Imambu Alo v Motor Vehicles Insurance (PNG) Trust ( MVIT)

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 07 December 1992
• Citation: [1992] PNGLR 487
• Court: National Court
• Year: 1992
• Judgement Number: N1122

National Court: Brown J

Judgment Delivered: 7 December 1992

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IMAMBU ALO

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Wabag

Brown J

30 November 1992

7 December 1992

EVIDENCE — Motor vehicle accident — Claim for damages — Claim against authorised third party insurer — Absence of certificate of insurance and registration — Conflict of evidence — Necessity to prove elements of statutory prerequisites to claim under the Motor Vehicles (Third Party Insurance) Act — Sufficiency of proof.

NEGLIGENCE — Motor vehicles accident — Claim of contributory negligence at trial without notice rejected — Negligence of driver noted.

Facts

By statement of claim, the plaintiff seeks to recover damages for personal injuries suffered as the result of the negligent driving of one Elias Etalim. That driver gave oral evidence of a recent purchase of a motor vehicle at auction from P.T.B. Wabag. No receipts or terms of sale were elicited on hearing. While asserting that the vehicle was registered and insured, no certificates were produced from the proper authorities. A policeman gave evidence that his compilation of his motor traffic accident report setting out details of registration and insurance of the accident vehicle relied upon what he was told by the driver afterwards. There was a clear conflict of evidence between the driver and the policeman about the particulars of registration and insurance.

Held

1. The plaintiff has failed to make out his case to show that the vehicle was registered and insured with the defendant, as alleged in his statement of claim.

2. The fact of registration and insurance required strict proof, Ambon v Motor Vehicles Insurance (PNG) Trust (1992) N1116.

3. In the absence of certificates of registration or insurance, the conflict of evidence left the Court with no basis for a presumption of insurance.

Cases Cited

Ambon v Motor Vehicles Insurance (PNG) Trust (1992) unreported N1116.

Kei v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 195.

Counsel

M Thoke, for the plaintiff.

A Kandakasi, for the defendant.

7 December 1992

BROWN J: This plaintiff aged 35 claims damages for personal injuries suffered by the negligence of a driver of a motor vehicle. The accident is alleged to have occurred on or about 30 March 1990 on the Sirunki road off the Highlands Highway near Laiagam, Enga Province. I should say that I am satisfied that the accident was caused by the driver's negligence, for he gave evidence of losing control when driving too fast, whereupon the vehicle overturned, throwing the plaintiff, who was a passenger on the tray of the utility, out onto the roadway.

I refused the defendant (hereinafter Trust) leave to amend its defence at the trial to allege contributory negligence. In its defence filed, the Trust denied the accident. Hence, it is inappropriate at the trial to now say, on the other hand, if there was an accident, the plaintiff was partly to blame for his injuries. If the fact of the accident was merely "not admitted", putting the plaintiff to proof, then an amendment seeking to allege contributory negligence may not come as such a surprise. But here, without notice, the defendant cannot now make that assertion. The plaintiff would be unfairly prejudiced at this late stage. He comes to Court to prove issues on the pleadings, but cannot expected to be ready to face issues not even raised obliquely by the defence.

I, consequently, refused to allow the amendment to the defence and the trial proceeded.

In his statement of claim,...