Konga v Ovasuru [2005] PGDC 65; DC276 (14 February 2005)

DC276

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 4851 OF 2004

Between

Paulus Konga
Complainant

V

Torea Gibson Ovasuru
Defendant

Port Moresby: Gauli, Magistrate
2004: December 14
2005: January 28, February 14

Counsel
Complainant In Person.
Defendant In Person.

DECISION OF THE COURT

Nature of the Complaint

The complainant claims damages sustained by his motor vehicle caused by the defendant’s negligent along the Hiritano Highway. He claims for the damages to the vehicle and a loss of income from the use of the vehicle.

Brief Facts

The complainant owns a PMV vehicle namely a Mitsubishi truck registration number P7527 red in colour. It operates on Route 300 via Port Moresby / Doa Rubber Plantation along the Hiritano Highway in the Central Province. Mr. Anton Paulias is the driver of this vehicle.

The defendant owns the other PMV truck namely a Mitsubishi canter truck registration number P5927, white in colour. This vehicle operates between Malalaua in the Gulf Province and Port Moresby in the National Capital District and it travels along the Hiritano Highway as well.

On 28th July 2004, the complainant’s vehicle was traveling towards Doa Rubber Plantation from the direction of Port Moresby, driven by the driver Anton Paulias. At about 7:30pm as the vehicle was traveling towards Sabusa Saw Mill there was the defendant’s vehicle approaching in the opposite direction at the corner. As both vehicles were turning the corner, the right hand side tray of the defendant’s vehicle came in contact with the right hand side of the complainant’s vehicle causing damage to its windscreen and the side of the body of the vehicle. The defendant’s vehicle proceeded to Port Moresby without stopping but the complainant’s driver Anton Paulus recognized the defendant’s vehicle. The accident occurred when the defendant was trying to avoid the pothole at the corner.

On the next day the accident was reported to police. The defendant’s vehicle was located at Gerehu Stage 6 and reported to the Police. The defendant was charged for driving without due care and attention. He was convicted of the charge and fined K300.00. In default 4 months imprisonment by the Boroko District Court on the 9th November 2004. The certificate of convictions tendered to this Court.

The facts are not much in dispute except there is dispute as to on whose side of the lane the point of impact occurred and which of the drivers was at fault. And I now discuss the evidence of the parties.

Evidence for the Complainant

The evidence for the complainant’s side of the case is supported by the witnesses namely:

(1) Anthon Paulias (the driver of the complainant’s vehicle);

(2) Paulus Konga (the complainant himself) and;

(3) Senior Constable John Aip of the Highway Police, Gordons.

Witness Anthon Paulias stated in his Affidavit in particular paragraph 3 and 4 as follows:-

"3. On the 28/07/04 at about 7:30pm I was driving along the Hiritano Highway towards Doa Rubber Plantation. As I was driving towards Sabusa on my left lane I saw another PMV truck coming towards me. As I came closer I recognized the PMV’s registration number as P592Y white in colour Mitsubishi belonging to the defendant on my lane.

When I saw that, I slowed down my vehicle but he came straight at me and bumped my right hand side of the vehicle causing damages to the front windscreen and the side body of the vehicle (emphasis is mind).

4. I stopped my vehicle and came out to see if the other vehicle would stop to reason out the cause of the accident but instead he continued to drive towards Port Moresby"

The witness Paulus Konga (complainant) gave evidence of what was told to him by his driver Anton Paulias of the accident. He did not witnessed the accident himself.

The third witness Senior Constable John Oip was told of the accident the next day, the 29th July 2004. He took both drivers to the scene of the accident through his investigations he found the defendant to be at fault as he was trying to avoid the pothole on his right lane (toward Port Moresby) he turned to his left lane which resulted in the accident (refer to paragraph 2 of his affidavit).

There were no eye witnesses to the accident been called, in particular the crew of the complainant’s vehicle if he was on the vehicle at the time of the accident.

The witness Anton Paulias never stated in his affidavit that the accident occurred wile both vehicle were negotiating the bend. He never stated that the defendant whilst trying to avoid a pothole that he ran into the complainant’s vehicle. This story about the pothole was only raised by the Police Investigating Officer S/C John Oip. In paragraph 2 of his Affidavit he stated:

"I found the defendant to be at fault--- he was trying to avoid a pothole which was on the right lane who turned onto the left land to try to avoid it. Who in the clause of doing that bumped into the complainant’s vehicle ---"

This evidence is saying that the pothole was on the right side of the defendant’s lane. To avoid that pothole the defendant turned his vehicle to his left side. Clearly the defendant was turning his vehicle away from the complainant’s vehicle which was on the right side of the defendant. That been the situation it is unlikely for the defendant to cause the accident unless the driver of the complainant’s vehicle moved to the defendant’s side of the lane.

The defendants evidence is supported by the defendant Torea Gibson Ovasuru, (2) John Ovasuru (the crew); (3) John Kautete (a passenger); (4) Kwati Ovasuru (another crew). The defendant Torea Gibson Ovasuru in his Affidavit in Paragraphs 4.5 and 6 said as follows:-

"4. About 300 metres after Sabusa Saw Mill junction is a left turn corner. (The corner in question).

5. As I was about to turn the left hand corner (my side), I saw the oncoming vehicle turning the corner on my lane thereby hitting my right hand side tray.

6. Four persons sustained injuries in the collision so I rushed them to the hospital"

The evidence of the witness John Ovasuru is much the same. He said as they were about to turn the corner he saw the oncoming vehicle cutting into the defendant’s side of the lane thereby caused the accident. The other witnesses John Kautete and Kwati Ovasuru gave the same version.

From the defence evidence as presented the accident occurred while negotiating the corner. In the direction to which the defendant was traveling, the defendant has to turn to his left to turn the corner whereas the complainant’s vehicle has to turn to his right to turn the corner. The defendant’s vehicle was just about to negotiate that corner when he saw the complainant’s vehicle just about to complete negotiating the corner and that the complainant’s vehicle was on the defendant’s side of the lane.

In assessing the evidence of both parties as they are presented before this Court, I consider that the evidence for the defendant is probably more truthful than the evidence for the complainant. The defendant was turning the corner on his left side of the lane when the complainant’s vehicle cut into the defendant’s side of the lane which resulted in the collision. I find the defendant not liable for the damages and the case be dismissed forthwith.

Ordered accordingly