Kule Bagu v Motor Vehicles Insurance Limited

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 06 February 2023
• Neutral Citation: N10111
• Citation: N10111, 2023-02-06
• Counsel: Mr. T. Ilaisa, for Plaintiff,Ms. B. Kumo, for Defendant
• Hearing Date: 13 August 2021,19 November 2022,11 March 2022,05 April 2023,06 February 2023,19 November 2021,05 April 2022
• Docket Number: WS NO 517 OF 2018
• Court: National Court

N10111

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 517 OF 2018

Between

Kule Bagu

Plaintiff

v.

Motor Vehicles Insurance Limited

Defendant

Waigani: Makail, J

2021: 13^th August, 19^th November

2022: 11^th March, 5^th April

2023: 6^th February

LIABILITY — Negligence — Motor vehicle accident — Personal injuries — Breach of duty of care — Contributory negligence — Inevitable accident — Proof of

ASSESSMENT OF DAMAGES — General damages for pain and suffering — Loss of vision of one eye — Permanent facial disfigurement — Special damages — Medical and associated costs

Cases Cited:

MVIL v. Kawage (2014) SC1362

PNG Institute of Medical Research v. PNGBC (1999) N1934

Pomat v. Consort Express Lines Ltd (2020) N8300

Lubbering v. Bougainville Copper Ltd [1977] PNGLR 183

Wally v. Motor Vehicles Insurance (PNG) Trust (1992) N1029

Yalao v. MVIT [1997] PNGLR 441

Joseph Dikini v. John Wamei (1997) N1562

John Pias v. Michael Kodi & Ors (2006) N2972

Tony v. The State (2008) N3477

Kandakasi v. The State (2017) N6601

Awaparu v. Commissioner of Police & The State (2018) N7177

Andrew Moka v. MVIL (2004) SC729

Kol v. Shorncliffe (PNG) Ltd (2001) N2121

Lulug v. Michael (2020) N8585

Counsel:

Mr. T. Ilaisa, for Plaintiff

Ms. B. Kumo, for Defendant

Public Solicitor: Lawyers for Plaintiff

Jema Lawyers: Lawyers for Defendant

JUDGMENT

6^th February, 2023

1. Makail J: This is a contested trial on liability and assessment of damages.

Brief Facts

2. The plaintiff claims damages for multiple personal injuries he sustained in a motor vehicle accident along Magi Highway in Central Province on 3^rd August 2016 rendering amongst others, injuries and disabilities including 100% loss of vision in his right eye.

3. The Court acknowledges the helpful written submissions of learned counsel for both parties in addition to their oral submissions addressing the issues for determination at trial.

Evidence

4. In support of the plaintiff's claim the following affidavits were tendered and marked as exhibits:

• Affidavit of plaintiff filed 26^th February 2019 – Exhibit “A”;

• Affidavit of Koiari Gini filed 26^th February 2019 – Exhibit “B”;

• Affidavit of Gandy Rotona filed 26^th February 2019 – Exhibit “C”;

• Affidavit of Fred Mune filed 26^th February 2019 – Exhibit “D”;

• Affidavit of Ken Pamenda filed 28^th February 2019 – Exhibit “E”;

• Affidavit of Dr. Takovi Maga filed 26^th February 2019 – Exhibit “F”;

• Affidavit of Dr. Lina Lep filed 28^th February 2019 – Exhibit “G”; and

• Supplementary Affidavit of plaintiff filed 15^th November 2021 – Exhibit “H”.

5. The defendant tendered no affidavits to rebut the evidence of the plaintiff and his witnesses.

Findings

6. Based on the affidavits of the plaintiff, Koiari Gini, Gandy Rotona, Fred Mune and Ken Pamenda, the Court makes the following findings of fact:

(a) The plaintiff is a primary school teacher, who teaches Grade 6 at Dakevakomana Primary School in Rigo District in Central Province.

(b) On 3^rd August 2016 the plaintiff travelled in an open back Land Cruiser bearing registration no: CBA 236 from Port Moresby to Dakevakomana village in Rigo District along Magi Highway. The plaintiff was seated at the back trailer directly behind the driver's seat.

(c) When the motor vehicle got to Kovoro village and as it was climbing up a steep hill it began to lose power, then stopped and began rolling backwards picking up momentum as it descended downhill.

(d) The motor vehicle then violently swerved and overturned on the side of the road, throwing the plaintiff and other passengers out of it.

(e) Prior to the accident the motor vehicle encountered mechanical problems which prompted the driver to stop two or three times along the way. Despite being aware of the mechanical condition of the engine and/or brakes, the driver continued the journey to Dakevakomana village.

Issues

7. The contentious legal issues presented for determination are as follows:

(a) Whether the plaintiff gave notice to the defendant of his intention to make a claim for damages prior to the filing of this action.

(b) Whether or not the subject motor vehicle with registration no: CBA-236 was insured by the defendant.

(c) Whether the accident giving rise to the plaintiff's injuries and damages arose because of an inevitable accident.

(d) Whether the injuries and disabilities sustained by the plaintiff are a result of the negligence of the driver and owner of the motor vehicle.

(e) Whether the plaintiff's injuries and disabilities were solely or partly caused because of his own negligence.

(f) How much should be awarded as damages to the plaintiff?

Notice of Claim

8. The plaintiff refers to his supplementary affidavit and submits that it provides evidence of him serving his written notice dated 19^th January 2017 of his claim for compensation on the defendant. The letter was served on the same day. Service was within six months required under the Motor Vehicles (Third Party Insurance) Act, Ch 295 (“MVIT Act”). However, the plaintiff did not produce the actual letter dated 19^th January 2017.

9. He does produce a letter from the defendant dated 14^th February 2017 which acknowledged receipt of his letter to the defendant dated 19^th January 2017. He submits that the defendant's letter dated 14^th February 2017 confirms that he had served a notice of claim on the defendant to comply with Section 54(6) of the MVIT Act. The defendant submits otherwise, that there is no evidence of a notice of claim given to it. And that, its letter dated 14^th February 2017 does not constitute notice within the meaning of Section 54(6) of the MVIT Act.

10. That may be so, but the defendant does not deny receiving a letter of notice from the plaintiff dated 19^th January 2017. Neither does it deny acknowledging the letter of notice in its letter of response dated 14^th February 2017. It should be noted that the letter from the defendant dated 14^th February 2017 has:

(a) been addressed to the plaintiff,

(b) titled “Your Claim”,

(c) acknowledged receipt of a letter from the plaintiff dated 19^th January 2017, and

(d) Asked the plaintiff to provide original treatment notes and clinic book for the defendant's inspection and return.

11. On the evidence of the reference to the letter of 19^th January 2017 and acknowledgment by the defendant in its letter of 14^th February 2017, the Court is satisfied that the plaintiff gave notice of claim in a letter dated 19^th January 2017 to the defendant and has complied with the precondition in Section 54(6) of the MVIT Act. Therefore, this proceeding is competent.

Insured Motor Vehicle

12. Learned counsel for the plaintiff refers to paragraph 6(d) of the amended statement of claim and submits that the plaintiff has pleaded that the subject motor vehicle was insured by the defendant.

13. Marked as annexure “A” to the affidavit of Ken Pamenda is a copy of a Police Accident Report. The member of the police named as Ken Pamenda investigated the accident and prepared this report. It contains the particulars of the motor vehicle and how the accident occurred.

14. The defendant does not contest the existence and veracity of this report. In fact, learned counsel for the defendant abandoned submissions in her written submissions to contest the issue of insured motor vehicle.

15. The Court accepts learned counsel's submission that the Police Accident Report is sufficient for the purpose of proving that the motor vehicle was insured. As the Supreme Court in MIVL v. Kawage (2014) SC1362 held:

“2) The relevant standard of proof is on the balance of probabilities.

3) In some circumstances it will be necessary to prove that the vehicle was insured, and in proving that it will not always be necessary to produce in evidence a certificate of insurance, for example where a police investigating officer gives evidence of details of insurance and MVIL does not take the opportunity to effectively rebut that evidence, a Court is entitled to find that the onus of proof has been discharged and that in fact the vehicle was insured.

4) There is no rule of law or practice that the onus of proving that a vehicle is insured can only be discharged by presentation of a certificate”.

16. Given the concession by the defendant and on the evidence of the Police Accident Report, the Court is satisfied that the plaintiff has discharged the onus of proof that the subject motor vehicle was insured by the defendant at the time of the accident.

Negligence

17. It is the plaintiff's allegation that the owner and driver of the subject motor vehicle were respectively negligent in the handing and/or maintenance of subject motor vehicle which resulted in the accident.

18. The particulars of negligence against the owner are as follows:

(a) failed to take any adequate precautions for the safety of the plaintiff and other passengers by ensuring that the motor vehicle was roadworthy.

(b) failed to service the motor vehicle which could have reduced the risk of exposing the plaintiff and other passengers to risk of injury or peril.

(c) exposed the plaintiff to risks of injury which could have been avoided by reasonable care on his part.

(d) allowed the driver of the motor vehicle to pick up passengers including the plaintiff knowing well that his motor vehicle had mechanical problems.

19. The particulars of negligence against the driver are as follows:

(a) failed to stop the journey and ask other road users for assistance knowing that the motor vehicle had mechanical problems.

(b) failed to stop the journey and call the owner of the motor vehicle to arrange for a two-truck to two the motor vehicle.

(c) failed to stop the journey and allow the plaintiff and other passengers to seek alternative transport.

(d) advised the plaintiff and other passengers that the motor vehicle was unroadworthy and that they make their own journey home.

(e) exposed the plaintiff and other passengers in a position of great peril in the circumstances.

20. There is no question...