Bepiwan Ambom (or Ambon) v Motor Vehicles Insurance (PNG) Trust (MVIT)

• Jurisdiction: Papua New Guinea
• Citation: (1992) N1116
• Date: 10 November 1992
• Court: National Court
• Year: 1992

National Court: Brown J

Judgment Delivered: 10 November 1992

1 Negligence—motor vehicle accident—vehicle rolled over—res ipsa loquitur—no real explanation for accident

2 Evidence—motor vehicle registration and insurance—absence of certificates—sufficiency of proof

3 Damages—personal injuries—plaintiff 20 years old female school student reliant on subsistence farming parents—loss of arm—formal amputation at mid humerus—severe shock—life threatening injury—minor lacerations to feet, knee and thigh

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Brown J: This young lady was injured in a motor vehicle accident which occurred on the 26 August 1988 on the road to Mount Hagen. She was a passenger in the vehicle travelling from Wabag. She sues the Trust as the authorised Third Party Insurer of the vehicle, a Nissan Patrol pursuant to the provisions of s54 of the Motor Vehicles (Third Party) Insurance Act.

"Subject to subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of—

(a) a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle in a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established.

The facts are that she and a girlfriend left Wabag after school on the day at about 6pm in this vehicle driven by one Steven Kuru, to spend the weekend in Mount Hagen. At the Togoba turn–off, a short distance out of Mount Hagen town, the vehicle left the bitumen, rolled over and seriously injured the plaintiff. The plaintiff alleges that the accident was due to the negligence of the driver who drove too quickly, was careless and was affected by alcohol.

I am satisfied the driver was affected by alcohol from the evidence of the girl and Constable Saliemunge of the Traffic Branch, Mount Hagen Police (who attended the scene and prepared a traffic accident report). From the distance shown in the sketch the vehicle would appear to have been speeding to roll so far before coming to rest, I need not attempt to reconstruct the events leading up to and during the accident to find speed or carelessness. There was no other vehicle involved. In the circumstances the maxim res ipsa loquitur applies and negligence is assumed.

The question raised by the defence however, remains. Was the girl guilty of contributory negligence?

She said in her evidence that she sat in the front of the vehicle in the middle seat next to the driver. On the way to Mount Hagen he was drinking beer and speeding. She said the accident happened at about 9:20pm when the vehicle turned over because the driver was driving too fast. Her left arm was crushed and she was taken to the Togoba Health Center where her condition was stabilised before she was taken to Mount Hagen Hospital. There she was...