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

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 15 November 2008
• Court: National Court
• Citation: (2008) N3700
• Docket Number: W.S. NOS. 546 & 547 OF 2004
• Year: 2008
• Judgement Number: N3700

Full Title: W.S. NOS. 546 & 547 OF 2004; Yuye Kulau & Tupo Kankuwa v Motor Vehicles Insurance Limited (2008) N3700

National Court: David, J

Judgment Delivered: 15 November 2008

N3700

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

W.S. NOS. 546 & 547 OF 2004

BETWEEN:

YUYE KULAU & TUPO KANKUWA

Plaintiffs

AND:

MOTOR VEHICLES INSURANCE LIMITED

Defendant

Mt Hagen: David, J

2008: 18-20 August & 15 November

NEGLIGENCE – claims for damages – claims arising from one accident – alleged accident caused by negligence of driver - proceedings under Motor Vehicles (Third Party Insurance) Act, Chapter 295 - liability denied – must establish category of claim under s.54 (1) – onus not discharged – claims fraudulent – claims dismissed.

Cases:

Garo Kei v. MVIT [1992] PNGLR 195

Imambu Alo v. MVIT [1992] PNGLR 487

Lucy Kongupi v. MVIT (1992) N1043

Martin Kilte v. MVIT (1992) N1085

Bepiwan Ambon v. MVIT (1992) N1116

Waro Moses v. MVIT [1993] PNGLR 63

Emas Estate Development Pty Ltd v. John Mea & Ors [1993] PNGLR 215

Kamtai Waine v. MVIT [1993] PNGLR 446

Moki Gelua v. MVIT (1993) N1043

Sidi Adevu v. MVIT [1994] PNGLR 57

MVIT v. Nande Waige & Ors [1995] PNGLR 202

Jack Lundu Yalao v. MVIT (1995) N1386

Pare Umbe v. MVIT (1997) N1574

Joe Danga v. MVIT (1997) N1665

John Basil Ziporo v. MVIL (2008), WS No.1470 of 2003, Unreported Judgment of David, J delivered on 20 February 2008

Counsel:

P. C. Kopunye, for the Plaintiffs

J. Naipet, for the Defendant

JUDGMENT

15 November, 2008

1. DAVID, J: INTRODUCTION: On 18 May 2004, the Plaintiffs filed separate proceedings against the Defendant pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act (the Third Party Insurance Act) claiming damages for injuries each of them claim to have sustained from a motor vehicle accident.

2. The Defendant denies liability. It contends that the Plaintiffs have not discharged the onus placed on them to prove their claims under one of the categories specified in s.54 (1) of the Third Party Insurance Act. The Defendant also states in the alternative that there was no motor vehicle accident at all.

3. This case is therefore about liability and quantum.

BACKGROUND

The alleged accident

4. The alleged incident that resulted in the Plaintiffs sustaining the injuries is said to have occurred near Kundiawa along the Okuk Highway in the Simbu Province in the early hours of 6 October 1998 at about 04.00 am. The Plaintiffs claim that they were passengers on a motor vehicle owned by one Wase Dokolo (the owner) bearing registration number LAE529, a Ford utility (the motor vehicle) and driven by one Logiok Nawas (the driver) when it was driven off the bitumen road and collided against the side of the road resulting in them being thrown out.

Statement of Claim

5. The pleadings in both proceedings are basically similar and they differ only in relation to the nature and extent of injuries sustained to their right eyes and the amount of damages claimed.

6. The Plaintiffs who are male adults are village subsistence farmers, married with dependents and are originally from Waramanz, Upper Jimi in the Western Highlands Province.

7. As alluded to earlier, the Plaintiffs claim that they were passengers on the motor vehicle when the alleged accident occurred.

8. The motor vehicle was insured with the Defendant under a third party policy number 1524942 which was to expire on or around 23 September 1999.

9. The Plaintiffs assert that the alleged accident occurred because the driver drove the motor vehicle negligently when he; failed to keep any or any proper look out; drove at a speed which was excessive in the circumstances; failed to apply the brakes in time to avoid the accident; failed to stop, slow down or alter the course of the motor vehicle at the time to avoid the accident; failed to take enough sleep or rest whilst driving in the early hours of the morning thereby causing loss of concentration and fatigue and allowing the accident to occur; failed to maintain the motor vehicle to be driven only on the bitumen surface of the road, but allowed it to be driven on to the side and onto the gravel area resulting in him losing control of it; and failed to drive the motor vehicle with due care and attention.

10. Yuye Kulau claims that he sustained facial lacerations and abrasions, general abrasions to his body and 100 % permanent loss of vision due to the loss of his right eye.

11. Tupo Kankuwa claims that he sustained facial lacerations and abrasions, general abrasions to his body and 60 % loss of vision to his right eye.

12. Each Plaintiff claims damages for; pain, suffering and loss of amenities of life for the extent of loss of vision to the right eye and in the case of Yuye Kulau for loss of an eye as well and for minor injuries received; proven and undocumented special and out of pocket expenses; 8% interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act and costs.

Defence

13. On 2 July 2004, the Defendant filed its defences in response to both statements of claim which are in similar terms. It denied liability, but pleaded in the alternative, inter alia, contributory negligence on the part of each Plaintiff and in the further alternative that each Plaintiff was not involved in any motor vehicle accident at all. For convenience, I set out below the terms of the Defendant’s defence:-

“1. The Defendant admits paragraph 2 of the Statement of Claim.

2. The Defendant does not know and cannot admit paragraphs 1, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 and the further paragraph claimed as 14 of the Statement of Claim.

3. The Defendant denies paragraph 9 and particulars of negligence contained therein.

4. Further or in the alternative, if the Plaintiff was injured as alleged (which is denied), then, the Defendant says that such injuries were caused by or as a result of the alleged negligence of the driver and that such injuries were caused by or as a result of his own negligence.

Particulars of Negligence

(a) Failing to take any or any adequate care for his own safety.

(b) Consenting to being driven in a vehicle which was in the care an control of a drunk driver and by reason of which the alleged driving, management or proper judgment of the manner of driving was impaired and this fact was known to the Plaintiff before and during the course of the journey.

(c) The Plaintiff jumped off a moving vehicle without due care and or regard for his own safety.

(d) The Plaintiff was moving around in the moving vehicle and thereby easily placing himself in the position of risk.

5. Further or in the alternative, the Defendant denies that the Plaintiff was involved in a motor vehicle accident or at all.”

THE ISSUES

14. The pertinent issues for determination are:-

1. Whether the Plaintiffs have established their claims under one of the categories prescribed under s.54 (1) of the Third Party Insurance Act?

2. Whether the Plaintiffs were involved in the alleged accident?

3. If the first issue is decided in favour of the Plaintiffs, was the driver negligent?

4. If the Defendant is liable, did the Plaintiffs contribute to their injuries by their own negligence?

5. If the Defendant is liable, what are the Plaintiffs’ damages?

THE RELEVANT LAW

15. A person who wants to make a claim for damages for death or bodily injury arising from a motor vehicle accident must make the claim under s. 54 of the Third Party Insurance Act. It is not disputed that the claim must be brought against the Defendant, Motor Vehicles Insurance Ltd and not against the owner or the driver of the motor vehicle: see ss. 1 (definition of “successor company”) and 54 (1) of the Third Party Insurance Act.

16. Before filing an action against the Defendant, a claimant must give notice of an intention to make a claim to the Defendant within a period of six months after the occurrence out of which the claim arose or within such further extended period under the dictates of s. 54 (6) of the Third Party Insurance Act. That is not in issue in this case.

17. Section 54 (1) of the Third Party Insurance Act specifically provides for liability of the Defendant in three (3) categories where death or bodily injuries have resulted from the use of:-

1. a motor vehicle insured under the Act; or

2. an uninsured motor vehicle in a public street; or

3. a motor vehicle on a public street where its identity cannot, after due enquiry and search, be established.

18. The Plaintiff must therefore firstly establish under which of the above categories this claim comes under or in other words the motor vehicle involved in the accident must be properly identified: see Martin Kilte v. MVIT (1992) N1085; Garo Kei v. MVIT [1992] PNGLR 195; Lucy Kongupi v. MVIT (1992) N1043; Waro Moses v. MVIT [1993] PNGLR 63 and Moki Gelua v. MVIT (1993) N1043.

19. The fact of registration and insurance requires strict proof: Bepiwan Ambon v. MVIT (1992) N1116; Garo Kei; Imambu Alo v. MVIT [1992] PNGLR 487; Pare Umbe v. MVIT (1997) N1574 and Joe Danga v. MVIT (1997) N1665.

20. It is generally the plaintiff who has the onus of proving on the balance of probabilities; under what category his or her claim falls; negligence and damages. Once a claim under one of the 3 categories is made out, negligence must then be proven against the driver of the motor vehicle. Where...