Konton v Motor Vehicle Insurance Ltd [2000] PGDC 19; DC165 (3 May 2000)

DC165

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 63 OF 1999

BETWEEN

DICKSON KONTON
Complainant

V

MOTOR VEHICLE INSURANCE LIMITED
Defendant

Mt. Hagen: M M PUPAKA
2000: 2nd & 3rd May

Cases Cited & Discussed:
Lucy Kongupi v MVIT (Unrep.) N1043
Anis Wambia v PNG [1980] PNGLR 567
Tumu v MVIT [1988-89] PNGLR 638

Cases Followed
Kar Kirai v The State [1990] PNGLR 563

Counsel
Mr. Kopunye for the Complainant
Mr. Pokia for the Defendant

10th July 00

M. M. PUPAKA: Dickson Konton sued the defendant pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act Chapter No. 295, (the Act). The Facts of the case would be referred to and discussed further on. However I would state here at the outset that both parties took it for granted that the defendant would be otherwise liable as a matter of course. There were no arguments on the aspect of liability as a matter of statute, and the issue was not litigated properly. I would have thought the parties ought to have been argued out the issue properly. Neither council thought it of any consequence at all to raise the issue of whether the defendant could be liable, particularly when the pivotal point, of whether or not the driver of the motor vehicle was at fault, was in issue. This was not a case were the claimant had been a passenger in the motor vehicle or a case where the driver or owner were directly at fault because they - both or either of them individually - caused the accident by having caused or created a dangerous situation. The threshold matters of the issues of duty of care, tortious acts, fault and liability as a matter of the Act ought to have been fairly litigated.

The issue of liability is a matter of statute. The pertinent provision of the Act – section 54 (1) – is set out in full to start with. It reads:

"54. Claims for damages.

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

(a) a motor vehicle insured under this Act; or

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

(c) a motor vehicle on a public street where the identity of the motor vehicle cannot 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 Subsection (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." (Emphasis added).

The operative words in the provision are "... caused by, or arising out of the use of - a motor vehicle..." As the facts would reveal the complainant was injured whilst a motor vehicle was being used. For the purposes of the Act the defendant would be liable if any death or injury had resulted due to or as a result of the use of a motor vehicle. The death or injury would have been caused by the vehicle owner or its driver and it must have happened as a result of the use of a motor vehicle. The Trust’s liability, viewed in this way, seems to be depended not entirely on the owners’ or drivers’ fault alone. But also on the basis that the death or injury is as a direct result of the use of a motor vehicle.

This way of interpreting the provision, to my mind, does not conflict with the ruling of Woods J. in the case of Lucy Kongupi –v- MVIT (Unrep.) N1043. I think Justice Woods in that case considered negligence of the driver therein in the tortious sense. I am of the view that his honour, in the context of the facts disclosed including the high level of the claimant’s own contributory negligence, found no negligence on the part of the driver in causing the accident. It is helpful to reprint the full text of the relevant part of his honour’s judgement in the Kongupi case (supra) here.

"Secondly I am not satisfied that the claim in negligence has been made out. Third Party Insurance is not a no fault liability protection. The compulsory insurance ensures that the victim of negligent driving would not go empty handed because the driver or owner lacked the financial resources to meet the obligation. It helps the system of negligent driving work but it does not change the system itself. Therefore there must be some element of negligence or some way some one can assume some negligence.

However, all I have here is the plaintiff riding on the back of a vehicle, not registered or equipped to take passengers safely on the back. She then gets up and leans over to contact the driver but falls off. Whilst she says he was driving fast it would appear to be a subjective assessment and there is no objective evidence to infer excessive speed. The vehicle did not run off the road or any thing like that. Her getting up while the vehicle was travelling on a rough slippery road was a silly and negligent act in itself." (I have added the emphasis).

In this instant case the owner and his driver would be liable in equity. They owed the complainant a duty of care. The possibility that the complainant or indeed others like him may be injured in the manner alleged is a foreseeable event. They were in charge of a moving vehicle, which is a dangerous thing. Theirs was a deliberately conscious decision to engage in the acts of owing, and driving or using respectively, a potentially dangerous thing such as a motor vehicle. I must find in this instance that the owner and the driver owed a duty of care to persons like the complainant. They would have known that liability would follow their decision to own or operate the vehicle in the usual way. I think it is only fair and reasonable that I do so find. See Halsbury’s Laws Of England, Vol. 33, (Fourth Ed.), at paragraph 604 [page 423], for a discussion on this and for references to relevant cases. As a matter of the Act, the defendant would be liable for the owner and drivers’ liability in torts. The complainant on the other hand, would have been injured due to no fault of his own. That is the scheme of things in the Act and I would conclude that the complainant has properly sued the defendant.

The facts are disclosed in the following discussion. The defence called no evidence. Upon close of the complainant’s case both council agreed to file written submissions, which they have done.

On the 29th of March 1997 the complainant was walking through the bus stop area between the Mt. Hagen Main Market and the Main Road. The latter is that part of the highway (Whagi Parade) running along the western side of the main market in Mt. Hagen.

According to the complainant the offending motor vehicle came from behind him. He said the vehicle was going to speed past him. Having become aware of the vehicle coming up from behind him he turned to see it whilst at the same time instinctively stepping aside to let it pass by. The complainant recalled that it was when it went past him that the vehicle’s tyres caused a stone on its pathway to be either hit or tossed or flicked at him. The complainant said the stone hit him on his right arm, fracturing his ulna bone.

The complainant recalled going to the Mt. Hagen Hospital where he was given medicines for the pain and swelling. He also recalled reporting the accident and injuries to the police on the day of the accident. It was not known just what the extent of his injuries were then when he reported to the police. He remembers being in intense pain in his injured hand over-night. He recalled going back to the hospital the next day where his hand was x-rayed. The x-ray then revealed the broken bone referred to above. This talk of going to the hospital for the x-ray on the next day is markedly different from his assertion in his Statement of Claim, of having had a x-ray taken on the 4th of April 1997 – some days later. The complainant was not cross-examined on the discrepancy. In any case I do not think this discrepancy is, all things considered, fatal to the complainant’s claim.

As to the particulars of the vehicle; its identity, its registration and insurance status, and its owner and driver, the following evidence was adduced.

The police investigating officer – Constable Noki- was called to testify. He said he received a report of the alleged motor vehicle accident and based on his subsequent interviews with the driver of the vehicle and the victim he compiled a road accident report. That accident report is in evidence. It was tendered as an annexure in the constable’s affidavit, which was tendered without objection. [Exhibit C]. The accident report discloses the identity of the motor vehicle as a Mitsubishi Truck Reg. No. P. 686S or P. 6865, owned by one Bora Pumundi, of P. O. Box 646 Mt. Hagen WHP, and driven at the time by one Joseph Korowa of Mt. Hagen. It also discloses the Third Party Insurance Policy number to be 01104023. Its expiry date was noted as at 31st July 1997. Its Registration was to expire on the 3rd of June 1997. The constable had interviewed both the victim and the driver. He said he had concluded after such interviews that neither the driver nor the victim was really at fault. He said he decided not to charge the driver as he thought the vehicle itself and not the driver was at fault.

The registration number of the vehicle was pleaded in the statement of claim as either P. 686S or P. 6865. In the accident report where it is disclosed, the last character is not clear. It could either pass for a numeral 5 or a letter S. Both council for the complainant and the defendant failed completely to cross-examine any of the witnesses, particularly the policeman, on this uncertainty. After having pleaded in the alternative in the Statement of Claim, council for the complainant should have made attempts to have the registration number clarified. His failure is inexcusable. Nonetheless I must decide if the pertinent vehicle is sufficiently identified for the purposes of the Act. It is a requirement of Section 54 of the Act that the injury or death must have resulted in the course of the use of a motor vehicle. In line with that requirement of the Act I think it is enough that the offending vehicle is sufficiently identified. Its owner and its driver are known. Whether a vehicle of the colour, type, make and model, is owned by Bora Pumundi of P. O. Box 646, Mt. Hagen, would be otherwise easy to ascertain. Whilst the complainant and his lawyer failed to ascertain that vehicle’s registration number that does not, to my mind, mean that they have fallen short of the level of proof the Act requires in this respect. I find, as I said, that the vehicle is sufficiently identified in the circumstances.

The complainant said he was injured in the manner described. He said with the help of a bystander named Wimp Kenga he identified the driver to be Joseph Korowa. He said they found out that Joseph Korowa was driving for Bora Pumunda, a businessman. The complainant’s evidence essentially matches that of the police-investigating officer on these aspects. The complainant’s other evidence is in his affidavit, which is also in evidence. [Exhibit A].

The other witness to testify for the complainant was the person Wimp Kenga. He confirmed the complainant’s account of how the latter suffered injuries. He too had deposed to an affidavit prior to trial, which is in evidence. [Exhibit D]. In his affidavit Wimp Kenga said he had shouted down the driver and managed to have him stop the vehicle as soon as the stone tossed by the vehicle hit the complainant. He recalled then confronting the driver and accusing him of driving at high speed through a market place. He recalled that the driver had said sorry and that he (the driver) had not meant to do anything deliberately. Wimp Kenga further recalled in his affidavit that he had assisted the victim to get the "vehicle’s papers" from the owner of the vehicle which he handed over to the police. However in his oral evidence this witness positively said he neither handed the vehicle papers to the police nor see the victim giving those to the police. Defence council did not challenge the current registration and insurance status as disclosed by the accident report. Council did not cross-examine the police investigator as to the propriety or otherwise of the source or sources of the constable’s information. I would accept then that the evidence on these aspects were properly collated and put in the report and that I should find no fault with its credibility, to the extent that the complainant’s case maybe otherwise adversely affected in this respect.

For whatever it would be worth it must be noted that the police investigator recalled getting the "vehicle’s papers" from the driver of the vehicle. That highlights the inconsistencies in the evidence of the complainant and his witness Wimp Kenga in respect of this, as noted by the defence in its submission. However I would not accept that the complainant’s case would fail on the basis of this inconsistency alone. Whether the police constable received the details of the vehicle from the driver or the complainant really does not alter the fact, which fact is that the police constable received copies of the vehicle’s insurance and registration certificates. There really is no cause to think he did not get those from the driver of the vehicle as he said. On the basis of those papers the constable was satisfied as to the vehicle’s identity and its registration and insurance status. I must reiterate what I have said before in other cases such as this. No one has argued that it is not proper to keep copies of the vehicle’s registration and insurance certificates in the vehicle or that someone like the owner or driver of the vehicle may not keep copies, or produce such copies to others who may need to see them. It is not argued that proof of current insurance and registration details may be obtained only from the Motor Traffic Registry offices.

Through its submission the defence contends that the complainant’s claim fails for other reasons too.

It is submitted that negligence against anyone has not been made out. I think I have covered that aspect [negligence] adequately in the fore part of this judgement. Unless the Trust may not be liable for other reasons, in this instance it is liable pursuant to Section 54 of the Act as I said. Added to that, it should be obvious to the reasonable person that a stone or other object tossed or flicked at someone by a vehicle in motion in a public place, would most likely be as a result of a level of negligence by someone. If the driver had not driven at relative speed as alleged, the possibility that he could have otherwise driven without due care and attention is probable. Stones on the road are incapable of flying out at anyone of their own volition. However I have found liability against the defendant for the most part, on the basis of statute. As I said the complainant was not at fault in any way. It is parting company with one’s senses to argue that the complainant should not have passed through that bus stop area, a public place, on his way home from the market.

It is also submitted that the complainant has come short of proving that he was injured in the manner alleged. There is a Medical Report of Dr. Kulunga. Dr. Kulunga also testified orally. This doctor’s evidence would be discussed in the context of its significance in other respects later, however for the purposes of proving whether or not the complainant was injured in the accident, his evidence is of very little value. There are no initial treatment or admission reports from the Mt. Hagen Hospital so whatever assistance those such reports would provide is not available. What is available is the evidence of the complainant, that of his witness [Wimp Kenga], and the evidence of Constable Noki. The Accident Report of Constable Noki too is available.

Considering the total inconsistencies I alluded to earlier in the evidence of these witnesses, and in the light of the other established facts, would I conclude that the complainant could not possibly have suffered an arm injury? I do not think so. To reach the conclusion the defence prefers I would have to accept that the complainant, Wimp Kenga, and Senior Constable Noki have, either in collusion with each other or independently, lied in Court. There is no cause for the Court to accept that these people have lied. Therefore I should accept that the complainant suffered injuries in the manner alleged.

DAMAGES

The complainant suffered injury in his right arm. The extent of his injury as initially observed, in medical terms, at the Mt. Hagen Hospital is not available as I pointed out earlier. However he subsequently consulted Dr. Kulunga who noted that the complainant had suffered minor abrasion to the body – I take it that the doctor is referring to the body of the right arm – and a fracture of the distal head ulna of the right arm. The facture has healed and the complainant has recovered well with no lasting or other disability. Dr. Kulunga’s obviously final medical examination and assessment reveal no impairment or limitation in the use of that arm, and the complainant has also not claimed economic loss.

Most of the case precedents cited in aid of the complainant’s claim have only distant relation to this case. The case of Tumu –vs- MVIT [1988-89] PNGLR 638 is comparable to the extent that the plaintiff therein had suffered a fractured wrist. Otherwise the plaintiff therein also had some permanent disability to his wrist with pain and limitation in movement. Having considered the circumstances therein Woods J awarded a sum of K8000.00 in general damages for pain, suffering, and loss of amenities. The case of Anis Wambia –vs- PNG [1980] PNGLR 567 is a shade similar to this case. In that case an award of K5000.00 was made. Evidence therein disclosed a fracture of the upper leg that required the insertion of a pin. The fracture had healed well but there was clear evidence that the plaintiff had been greatly handicapped over a period of 12 months. In my view there is a level of seriousness alluded to in the Anis Wambia (supra) case that this instant case lacks.

A case more akin to this case in terms of the seriousness of injury suffered seems to me to be the case of Kar Kirai –vs- The State [1990] PNGLR 563. There the plaintiff was a male aged about 21 years was injured when knocked down by a motor vehicle. He suffered an uncomplicated facture of the right leg. It was immobilised for three months and it healed well with a possibility of arthritis in later life. General damages in the sum of K4000.00 was assessed and awarded. The case before me now is about the same as that case, except that in the latter the injury was in the leg, and the possibility of arthritis in later life was taken into account. I am of the view that the difference in the fractured leg bone in that case and the fractured arm bone herein is relatively insignificant. The Kar Kirai (supra) case was decided almost ten years ago which is a long time and I am aware that K4000.00 in 1990 in real value now would be more.

In all the circumstances I assess K5500.00 in general damages for pain suffering and loss of amenities and I award that sum. I also award K235.00 as claimed, in special damages. Cost would follow the event, to be taxed if not agreed.

KopunyLawyers: Complainant
Young & Williams Lawyers: Defendant.