Kameda v Motor Vehicles Insurance (PNG) Trust [2000] PGDC 27; DC220 (14 February 2000)

DC220

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 14 OF 1996

BETWEEN

KOMGOLGA KAMEDA
Plaintiff

V

MOTOR VEHICLES
INSURANCE (PNG) TRUST
Defendant

MT HAGEN: APPA - PM
1997: 21st MAY, 2nd JULY
2000: 14th February

JUDGMENT

Motor Vehicle accident t- Negligence - Action for damages for injury – left ring finger cut off – contributory negligence – identity of vehicles.

Cases Cited:
Karo Kei V. Mvit [1992] PNGLR 195
Waro Moses V. Mvit N1159
Imambu V. Mvit [1992] PNGLR 487
Martin Kilte V. Mvit N1085
Lucy Kongupi V. Mvit N1043
Kulno Kanjie V. Mvit
Walpe V. Mvit [1993] PNGLR 434

Counsel
M.P. Tamutai For The Plaintiff
A. Kandakasi For The Defendant

4th February 2000.

Appa, PM:.This Is A Claim For Damages/injuries arising from a car accident occurred on the 17th January 1990 at Kelua section of the Baiyer road, some 20 kilometres from Mt. Hagen town.

According to the complainant’s case, on the 17th January 1990, the complainant was driving a 25 seater PMV Isuzu bus Reg. No. P7280 owned by one Lucy Haffen and was on a PMV run from Mt. Hagen town along Baiyer. The complainant stopped on his left side at Kelua junction road to drop off some of his passengers. As he was opening his side of the door to get out and while still pushing out his door with his left hand another vehicle a white 15 seater PMV Bus, Ford, Reg. No. P6004 was travelling from behind heading for same direction, came too close and hit the side of the driver’s door and smashed his left ring finger in between the two doors and as the result the injured left ring finger, the tip of it was cut off. He said he was in great pain and was bleeding badly and was clearly seen by his passengers.

The complainant said he reported to Bukapena Police and received first aid medical treatment at Bukapena the next day on the 18th January 1990 he was referred to Mt. Hagen Traffic Police and also to Mt. Hagen Hospital for further treatment/action.

The Mt. Hagen based Traffic Police investigated the accident. Two duty Policemen namely constable Simon Noki and George Mome visited the scene the next day 18th January, 1990 and made accident reports. The action Officer George Mome had since resigned from the Police Force so could not be located to give evidence. However, constable Simon Noki was called and he gave account of receiving the report from the complainant and took action the same day 18th January 1990. At the trial the Police Road Accident Report (PRAR) was conditionally admitted for the purpose of showing that the accident was reported to Police and investigation carried out.

The complainant’s injured finger was treated at Mt. Hagen Hospital and was later reviewed by a Dr. Jacob Ollapalil on 27.4.90 and rated the injury at 100% loss of the distal phalanx of the ring finger and 5% loss of efficient function of the finger.

The defence called no evidence but generally denied liability on the basis that it was not possible for the complainant to sustain injury in the given situation as alleged in complainant’s case. The other argument was that the vehicle which caused the injury was not properly identified as required in law.

Defence relied on certain decided MVIT cases which discussed the issue of identification of vehicle causing injuries and referred to other elements under s. 54 of the Act (MVIT) as condition precedent to proving claims against the trust.

The following cases were cited on the issue of identification of vehicles:-

1. Garo Kei v. [1992] PNGLR PP 197-198
2. Waro Moses v. MVIT N1159
3. Imambu Alo v. MVIT [1992] PNGLR 487
4. Martin Kilte v. MVIT N1085

The following cases were cited on the issue of negligence:-

1. Lucy Kongupi v. MVIT N1043

2. Kulno Konzie v. MVIT (?) Injury to correspond with description of how accident happened.

3. The issues raised were-

(a) Whether or not the complainant had identified the vehicle at fault.

(b) Whether the complainant had established negligence in the other car?

(c) Whether the complainant had presented a credible claim.

The complainant’s case (as outlined above) was that the other vehicle did not stop after the accident. It was a hit and run situation. It was reported to Hagen Traffic Police the next day and do search and inquiry conducted but could not locate the vehicle at fault.

However, upon further investigation Police were able to identify owner of the vehicle and got the particulars as a white 15 seater PMV bus, Ford Reg. No. P 6004 owned by one Moses Bepi driven by one John Kum. Although it was hearsay evidence, the vehicle was identified so that assured the first issued. Refer to Walpe v. MVIT [1993] PNGLR 434. It was said in that case that as long as the injured person reported the accident immediately to the Police Station was sufficient search and inquiry. The same thing applies here.

On the issue of negligence, complainant’s case was that he was stationary on his left side of the road and there was enough space for another car to go through without obstruction. It was said in evidence that vehicle No. 1. speed on from behind and without due care and attention the front vehicle slammed against the door of vehicle No. 2 and thereby causing injury to complainant’s finger. The duty of care was owed by the vehicle which was in motion to avoid accident. The complainant’s bus was stationery so couldn’t have done anything to avoid the accident. I believe there was negligence on the part of vehicle No. 1.

On the issue of credible claim, I believe it was a credible claim because complainant reported to the nearest Aid Post for treatment and the instruction given and written down clinic cards was being injured in a car accident and none other. He was referred to Mt. Hagen Hospital with the same complaint where his finger was computated. He also reported to police the next day with same complaint when matter was fresh.

Other witnesses also testified that complainant was injured in car accident when they were passengers in his bus. The evidence was consistent.

There was a further issue raised in defence case on whether the nature of the injury correspond with the description on how the accident happened. They said how come only one finger was injured and not the others. I could well understood their point of view. However, the fact of the matters that other evidence suggested that this one finger was injured in that accident. We have no evidence on other causes. The proportion that it is a custom for a person to cut off finger in certain situation remains as hypothesis without substances.

For the above reasons I find that liability on the civil standard of proof.
On the issue of quantum,

MP. Tamutai Lawyers: Plaintiff
Kandakasi lawyers: Defendant