, at about 1 to 1:30 pm. We went to pick up my former wife and family to go to the village at Kapakapa. On the way to the village, I had two bottles of beer while the driver had only one. It takes about one and a quarter hours to reach the village. We stayed at the village till about 4 pm. Peter was with me to do electrical work in the trade store. I was waiting and having my beer. Sometime after, we drove back. Peter was driving too fast. I told him to slow down but he ignored my words. We came to a corner with a PMV bus going in the other way. Suddenly Peter lost control on loose gravel. My side went and hit the mountain. The vehicle stopped pointing to Port Moresby. I was taken to the Health Center at Kwikila and from there to Port Moresby General Hospital. I was admitted to hospital on the same day at about 8 pm. That night they operated on me."

He was later asked:

Question: Do you know the registration number of the motor vehicle?

Answer: ACB...