Kamtai Waine v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 19 February 1993
• Citation: [1993] PNGLR 446
• Court: National Court
• Year: 1993
• Judgement Number: N1134

National Court: Woods J

Judgment Delivered: 19 February 1993

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KAMTAI WAINE

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

25-26 January 1993

19 February 1993

NEGLIGENCE — Liability — Motor vehicle accident — Proof of registration and insurance.

DAMAGES — Death — Dependency claim — Widows and children — Provincial minister — Salary on which to base future loss.

Facts

This is a claim for damages by three dependent wives and three infant children of a provincial minister who died from injuries received whilst he was a passenger in a motor vehicle which went out of control and plunged down a slope into a river. A police witness gave evidence that due to the condition of the road and the bad weather there was nothing the driver could have done to stop the vehicle sliding off the road. No charges were laid against the driver. The police witness also gave evidence he recorded the vehicle's registration number and expiry date and noted that there was a third party insurance. There was, however, no safety sticker. He had sighted the registration papers, but did not conduct a search of the traffic registry. The defendant submits that the vehicle has not been properly identified.

Held

1. The driver, on the balance of probabilities, was negligent. If an earth road is in bad condition and there has been recent rain, there is a greater onus on the driver to take care when driving.

2. Unchallenged oral evidence of a police witness as to the registration number, expiry date of such registration, the existence of a third party insurance policy and registration papers is enough evidence to satisfy the court as to the identity, registration, and insurance of the vehicle on the balance of probabilities, notwithstanding the lack of a safety sticker and a traffic registry search.

3. The deceased was a provincial politician and, notwithstanding that his future as a Minister was uncertain, the court may use the salary figures at the date of death to calculate future loss, as he was a leader in the community.

Cases Cited

Alo v Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 487.

Counsel

DL O'Connor for the plaintiff.

A Kandakasi for the defendant.

19 February 1993

WOODS J: This is a claim on behalf of the widows and children of Yuale Gikau, who it is alleged died from injuries he received in a motor vehicle accident on 22 March 1990. He was a passenger in a motor vehicle, registration AGE 890, driven by Gikau Yuale, which went out of control and plunged down a river bank on the Dege Paume road in the Simbu Province between Gomgale village and the Gumine township.

The lawyer for the plaintiff indicated to the court at the beginning of the trial that the named plaintiff Kamtai Waine, who was the first wife of the deceased, had died a month ago. In view of the difficultues of ascertaining who is entitled to act on behalf of the estate of the plaintiff and in the circumstances of PNG, I feel it is appropriate in a dependency claim like this, where the plaintiff was putting her name forward as the initiator of these proceedings, to substitute the second wife, Polo Del, as the plaintiff.

The witnesses for the plaintiff as to the circumstances of the accident were a passenger and the police officer who did the investigation into the accident. The passenger said that she was on the back of the Toyota utility when there was some loose gravel and the road was slippery. She said that she and two others who were on the back of the utility jumped off when the vehicle got into trouble and they do not know what happened to it after that, as it was at night-time. The main evidence of the circumstances of the accident comes from the police constable, who investigated it the next day, so, unfortunately, we are left with mainly the hearsay evidence from him and his theories based on the signs he saw at the scene. He describes the road as a very narrow earth road and the scene was a slope after crossing a river. It was very muddy and it had been raining, so the road surface was very slippery. In attempting to negotiate the slope, the vehicle slipped sideways and then off the side of the road down into the iver. The constable felt that...