Sopas v MVIT [1998] PGDC 25; DC433 (29 September 1998)

DC433

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 10 OF 1996

Senis Sopas
Complainant

V

Mvi (PNG) Trust
Defendant

Mt. Hagen: Pupaka, P.M.
1998: 15/09/98, 28/09/98 & 29/09/98

Cases Cited
1. GARO KEI -V- MVIT [1992] PNGLR 195
2. LUCY KONGUPI -V- MVIT (UNREP.) N1043
3. BEPIWAN AMBON -V- MVIT (UNREP.) N1116
4. JACK LUNDU YALAO –V- MVIT (UNREP.) N1386
5. MVIT –V- NANDE WAGE (UNREP) SC 478 OF 1995

Counsel
D. Gonol For The Complainant
M. Pokia For The Defendant

M.M. PUPAKA, PM: The complainant seeks damages in these proceedings for injuries she says she received in a Motor Vehicle accident at Telga Village, Nebilyer, Western Highlands Province, on the Okuk Highway, on the 24th of December 1993.

The complainant testified on her own behalf. She also called three (3) other witnesses. Exhibits "A" to "E" were tendered by consent. Of the exhibits, Exhibit "A" was introduced by the defence and was tendered through the complainant. Exhibit "E" is the set of affidavits by Dr. Kulunga. Exhibit "E" was tendered by consent after initial objections by the defence. These are a set of three (3) piece of documents identified as ‘initial medical notes’ from the Hagen General Hospital were also tendered by consent. For the purposes of these proceedings the ‘initial medical notes’ would be referred to as exhibit "E".

Apart from Exhibit "A", the defendant called no other evidence.

THE FACTS

The facts are these. On the day of the accident the complainant was waiting at the Telga village bus stop. She was with a large group of people waiting to go to Pabarabuk Mission Station for ‘The Christmas Church Service’ It was early in the morning. The complainant was sitting down at or around the bus stop area. Other people near her were standing. There was a water drain, for drainage, running along the highway. It is not quite clear just how far away she was sitting, but it is generally clear the complainant was about five (5) metres away from the road proper. I say that because while the approximate distance was given, it was not said if the five (5) meters began from the edge of the drain. The drain was said to be fairly deep, but in any case it was a drain across which small cars would not get over.

Then the subject vehicle came down. It is said the vehicle travelled at high speed. At around the bus stop area it veered of the road and ran off towards the crowd of people. It is generally said the vehicle hit the drain but went over it and hit the sitting complainant who had no time to avoid it. The vehicle’s speed, it is said, would have been considerably reduced by its impact on the drain. However it is said the vehicle nonetheless still had enough momentum to hit and knock the complainant over and under the vehicle and so she was pulled some distance before being dislodged.

It is said the complainant, Senis Sopas suffered an injured leg, (right leg). Her right leg bones were fractured.

The police attended at the scene relatively quickly. The police basically attended to cool and control what then had become an angry and rowdy crowd, which was blocking the highway. The complainant was rushed to the hospital by two of her relatives, who actually testified in these proceedings.

EVIDENCE

[A] THE LAW

The Complainant brings her claim against the defendants Trust pursuant to the Motor Vehicles (Third Party Insurance) Act Chapter No. 295.

More particularly Section 54(1) of the said Act. Section 54(1) of the Act provides.

"(1) Subject to subsection 2, any claim for damages in respect of the death of or bodily injury to any person caused by or arising out of:

(a) the use of a motor vehicle insured under this Act; or

(b) an uninsured motor vehicle on a public street; or

(c) a motor vehicle on a public street where the identity of the motor vehicle can not after due inquiry and search be established,

shall be made against the Trust and not against the owner or driver of the motor vehicle and subject to Sub-section 5, any proceedings to enforce any such claim for damages shall be taken against the Trust and not against the owner or driver of the motor vehicle".

The subject motor vehicle was alleged to be a Toyota Land Cruiser, white in colour, owned by a Bible Missionary Institute, and driven by one Loke Rake.

As per the requirements of Section 54 (1) of the Act, the description of the vehicle, the reference to the alleged owner, and the driver, is all the evidence that was produced. There does not exist any documentary proof pertaining to the Registration of the subject vehicle, and its Insurance status, and so all those matters that these such documentary records would otherwise clarify are left as yet uncertain.

The complainant’s claim against the defendant Trust is by operation of the law. It should go without saying that the requirement of the law be satisfied. All such claimants against the defendant Trust must prove to the required standard that the subject vehicle was insured, or insured but in a public street, or on a public street where the identity of the motor vehicle can not after due inquiry and search be established. The need to establish the motor vehicle’s identity, and the proof of the underlying facts is, as it seems, the trust of the enabling provision of Section 54 (1) of the Act.

In the case of GARO KEI –V- MVIT [1992] PNGLR 195 at page 198, Brown J. said thus:

"The underlying facts which must be proved are that the motor vehicle involved in the accident was a motor vehicle insured Under the Act, or was an uninsured motor vehicle in a public street, or that the motor vehicle can not after due search and enquiry be identified."

Then again in the case of LUCY KONGUPI –V- MVIT N1043 Woods J, also said at page 2 of his Judgment:

"It is necessary to properly establish the vehicle out of which a claim is made. It is necessary to establish whether it is a motor vehicle registered under the Act or an uninsured vehicle or unidentified vehicle. In this case there is no firm evidence identifying the vehicle and owner and whether it was properly registered and insured".

We at least know that the motor vehicle alleged to be involved was a White Toyota Land cruiser. One Loke Rake, a Pastor, drove it. The vehicle was registered as or had the number place HAA. 428.

What is not clear and is left uncertain is the registration and Insurance status of the vehicle. The complainant in paragraph 5 of her statement of claim, among other things, asserted that the subject motor vehicle was insured with the defendant under Insurance Policy No. 00842676. The defendant in the formal defence it filed in these proceedings denied the assertion. Under the circumstances it was always imperative for the complainant to prove the requirements of Section 54(1) of the Act, but she has not done so. Mere reference to the number plate, the type of vehicle, and the alleged owner and driver, would not suffice. The level of proof required of these aspects by law has been crystallized in the appropriate case laws in this jurisdiction.

For instance:

1. In the case of GARO KEI (supra) Brown J. had this to say:

"No certificate has been given in evidence under the hand of the Trust confirming the issue of a current certificate of insurance for the motor vehicle allegedly involved in the accident at the time. There is no evidence of the registered owner of the motor vehicle ACB. 334 nor of any registration details in relation to that vehicle obtainable from the Department of Motor Transport. Such matters clearly go to documents, for the fact of registration is a matter of Department of Transport and maybe proved by a certificate obtained from that Department. That certificate is evidence of ownership for the purposes of the Act and, similarly a certificate under hand of the Trust is prove of insurance. In this case all those proofs are lacking".

2. Elsewhere, in the case of Bepiwan Ambon –V- MVIT (Unreported N116 Brown J. had to decide whether he would be satisfied as to the requirement of section 54 (1) upon the presentation of what his Honor referred to as Secondary Evidence, that is evidence tending to show proof of the section 54 (1) requirements. In that case a policeman gave oral evidence regarding searches he had conducted at appropriate places and of details of the status of a motor vehicle he had ascertained. His Honor said at page 6:

"That does not preclude in my opinion other evidence on the point, when no certificate or extract under SS (2) of S. 42 of the Motor Traffic Act has been tendered. The constable has given oral evidence of search without producing the record for the court. While not the best evidence, I am prepared to allow the constable’s statements in as proof of the facts. I say this having regard to the circumstances appertaining to the production of records of this nature at Wabag and the general practice in the past which seems to have equated the assertion with the fact. While that latter is no reason, it goes some ways to explain why no better or primary evidence is available here. With that I do not agree with my brother Woods J., where he says in MARTIN KILLTE –v- MVIT (unreported N1085 of June 1992) that tender of the Motor Traffic Accident Report is proof of registration and insurance if shown, without anything further. Such an assertion seems to me to be contrary to the requirements of S.42 [of the Motor Traffic Act] but in his case I am prepared to allow secondary evidence of the details of the records kept, under SS(2) [of S.42 of the Motor Traffic Act] of particulars of registration. I accept the policemen’s evidence of search as sufficient for the presumptions the plaintiff wants me to make. Here the policemen gave viva voce evidence to show where he derived his information. It is his evidence, not just the tender of the traffic accident report, on which I place credence".

In this instant case there is not even a Traffic Report. Descriptions of a vehicle would not equate with the identity of it. Mere references and assertions of owners and indeed alleged policy numbers cannot equate with the fact(s).

Needless to say that the complainant here in has not sufficiently established the requirements of Section 54 (1) of the Act. I would dismiss these proceedings for that reason.

Having due regard to the conclusions I have reached in relation to the requirements of Section 54(1) of the Act, I would consider it not of any consequence to discuss negligence as I normally would. However, I wish to discuss two other aspects as I consider those to be relevant.

First of all I wish to state at the outset that I have had the chance to peruse the decision of Injia J. in the case of JACK LUNDU YALAO –V- MVIT (Unreported) N1386. I would venture to say that in my view the ruling in the JACK LUNDU YALAO case (supra) is quite consistent with the main thrust of all other binding precedents that deal with claims under Section 54(1) of the Act. For that matter the case of MVIT –V- NANDE WAGE & 2 OTHERS (Unrep.) Sc. 478 (1995) is also a consistently binding precedent.

Incidentally Injia J. had reason to distinguish the JACK LANDU YALAO case from the latter Supreme Court case (MVIT –V- NANDE WAGE).

In these two cases (above) the National and Supreme Courts sat to consider different issues. Both cases had raised issues of matters of pleadings. Questions of whether the MVIT had properly traversed to pleadings of facts that were within the knowledge (or ought to be within the knowledge) of MVIT were the points of contention in the above cases.

It ought to be stressed that the complainant herein has not sought to have the defendant’s defence struck out or assert any such relief what so ever. However, I am of the view that if the parties, especially the complainant, were diligent in the conduct of her case she could very well have used the rules of practice and procedure to her own advantage. For instance she could have caused to be issued Notices To Admit Facts, or subpoena appropriate people in the defendant organization. I say this because she alleged an insurance policy number to be the relevant policy number in respect of the motor vehicle, which allegedly caused her injuries. She was also, (in fact her lawyers were), aware of the defendant’s defence relative to that pleading. The specific defence to the pleading of the policy number was a denial.

Injia J. talks about the two methods of traverse, which would be adopted. A denial of a fact or non-admission. His Honour restated with clarity the requirements of Order 8 Rule 21(2) of the National Court Rules, (NCR), in the case of JACK LUNDU YALO (supra).

In this instance the defence was a denial. That was only proper as it would have been inappropriate for the Trust to plead non-admission. The plaintiff herein pleaded and provided the general description for the subject vehicle and its alleged owner and the alleged insurance policy number, so the defendant could only admit, or deny as it did.

I am at a loss to understand why the complainant or her lawyers thought pleading a policy number was adequate for the requirements of Section 54 (1) of the Act. I can only presume pleading a policy number was considered to be adequate because neither appropriate extrinsic evidence as proof of insurance or registration, nor relevant submission on the law has been proffered. I would repeat that the assertion does not equate with the fact. The proof of the assertion are very much lacking.

It is submitted that the requirements of Section 54(1) are established in that since the complainant cannot provide proof of current insurance (and registration) as per the requirement of Section 54 (1)(a), then it must be that the vehicle was a unregistered (or uninsured) motor vehicle such as to satisfy the requirement of Section 54(1)(b).

In response to that I can only ask: Are the parties to litigation not bound by what they have pleaded – be it in a statement of claim or an instrument of defence? I have always considered this principle to be one of the corner stones of civil litigation. One of the cardinal rules of pleadings is that the issues between the parties are precise and to the point, as its circumstances (of a case) would allow. It is imperative that the pertinent issues are settled before trial.

In this particular case the complainant pleaded a cause of action based on Section 54(1)(a). She did not found her claim under Section 54(1)(b) or Section 54(1)(c). The defence raised and pleaded was equally specific and relative to the cause of action pleaded. Again I reiterate that the Trust’s liability is based on law – on Section 54(1) of the Act, namely Section 54(1)(a), Section 54(1)(b), or Section 54(1)(c). Those (3) three alternative grounds are different grounds or causes or bases of action. One may not, as is not possible, plead and found one’s claim on all three (3) or in the alternative.

I consider the three (3) grounds or scenarios in Section 54(1) to be separate bases or causes of action against the defendant Trust. Being of this view I consider that the submission of council for the complainant to be contrary to Section 137 of the District Courts Act, Chapt. No.40.

That provision reads:

"137. Evidence of matters not in summons.

Evidence of a demand or cause of action shall not be given on behalf of the complainant on the hearing of a complaint other than a demand or cause of action stated in the summons issued on the complaint, or in the summons as amended".

At no time did the complainant seek any amendments in the proceedings. Not only for any amendment relative to the grounds in Section 54(1) of the Act, but also to the other obvious errors in the pleadings in respect of the complainants claim. For instance the complainant had pleaded that she was a passenger on the vehicle and at the same time she asserted and pleaded that she was a pedestrian walking along the roadside. In the trial she and her witnesses gave evidence that the complainant was sitting down when she was run over by the motor vehicle. There were other relatively minor inconsistencies which viewed separately may not amount to much but would nonetheless impact on credibility generally. The point I make is that there was a sore need for amendment but the complainant did nothing. It will suffice for me to have discussed the lack of action in not seeking amendments relative to the cause of action in law. I have decided the case for the most part on the law. I need not discuss the other seemingly inconsistent pleadings.

The other aspect I wish to discuss is in relation to the matter of the defendant Trust’s only evidence that the complainant had received, and was paid compensation by the driver of the vehicle, one Pastor Loke Rake.

Before I endeavour to discuss this aspect any further, I would state the obvious. For reasons that would be stated further on at the appropriate juncture, it is clear that the driver of the motor vehicle, Pastor Loke Rake, has paid compensation to the complainant. The defendant has asserted this and I find that to be so. The question that begs to be asked is: isn’t that proof of there being an accident wherein this complainant was injured, and that the alleged owner and driver of the motor vehicle are otherwise known, and possibly the identity of the Motor Vehicle as well?

I would for the purposes of this part of the discussion, acknowledge that the driver of the subject vehicle is known. I would also accept that the payment of compensation would, to a certain extent, establish some form of acknowledgment of negligence by the driver in the manner of his driving. However, considering the evidence adduced by the defence, (and of course the complainant also), I am still not, and would not be satisfied, that the identify of the vehicle, especially relative to the owner of it, and it’s insurance and registration status, are proved. Consequently, I still hold, even in the light of the defence evidence tending to show that there was otherwise an accident wherein the complainant was injured, that the requirements of Section 54(1) of the Motor Vehicles (Third Party Insurance) Act Chapter No. 295 are not adequately established.

That being said the defence evidence was this. It is a prior statement by the complainant. It is a three (3) paged document, (Exhibit "A"). It was tendered through the complainant during cross-examination. Exhibit "A" is a series of questions and answers where in the complainant answers questions put to her by an agent of the defendant Trust. Exhibit "A" was tendered into evidence by consent. I thought it strange that the complainant’s council would consent to the tender of this document admittedly without at least asking for a ruling on it by the Court. There are various matters – in the form of the answers to questions – that are otherwise of some help to the compensation but the complainant and her witnesses would easily prove those same in any case. Council must know that Exhibit "A" may have been secured by the defendant when these proceedings were pending – Exhibit "A" is undated. It may well be also the case that the complainant was misled into making the statement – without the presence of her own lawyer – with the use of improper or undue influence. All things considered council for the complainant should have stood up against the use of this sort of approach to securing admission, other than through the use of appropriate rules of practice and procedure. He did not. He consented to its tender after given ample time and opportunity by the court to object by way of an adjournment. Exhibit "A" therefore is properly in evidence as a consequence.

Among other things the complainant stated in Exhibit "A" that a compensation package of K2000.00 (cash) and 12 pigs and a cassowary was paid by the driver of the vehicle.

Then in the rest of her oral evidence in Court the complainant (as did all her witnesses) proceeded to deny that any sort of compensation was paid at all. Whatever good her lawyer thought would be the out come of his consent to tendering Exhibit "A" must remain an abject mystery because after having identified and admitted the answers in Exhibit "A" to be hers, the complainant in her oral testimony in court completely denied that any compensation was paid. She also denied having any knowledge of such a payment like that.

Whatever else is the natural consequence of all this is a tale of what may have been. All that is necessary to state here is that if it were still necessary for the Court to assess damages, there would be deductions allowed for monies and kind already received by the complainant for her injuries. How significant an effect the K2000.00, 12 pigs and one cassowary would have had on the ultimate award is not necessary to say. Suffice to say, considering the injuries proved, the lack of pleadings on economic loss, and permanent disability of 2.5% in the effective use of her right leg, and other pertinent evidence, the costs of litigation could well have been otherwise avoided.

In the end result, I dismiss the claim with costs

Dowa Lawyer: Complainant
Young & Williams Lawyers: Defendant