Paru Goi v MVIL

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 July 2010
• Citation: (2010) N4093
• Court: National Court
• Year: 2010
• Judgement Number: N4093

Full : WS No 252 of 1999; Paru Goi v Motor Vehicles Insurance Limited (2010) N4093

National Court: Makail, J

Judgment Delivered: 22 July 2010

N4093

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 252 OF 1999

BETWEEN

PARU GOI

Plaintiff

AND

MOTOR VEHICLES INSURANCE LIMITED

Defendant

Mount Hagen: Makail, J

2008: 16th & 17th June &

2010: 22nd July

NEGLIGENCE - Liability - Personal injury claim - Claim arising from alleged motor vehicle accident - Alleged motor vehicle accident caused by negligence of driver - Denial of motor vehicle insured or uninsured and on public street - Proof of - Evidence of - Lack of - Claim not established on balance of probabilities - Claim dismissed - Motor Vehicles (Third Party Insurance) Act, Ch 295 - Section 54(1).

Cases cited:

Lucy Kongupi -v- Motor Vehicles Insurance (PNG) Trust (1992) N1043

Imambu Alo -v- Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 487

Bepiwan Ambon -v- Motor Vehicles Insurance (PNG) Trust (1992) N1116

Garo Kei -v- Motor Vehicles Insurance (PNG) Trust [1992] PNGLR 195

Martin Kilte -v- Motor Vehicles Insurance (PNG) Trust (1992) N1085

Jack Lundu Yalao -v Motor Vehicle Insurance (PNG) Trust (1995) N1386

Adevu -v- Motor Vehicle Insurance (PNG) Trust (1994) SC461

Motor Vehicle Insurance (PNG) Trust -v- Nande Waige & 2 Ors (1995) SC478

Kamtai Waine -v- Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 446

Yuye Kulau & Tupo Kankuwa -v- Motor Vehicles Insurance Limited (2008) N3700

Revit Mangoi -v- Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 327

Rot Moip -v- Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 485

Application of Jack Lucas Kuri [1992] PNGLR 448

Counsel:

Mr P Kopunye, for Plaintiff

Ms J Naipet, for Defendant

JUDGMENT

22nd July, 2010

1. MAKAIL, J: In this action, the plaintiff is suing the defendant for damages for personal injuries sustained in an alleged motor vehicle accident along Koskala road near Banz of the Western Highlands Province on 26th January 1996. In her statement of claim, the plaintiff alleged that she is from Warakar village in Banz and married with children. On the said date, around 3:00 pm, she was traveling as a passenger in a motor vehicle bearing registration no: HAC-284, owned and driven by one Bosip Munga Kapal. She alleged that the motor vehicle was not properly maintained, hence was mechanically defective but yet driven by Bosip Munga Kapal resulting in the accident. She also alleged that the driver was negligent because the motor vehicle was overloaded with passengers and when it travelled uphill, encountered difficulty in negotiating the climb causing it to reverse downhill. In fear of being killed, she jumped off. She sustained injuries resulting in the severance of her left hand index finger. As a result, she alleged that she suffered 100% loss of this finger.

2. She claimed general damages for pain and suffering, loss of amenities and economic loss. She claimed economic loss because she is unable to perform work as a mother and subsistence farmer. She also claimed special damages for the costs incurred in obtaining medical treatment. The defendant generally denied the claim by alleging that there was no such motor vehicle accident or does not know if the said motor vehicle was insured with it, or was uninsured and travelling on a public street. Alternatively, if there was an accident involving the said motor vehicle, the plaintiff contributed to her personal injuries when she jumped off the moving motor vehicle, hence liability should be apportioned.

3. As the defendant has denied the claim, the first issue for determination is liability. The Court must inquire whether the defendant as the insurer of the motor vehicle should be held liable for the negligent actions of the driver of the motor vehicle. The plaintiff must also satisfy the Court that if the motor vehicle was uninsured, it was travelling on a public street. This will require an examination of evidence of the parties. The plaintiff gave oral evidence in addition to her affidavit sworn and filed on 07th November 2005 which was tendered without objection and marked exhibit “P2”. She was also cross examined by the defendant’s counsel.

4. In addition to her evidence, a witness by the name of Paul Duka Kapil gave oral evidence and also tendered his affidavit sworn on 15th February 2000 and filed on 16th February 2000 which was marked exhibit “P3”. Dr Allan Kulunga also gave oral evidence in relation to the injuries of the plaintiff and his affidavit sworn on 25th January 2000 and filed on 28th January 2000 was also tendered and marked exhibit “P1”.

5. The plaintiff through her counsel also sought to tender a number of documents at trial. The defendant objected to these documents and the Court upheld the objections and rejected them. These documents were first, an affidavit of Lukas Kundibiat sworn on 10th August 2000 and filed on 11th August 2000. It was rejected because this witness was the police traffic officer who allegedly investigated the alleged accident but was not available for cross-examination. Secondly, an affidavit of Dr James Redcliffe sworn on 27th June 2007 and filed on 2nd July 2007 was rejected because this witness was the doctor who allegedly treated the plaintiff at Kudjip Hospital but was not available for cross-examination. Finally, a Police Traffic Accident Report marked annexure “A” to the affidavit of the plaintiff sworn and filed on 07th November 2005 was rejected because it was hearsay. As for the defendant, it did not file any affidavit or call oral evidence from its witnesses at trial.

6. Briefly, it is the evidence of the plaintiff that she sustained personal injuries in a motor vehicle accident along Koskala road near Banz of the Western Highlands Province on 26th January 1996. On the said date, around 3:00 pm, she was traveling as a passenger in a motor vehicle bearing registration no: HAC-284, owned and driven by one Bosip Munga Kapal. The motor vehicle was negotiating a slippery uphill drive when it started to reverse downhill. Some of the passengers jumped off to help push it uphill. She attempted to disembark from the motor vehicle and placed her left hand on the door of the passengers’ side when a passenger by the name of Sent Kapil at the same time swung the door closed. The door crashed her second index finger against the frame of the door of the motor vehicle.

7. She went to Kudjip hospital that same afternoon where she was treated. Her left hand index finger was subsequently severed. As a result, she alleged that she suffered 100% loss of this finger. She incurred K25.00 as cost for the Police Traffic Accident Report, K15.00 as cost for the Medical Report from Kudjip hospital, K90.00 as cost for consultation and reporting by Dr Kulunga, K50.00 for National Court filing fee and finally, K140.00 for legal costs. In addition, she incurred out of pocket expenses for transportation, accommodation and food while in Mt Hagen for medical treatment and pursuing her claim with her lawyers. The out of pocket expenses added up to about K1,000.00. She suffered pain and discomfort as a result of the injury and has been unable to fully perform work as a mother and subsistence farmer following the accident and injury.

8. Paul Duka Kapil’s evidence is that, the plaintiff came from his tribe but lived at Koskala village in Banz. He too was a passenger in the motor vehicle that crashed on 26th January 1996. The plaintiff was one of the passengers sitting at the back of the motor vehicle. As they travelled up a small hill, the motor vehicle could not negotiate the uphill climb. At that time, it had rained earlier and the road was wet and slippery. That made it difficult for the motor vehicle to climb.

9. The driver instructed the passengers to get off and assist by pushing the motor vehicle uphill and they did. He opened the door and got out of the motor vehicle. As he swung the door back to close, it struck the plaintiff on her hand as she was standing next to it with one of her hands on it. He heard the plaintiff screamed with pain and then realised that she was injured.

10. Dr Kulunga’s evidence is that, he is a registered medical practitioner and proprietor of Kintip Surgery Limited. He has a Bachelor of Medicine and Master of Medicine in Surgery and has been practicing for many years. He examined and gave an assessment of the disabilities of the plaintiff on 21st April 1997. He provided a medical report which stated inter-alia, that the plaintiff suffered 100% loss of the left index finger. Overall, she suffered 15% permanent disability of effective use of the index finger especially in grasping gardening tools and performing other usual labour orientated activities.

11. The law states that he who alleges bears the onus of proving the allegation. In this case, the plaintiff alleged that the defendant should be liable for damages for the injury she sustained in the accident because the motor vehicle was insured with the defendant or if it was uninsured, the defendant should still be liable because the motor vehicle travelled on a public street at the time of the alleged accident. Her counsel pointed to paragraphs 4 and 5 of the statement of claim...