Motor Vehicles Insurance (PNG) Trust MVIT v Salio Tabanto

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Hinchliffe J, Sevua J
• Judgment Date: 12 May 1995
• Court: Supreme Court
• Judgement Number: SC480

Supreme Court: Kapi DCJ, Hinchliffe J, Sevua J

Judgment Delivered: 12 May 1995

SC480

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 139 of 1991

BETWEEN:

MOTOR VEHICLES INSURANCE (PNG) TRUST

Appellant

AND:

SALIO TABANTO

Respondent

LAE : Kapi DCJ, Hinchliffe J & Sevua J

27 March, 12 May 1995

JUDGMENT

Appeal — Negligence — Liability — Proper approach to determining

contributory negligence for riding in the back tray of a vehicle which does not have a PMV licence.

Appeal — General Damages — Proper award.

A. Kandakasi for the Appellant

W. Neill for the Respondent

12 May 1995

BY THE COURT: Salio Tabanto (hereinafter referred to as "the respondent") claimed damages for injuries received in a motor vehicle accident against the Motor Vehicles Insurance Trust (hereinafter referred to as "the appellant") pursuant to s 54 of the Motor Vehicles (Third Party Insurance) Act (Ch 295).

The motor vehicle involved in the accident carried registration number AGA.594. This vehicle is described as a Toyota Dyna truck with a back tray. It was registered but did not have a PMV license. The evidence at the trial does not indicate in any detail the type of tray. The respondent was sitting in the back tray. There was another passenger Sagia who also sat with him in the back tray.

The vehicle was travelling along the Highlands Highway between Yonki and Kainantu in the Eastern Highlands Province and at a point along the road called Kolwara, the vehicle skidded on a corner, turned about face and hit a cement culvert and the respondent was thrown to the ground and he received injuries to his left hand.

A report by Dr Hudson dated 10 March 1987 described the injuries as follows:

"There is no injury of the left thumb. All points of the left hand fingers (index to little) are stiff, with about 10% of the normal range of motion. The thumb is opposable normally only to the index finger, and weakly to the others. He is unable to grasp or grip normally with the left hand. I would estimate that the function of the left hand for normal work activities has been reduced to about 10% of the normal function, and that this loss of function is permanent. Physiotherapy may be able to restore a small portion of the loss function."

The trial judge estimated the loss of function of the left hand within the range of 60% — 90%. As a result of the injuries received, the respondent's employment as a caretaker/janitor at the Aiyura National High School was terminated.

The trial judge concluded that the driver of the vehicle was negligent in causing the accident and the loss of employment by the respondent was a direct result of the injuries received. He awarded the following damages:

Pain and suffering and loss of amenities K12,000

Interest K 480

Loss of earnings K 9, 338

Interest K 1, 868

Total K23, 686

The appellant has appealed against the decision on the following grounds:

"3. The grounds relied on in support of the Appeal are as follows:

(a) His Honour erred in finding that the Plaintiff was not contributory

negligent when there was no or no sufficient evidence before him upon which
such a finding could be made;

(b) His Honour erred in failing to find that the Plaintiff was
contributory negligent by reason of voluntarily sitting in the back
tray of the vehicle where there was no proper seating for him;

(c) His Honour erred in finding that the Plaintiff's net fortnightly
income and loss was K77.00;

(d) His Honour erred in awarding K12,000.00 for general damages,
which award was excessive; and

(e) His Honour erred in failing to place any or any sufficient weight
on the evidence of the Plaintiff's old age and the fact that he was
right handed, when awarding damages."

Contributory Negligence

Paragraph 4 of the appellant's defence raised the issue of contributory negligence by the respondent alleging, inter alia, that the respondent was not sitting in a safe position in the vehicle. The record in the appeal book shows that neither the counsel for the respondent nor counsel for the appellant made any submissions on the issue. The trial judge in his judgment did not expressly deal with the issue.

Nevertheless, counsel for the appellant has submitted that there was some evidence which raised the issue of contributory negligence on the part of the respondent and that the appellant is entitled to raise the issue on appeal. He based this submission on the proposition that this Court has very wide powers under s 6 of the Supreme Court Act and may entertain a ground of appeal in relation to an issue which was raised by the facts at the trial but was not dealt with by the parties or the trial judge.

It is not necessary for us to decide this or consider the scope of the power of the Supreme Court under s 6 of the Supreme Court Act as counsel for the respondent has conceded that the appellant is entitled in the circumstances of this case to raise the ground of appeal relating to contributory negligence.

Counsel for the appellant submitted that under the Motor Traffic Act and the Regulations made thereunder, public motor vehicles are licensed to carry passengers. Section 30 and Sch. 3A of the Regulations prescribe requirements for construction of seats where the vehicle is a truck (as in this case) and other requirements such as side bars, roll bars and covering of the passenger area and the entrance to the passenger area. He submitted that these requirements relate to the safety of passengers. He submitted that the effect of this legislation is that anyone who carries any passenger on a truck without any PMV license, does so negligently and anyone who voluntarily rides on any such vehicle does so at his own risk and thereby must accept some contributory negligence on his own part. He referred to National Court judgments by Woods J in support of this proposition. See Maria Sam v Motor Vehicles Insurance (PNG) Trust (Unreported judgment of the National Court dated 20 December 1991, N1022); Kulno Kanzie v Motor Vehicles Insurance (PNG) Trust (Unreported judgment of the National Court, dated 3 February 1992, N1030); Kay Wally v Motor Vehicles Insurance (PNG) Trust (Unreported judgment of the National Court dated 3 February 1992, N1029); Joe Ongulgo v Motor Vehicles Insurance (PNG) Trust (Unreported judgment of the National Court dated 14 February 1994, N 1195).

In reply, counsel for the respondent referred to an amendment to the Motor Traffic Regulations in 1990 (Statutory Instrument No 12 of 1990) which deals specifically with seat belts. In essence he submitted that this regulation only deals with vehicles that are fitted with seat belts and has no application to vehicles which are not fitted with seat belts.

He further submitted that there is no provision under the law either expressly or impliedly which prohibits anyone from riding on a vehicle other than those vehicles licensed to carry passengers. He submitted that the fact that a passenger rides in a vehicle which does not have a PMV license, on it's own does not amount to contributory negligence. He conceded, however, that it is a consideration to be taken into account with all other relevant factors in determining whether there is contributory negligence.

As far as we are aware, this issue has not been considered by the Supreme Court. Therefore, in this case, we have been asked to provide some guidance as to the proper approach to this question.

We point out that in...