Alois Harry Ken as next friend for Deceased Infant Robert Alois Ken v Motor Vehicle Insurance Limited

• Jurisdiction: Papua New Guinea
• Judge: Tamade AJ
• Judgment Date: 04 November 2022
• Neutral Citation: N10020
• Citation: N10020, 2022-11-04
• Counsel: Ms. Nicole Kamjua, for the Plaintiff,Mr. Jessy Biar, for the Defendant
• Hearing Date: 18 July 2022,04 November 2022
• Docket Number: WS NO. 202 OF 2020
• Court: National Court

N10020

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 202 OF 2020

Between:

Alois Harry Ken as next friend for Deceased Infant Robert Alois Ken

Plaintiff

v.

Motor Vehicle Insurance Limited

Defendant

Waigani: Tamade AJ

2022: 18^th July, 4^th November

JUDGEMENT — motor vehicle accident — negligent driving — death of a five year old child — best evidence principle and doctrine of res gestae discussedGEMENT — motor vehicle accident — negligent driving — death of a five year old child — best evidence principle and doctrine of res gestae discussed

Cases Cited Law:

Loa v Kimas [2014] PGNC 209; N5849

Bukoya v State [2007] PGSC 15; SC887

State v Wanjil [1997] PGNC 16; N1516

Dowsett Engineering (New Guinea) Pty Ltd v Edwards; re Jordan trading as Jordan Lighting [1979] PNGLR 426

Tuman v Motor Vehicles Insurance Ltd [2017] PGNC 375; N6923

Ibabe, an Infant, by his next friend, Ibabe v The State [1990] PGNC 47; N897

Robert Brown v. MVIL [1980] PNGLR 409

Popo v Papua New Guinea Electricity Commission [2014] PGSC 37; SC1360

Counsels:

Ms. Nicole Kamjua, for the Plaintiff

Mr. Jessy Biar, for the Defendant

Office of the Public Solicitor: Lawyers for the Plaintiff

Motor Vehicle Insurance Limited — In-house Counsel: Lawyers for the Defendant

4^th November, 2022

1. Tamade AJ: This is a dependency claim by the Plaintiff against the Defendant for the negligent driving causing death of the Plaintiff's son who was an infant at the time of death. The Plaintiff alleges that the Defendant is liable to pay damages for the loss of his son pursuant to the Motor Vehicle (Third Party Insurance) Act 1974.

2. On 28 March 2018 at around 6 pm, Alios Harry Ken was attempting to cross the road at 9 Mile at the former Port Moresby Show Ground with his children and his wife when his son was run over by a vehicle owned by BNG Trading Company Limited which was an Isuzu Truck white in Colour with the Registration No. BEQ 091. The subject vehicle at the time of the incident was driven by an employee of BNG Trading Company Limited.

3. The Plaintiff's claim is essentially for negligent driving by the driver of the vehicle that the driver, Steven Oa was driving at a very high speed, and he failed to apply the brakes promptly to avoid hitting the child. The facts of the case alleged that the deceased infant, five years of age at the time was crossing the road where there are double lines separated by a traffic island. The deceased mother had crossed over from the first lane over to the island across to the opposite lane when the Plaintiff was still with his brother attempting to cross the first lane to the island. As his mother turned back to see her children after she had reached the other side, she saw her son got hit by the speeding vehicle with loud music blaring from the car. The vehicle after hitting the child sped off and the infant's mother ran to her child however her son had succumbed to the tragic event.

4. At the trial of this matter, Mr. Biar of the Defendant raised objections to the evidence of the Plaintiff that under section 54 of the MVIL Act, the two important evidences are the Police Road Accident Report from the Police Traffic Officer who investigated the Report and the Medical Report from the medical doctor who conducted the medical examination of the deceased. Mr. Biar argues that these critical documents are hearsay as they were no adduced through the direct responsible officer and or medical doctor but were adduced through the Affidavit of the Plaintiff and Inspector Gabriel Kake.

5. It is also Mr. Biar's submissions that the Plaintiff's pleadings do not support the claim and are deficient and that the Plaintiff solely contributed to the loss of his son and therefore MVIL should not be liable.

Objections to Evidence

6. At the trial of this matter on hearing objections and arguments from counsel on the Police Road Accident Report and the Medical Report, I made a ruling that I will allow these evidence as in the absence of any other evidence, I found that it was good evidence and albeit the only evidence available and it was the best the Court could work with as having admonished counsel that perhaps counsel did not put in the work to get the case ready, the Court was left with that evidence as the Plaintiff's evidence, the Court would accept the evidence but decide on how much weight it was to give on the evidence. ¹

7. In the Fred Bukoya v The State² case, the principle of best evidence was discussed by the Supreme Court that:

“There was no evidence that the witnesses were not available, or that calling them would incur hardship, cost or delay. Not requiring the witnesses to be called offended the “best evidence” rule and resulted in the Appellant not receiving a fair hearing…”

8. Ms Kamjua of the Plaintiff concedes that these documents being the Police Road Accident Report and the Medical Report etc maybe hearsay contrary to the provisions of the Evidence Act as they have not been tendered through the author of these documents however, she argues the doctrine of res gestae. Ms Kamjua submits that the Police Officer who prepared the Police traffic Accident Report can not be reached as he is no longer with the Police Force and the doctors who examined the deceased could not be reached. I am of the view that Ms Kamjua's efforts have not been diligent enough and present in Court is a weary Plaintiff and his wife who want closure to this matter.

9. As to the deficiency of pleadings, Ms Kamjua submits that the evidence is sufficient to make out a case for the Plaintiff. I would implore counsel never to make out a half-baked case for their clients and to always walk an extra mile, always go beyond in diligently serving their clients, it is a profession mind you.

10. As to the doctrine of res gestae, it means the events, circumstances, remarks etc which relate to a particular case especially as constituting admissible evidence in Court. Acting Justice Lenalia (as he then was) in the case of State v Wanjil³ said it this way:

The doctrine of res gestae is mainly concerned with admissibility of statements made contemporaneously with the “factum probandum”. A fact may be relevant to the “factum probans” because it throws light on it by reason of its proximity in time, place or circumstances. It is said that under this doctrine evidence may be received although it may infringe the rule against hearsay, the opinion rule or the rule against self-corroboration. Thus, where an item of evidence forms part of the res gestae rule, simply means that, that item is relevant on account of its being made contemporaneously with the matters under investigation.

11. In the Supreme Court case of Dowsett Engineering (New Guinea) Pty Ltd v Edwards; re Jordan trading as Jordan Lighting⁴, Kearney J (as he then was) said this:

“If, however, it was not mere interpretation but simply second-hand hearsay, then in the particular circumstances of this case, I would agree with my brother Greville Smith that the additional link thereby involved does not weaken the strength of the chain and the evidence is admissible. The principle applicable is that laid down in Ratten v. The Queen[dlxviii]¹⁹:

“… hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”

There is no reason to limit the application of that principle to first-hand hearsay, though multiple oral hearsay would often in fact be unreliable. It is precisely in circumstances such as obtained here that a liberal interpretation of the res gestae rule...