Repas Waima v MVIT

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 01 July 1992
• Citation: [1992] PNGLR 254
• Court: National Court
• Year: 1992
• Judgement Number: N1075

National Court: Woods J

Judgment Delivered: 1 July 1992

N1075

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

REPAS WAIMA

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J

19 May 1992

1 July 1992

NEGLIGENCE — Death resulting from negligent driving of motor vehicle — Liability — Contributory negligence for riding in an uninsured vehicle.

DEPENDENCY CLAIM — Claim by widow of deceased and others — Whether parents, parent-in-law, sister and brother qualify as dependents.

PRACTICE AND PROCEDURE — Pleading under Order 8 r 33 is a code of pleading — Failure to plead relevant matters — Need to plead deceased's employment and salary details before they can be brought into evidence — Pleading in dependency claims — Assessment of damages.

Facts

The plaintiff's husband was killed in a motor vehicle accident caused by the negligent driving of the driver. The registration and insurance of the vehicle had expired at the date of the accident.

The plaintiff claimed against the insurers on behalf of herself, her son and parent and the deceased's parents, brother and sister as dependents.

Held

1. The expiry of the registration and insurance did not affect the status of the claim under s 54 of Motor Vehicles (Third Party Insurance) Act.

2. People must accept some responsibility for accepting rides on vehicles that are unregistered and uninsured, and a person who rides on such a vehicle and is injured is contributorily negligent.

3. There is an obligation in society by custom or purely family love for a son who is in a wage or salaried employment to assist his parents and as they get older such assistance could become total dependency.

Cases Cited

Papua New Guinea cases cited

Collins v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580

Oroeala v Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 645

Wally v Motor Vehicles Insurance (PNG) Trust (1991) unreported N1029

Other cases cited

Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873

Chan Wai Tong v Li Ping Sum [1985] AC 446

Hayward v Pullinger & Partners Ltd [1950] 1 All ER 581

Counsel

P Kopunye for the plaintiff

A Kandakasi for the defendant

1 July 1992

WOODS J: This is a claim by the plaintiff for damages following the death of her husband Simon Waima, who was killed in a motor vehicle accident near Tambul in the Western Highlands on 4 November 1989. The plaintiff is claiming damages on behalf of herself and their son and the parents and sister and brother of the deceased and her parents.

It is alleged that the death was caused by the negligent driving of one Punere Kini Winip of a Toyota Hilux utility registered number ALA 989 whereby the vehicle ran off the road and overturned. It is alleged that the driver was driving too fast for the condition of the road.

REGISTRATION AND INSURANCE OF THE VEHICLE

It became apparent from the evidence that there was some confusion about the status of the registration of the vehicle. The investigating officer noted from his enquiries that the vehicle had been registered in the North Solomons Province and the expiry date of the registration was 17.10.89 and the owner was a person from Tambul. However, the defendant Trust brought evidence that the registration had expired in October 1987 and the registered owner was a company in North Solomons. The evidence brought by the defendant about the ownership and insurance of the vehicle contradicted the evidence of the police officer. Whatever the situation was, the registration and, therefore, insurance may have lapsed at the time of the accident. However, I do not see that this affects the status of the claim against the Trust, as the wording of the claim is wide enough to bring it within s 54 of the Motor Vehicles (Third Party Insurance) Act. Section 54 provides for claims to be brought against the Trust both as regards insure vehicles and uninsured vehicles. If the vehicle was uninsured at the time of the accident, it is nevertheless identified and the driver is identified.

LIABILITY AND NEGLIGENCE

The plaintiff brought witnesses who said they were with the deceased on 4 November in the subject utility when it was going down a hill out of Tambul too fast and ran off the road and overturned. They said they were on the back with Simon and they received injuries and Simon was killed. The investigating officer did not attend the scene until the next day. In spite of the challenge to his enquiries about the registration and insurance of the vehicle, I see no reason to doubt his report as to how the accident happened and his conclusion that the driver was negligent and should, therefore, have been charged with dangerous driving causing death. The defendant has submitted that I should be in doubt as to whether the accident involving the vehicle happened at all as all the witnesses to the accident are relatives of the deceased. There is no evidence before me to suggest that, apart from the confusion over the registration; and I find that the confusion is not enough to dispel the stories given to me about the acident. I am satisfied on the evidence before me that there was an accident involving a Toyota Hilux registered number ALA 989 which resulted in the death of Simon Waima, and that there was negligence in the driving of that vehicle which led to the accident.

The defendant further submits that, if there was an accident as alleged, the deceased was partly negligent in accepting a ride on an uninsured vehicle and riding on the back of a vehicle without safety features for the protection of people on the back. With respect to riding on an uninsured vehicle, people must accept some responsibility for accepting rides on vehicles that are not registered and thereby not insured. If people are prepared to accept the benefits of motor vehicles, they must, therefore, accept the responsibility. Current registration and, therefore, insurance means...