Omben Kumbe v Motor Vehicles Insurance Ltd (2005) N2860

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 28 July 2005
• Citation: (2005) N2860
• Judgment Number: N2860
• Year: 2005
• Docket Number: WS No 828 of 2003

Full Title: WS No 828 of 2003; Omben Kumbe v Motor Vehicles Insurance Ltd (2005) N2860

National Court: Cannings J

Judgment Delivered: 28 July 2005

N2860

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 828 OF 2003

OMBEN KUMBE

V

MOTOR VEHICLES INSURANCE LTD

MT HAGEN : CANNINGS J

14, 19, 21 OCTOBER 2004, 28 JULY 2005

Insurance – third party liability insurance – compulsory motor vehicle insurance legislation – whether claim for damages in respect of bodily injury to a person arose out of the use of a motor vehicle – whether motor vehicle insured – onus of proof – standard of proof – Motor Vehicles (Third Party Insurance) Act 1974, Section 54.

Negligence – motor vehicle accident – particular relationships – motor vehicle driven across public park – playing field – duty of care owed by driver to persons using public park – standard of care – causation – whether any break in chain of causation due to inappropriate primary-trauma care.

Damages – measure of – personal injuries – motor vehicle accident – assessment exceeding statutory limit on liability – damages limited to K150,000.00 – Motor Vehicles (Third Party Insurance) Act, Section 49(2).

Interest – award of interest on damages – Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 – interest awarded in addition to damages.

Costs – discretionary – costs awarded in addition to damages.

The plaintiff, a young man in his final years at school, claimed that while playing touch rugby in a public park, he was hit by a utility truck, driven negligently. He claimed that the vehicle was insured by the defendant. He claimed that as a result of the driver’s negligence he suffered severe and permanent injuries and was rendered a quadriplegic. The defendant, denying liability, claimed that the plaintiff had not proven that his injuries were caused in the manner alleged or that the vehicle was insured. Further, that if the defendant is liable, the amount of damages should be reduced because of inappropriate primary trauma care given by bystanders who transported the plaintiff to the hospital.

Held:

1 A person making a claim for damages in respect of bodily injury under the Motor Vehicles (Third Party Insurance) Act has the onus of proving that the injury was caused by or arose out of the use of a motor vehicle in the circumstances prescribed by Section 54(1) of the Act.

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

3 In a case where the plaintiff presented eyewitness evidence of a collision between a motor vehicle and himself in a public park, corroborated by medical evidence and evidence of a police investigation, and where the defendant presented no evidence, the onus of proof was discharged to the required standard.

4 In circumstances where the plaintiff presented evidence that the vehicle was insured, and where the defendant presented no evidence, and given that the defendant was in the best position to give evidence rebutting the plaintiff’s claim, the onus of proof that the vehicle was insured was discharged, notwithstanding the plaintiff’s failure to adduce a certificate of insurance as evidence. Imambu Alo v MVIT [1992] PNGLR 487 and Pare Umbe and Ngants Kopi v MVIT (1998) SC585, distinguished.

5 The driver of the motor vehicle committed the tort of negligence in relation to the plaintiff. The defendant is therefore liable to the plaintiff for damages.

6 Damages were assessed for general damages (K280,000.00); future economic loss (K40,000.00); special damages (K14,000.00); special house (K30,000.00); future medical and related expenses (K24,000.00); and nursing expenses (K24,000.00); a total of K412,000.00.

7 However, the total amount of liability of the defendant is by Section 49(2)(a)(i) of the Motor Vehicles (Third Party Insurance) Act capped at K150,000.00 and that is accordingly the amount of damages payable by the defendant to the plaintiff.

8 Interest and costs are payable in addition to the total amount of damages. Reading v MVIT [1988] PNGLR 266 applied.

9 Interest of K11,103.20 is awarded under the Judicial Proceedings (Interest on Debts and Damages) Act.

10 The total judgment sum is K161,103.20.

Cases cited

The following cases are cited in the judgment:

Alan Arthur Morris v PNG Associated Industries Ltd (1980) N260(L)

Aundak Kupil and Kauke Kensi v The State [1983] PNGLR 350

Bepiwam Ambom v MVIT (1992) N1116

Browne v Dunn (1893) The Reports 67

Charles Pupu v Pelis Tomilate and The State [1979] PNGLR 108

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Elizabeth Moini v Government of Papua New Guinea [1977] PNGLR 39

Garo Kei v MVIT [1992] PNGLR 195

Haiveta v Wingti (No 1) [1994] PNGLR 160

Imambu Alo v MVIT [1992] PNGLR 487

Jack Lundu Yalao v MVIT (1995) N1386

Joe Danga v MVIT (1997) N1665

John Taka v Leo Kipi and The State [1995] PNGLR 254

Kamtai Waine v MVIT [1993] PNGLR 446

Kembo Tirima and Others v Angau Memorial Hospital Board and The State (2005) N2779

Kepa v Boi Gerek and The State [1991] PNGLR 424

Martha Limitopa and Poti Hiringe v The State [1988-89] PNGLR 364

Martin Kilte v MVIT (1992) N1085

Meddie Serive v The State [1981] PNGLR 549

MVIT v Reading [1988] PNGLR 236

Pare Umbe and Ngants Kopi v MVIT (1997) N1574

Pare Umbe and Ngants Kopi v MVIT (1998) SC585

Pinzger v Bougainville Copper Ltd [1983] PNGLR 436

Pinzger v Bougainville Copper Ltd [1985] PNGLR 160

Pokowan Kandaso v MVIT (1992) N1074

Reading v MVIT [1988] PNGLR 266

Robert Younger Kerr v MVIT [1979] PNGLR 251

Sidi Adevu v MVIT [1994] PNGLR 57

Swingley Oni v MVIT (2004) N2767

The State v Kevin Anis (2003) N2360

The State v Pennias Mokei (No 1) (2004) N2606

The State v Peter Oh Piom Mo [1998] PNGLR 66

Tumunda Toropo v Jack Awabe and The State (2001) N2116

Wallace v MVIT [1991] PNGLR 341

Abbreviations

The following abbreviations are referred to in the judgment:

MVA – motor vehicle accident

MVIL – Motor Vehicles Insurance Limited

MVIT – Motor Vehicles Insurance Trust

TRIAL

This was an action in which the plaintiff sought damages for personal injuries suffered as a result of a motor vehicle accident.

Counsel

P Dowa for the plaintiff

S Reid for the defendant

CANNINGS J:

INTRODUCTION

The plaintiff, a man aged 20, seeks damages for injuries he claims he received as a result of a motor vehicle accident. He says that he was playing touch rugby in a public park when a motor vehicle insured by the defendant was driven across the park and collided with him, causing him to become a quadriplegic. The defendant, Motor Vehicles Insurance Ltd (MVIL), denies liability. It argues that the plaintiff has not proven his case. The plaintiff is a quadriplegic but he did not incur that injury in the manner he alleges. There was no motor vehicle accident, the defendant says. Even if there was, the vehicle that hit the plaintiff was not insured. If, however, the court finds that the defendant is liable, the amount of damages should be reduced because of poor primary-trauma care given to the plaintiff by bystanders who transported him to the hospital.

The case is therefore about both liability and quantum of damage.

BACKGROUND

The alleged incident

The alleged incident that resulted in the plaintiff’s injuries is said to have occurred in Mt Hagen late in the afternoon of Monday 21 October 2002. The plaintiff, then aged 17, claims that he was playing touch rugby in the middle of the Pope John Paul II Oval, when a vehicle was driven across the park and collided with him. Pope John Paul II Oval is an area of several hectares of open public space in the centre of Mt Hagen town. It is referred to interchangeably in this judgment as an oval, park or field.

Statement of claim

On 16 June 2003 Dowa Lawyers of Mt Hagen filed a writ of summons on behalf of the plaintiff. MVIL was the first defendant. Charles Pora, the owner of the vehicle that allegedly struck the plaintiff, was the second defendant. The writ was served on 31 July 2003.

The statement of claim attached to the writ alleged that the second defendant owned the vehicle, a Nissan utility registration No HAE 071, that struck the plaintiff. The vehicle was insured with the defendant by policy No 2254178 covering the period from 30 December 2001 to 30 December 2002. The driver of the vehicle, Patrick Pat, drove without due care and attention, failed to keep a proper lookout, drove at excessive speed, drove on to a public park without due competence and skill and failed to apply the brakes in time to avoid an accident. The plaintiff suffered severe injuries because of the driver’s negligence, including quadriplegia. Prior to the accident the plaintiff was a student attending Hagen Park Secondary School and in good health. He claimed damages for:

pain, suffering and loss of amenities;

loss of expectation of life;

future economic loss;

past out of pocket expenses;

future medical expenses;

future nursing and housekeeping;

a special house.

Defence

On 8 August 2003 Melanesian Legal Group of Port Moresby, representing both defendants, filed a defence, denying liability. They did not admit that the incident had taken place; denied that the vehicle was insured;...