Golue Pagau v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 03 February 1992
• Citation: [1992] PNGLR 26
• Court: National Court
• Year: 1992
• Judgement Number: N1028

National Court: Woods J

Judgment Delivered: 3 February 1992

N1028

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GOLUE PAGAU

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

20 November 1991

3 February 1992

DAMAGES — Death — Dependency claim — Widow and children — Change in methods of calculating dependency claims — Interest on awards.

NEGLIGENCE — Liability — Motor vehicle accident — Overcrowded vehicle — Contributory negligence.

Facts

The plaintiff claimed damages on behalf of herself and her children for the death of her husband who was killed in a motor vehicle accident when he was a passenger therein. She pleaded negligence on the part of the driver of the vehicle and sued the Motor Vehicles Insurance (PNG) Trust, as insurer. The Trust denied liability.

Evidence was given by witnesses for the plaintiff that while the vehicle was going up a steep rise it stalled and rolled backwards, overturning over a cliff. Evidence was also presented that the deceased was a crew member of the bus.

Issues

1. Whether the driver of the vehicle negligently caused the accident and the resulting death of the plaintiff's husband.

2. The principles of assessing damages in dependency claims.

Held

1. The driver fell below the applicable standard of care, thereby causing the accident and the death of the plaintiff's husband. There was no overloading and, therefore, no contributing negligence.

2. Because of inflation, awards following death are to be divided into two parts; the first being actual loss to the dependants up to trial date, and the second being future loss from the date of trial onwards calculated with respect to the deceased's expected future earnings.

3. Interest should be awarded on the first part from the date of death to the date of judgment. No interest should be awarded in respect of the second part.

Cases Cited

Papua New Guinea case cited

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Other cases cited

Cookson v Knowles [1977] QB 913; [1979] AC 566 (HL)

Jefford v Gee [1970] 2 QB 130

Counsel

DL O'Connor for the plaintiff.

A Kandakasi for the defendant.

3 February 1992

WOODS J: The plaintiff is the widow of Gegua Wena who was killed following a motor vehicle accident on 25 July 1986 when he was a passenger on a motor vehicle driven by Peter Mondo, which ran off the road and overturned when the driver missed a gear change while going up a steep hill on the Kerowagi — Bongo Road in the Simbu Province. The plaintiff is claiming damages on behalf of herself and her children and alleges that her husband was killed through the negligence of the driver of the passenger motor vehicle. The claim is brought against the Motor Vehicles Insurance (PNG) Trust as the insurer of the motor vehicle and the Trust is denying liability.

The plaintiff called a number of witnesses who gave the following evidence. Kumulgo Degemba stated that he and others including Gegua the deceased got on the PMV bus at Kerowagi to go home to their village. As the PMV was going up a steep hill, the driver stalled as he was changing gear and the PMV rolled backwards and off the road and over the cliff. He said the Bus was not full as they had dropped off some passengers on the way already. Dilo Pagau gave a similar story of the accident and confirmed that the deceased was on the bus at the time.

Temene Simbai lives near the scene of the accident. He came to the scene and saw the 25 seater bus after the accident and saw the deceased lying unconscious and helped to lift him up and transport him to the hospital. Constable Jim Bomai was the police officer who attended the scene and did the police investigation and prepared the road accident report. He said that he saw the bus about 60 metres down the cliff off the road. All the injured had been taken to hospital, so he sought out and obtained particulars of all persons in the vehicle. He discovered that the deceased Gegua Wena was unconscious in Kundiawa Hospital and never recovered but died some weeks later. The constable was told that the deceased may have been the crew of the PMV. The constable in his Road Accident Report lists 29 people as being on the bus, 12 of whom were children 14 years of age and under. However, the witnesses who were on the bus say there were less than that when the accident happened.

The lawyer for the defendant initially challenged the claim on the basis that the evidence does not identify the vehicle involved. However, Constable Bomai clearly confirms he attended the scene and saw the vehicle. He reports the details of the vehicle concerned in the Road Accident Report such as the registration number, the expiry date of the...