Kaupa v Motor Vehicle Insurance Ltd [2007] PGDC 1; DC494 (8 February 2007)

DC494

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 1158 OF 2005

BETWEEN

STEVEN KAUPA
Complainant

AND

MOTOR VEHICLE INSURANCE LIMITED
Defendant

Port Moresby: S GORA
2007: 8 February

Cases Cited
Elisabeth Lauwasi Moini v The Court of PNG [1977] PNGLR 39
Chapman v Hearse [1961] HCA 46; [1961] 106 C.L.R 112

Statute Cited
S.54(1) Motor Vehicle (Third Party Insurance) Act ch 295

Counsel
David Keta, for the Complainant
Judy Naipet, for the Defendant

GORA S: This is an action by the complainant commenced in 2002 against the defendant claiming damages arising from a motor vehicle accident in 1996.

2. The facts are that on or about 8 June 1996, at Nine (9) mile settlement outside of Port Moresby, the complainant was a passenger in a PMV bus registration No P071B (PMV Bus) which was involved in an accident. The nature of the accident is that the PMV Bus referred to above was travelling along the Hiritano Highway towards Bomana. While the passengers including the complainant were still in the said PMV Bus, the driver decided to overtake three (3) other vehicles in front and in the process of overtaking these other vehicles ran over a pedestrian who sustained serious injuries and was rushed to the Port Moresby General Hospital but later died.

3. Upon impact on the pedestrian, the driver of the PMV Bus quickly and suddenly escaped from the scene leaving the passengers struggling to rush out of the said PMV Bus when the relatives of the deceased started damaging the PMV Bus and also started assaulting the passengers.

4. Unfortunately for the defendant, he was still in the bus when the relatives of the deceased started assaulting the passengers. The defendant too was assaulted and severely beaten up whereby he received serious injuries to his body. He was subsequently admitted to the Port Moresby General Hospital.

5. It is for this reason, the complainant has come to this court seeking damages claiming that he suffered injuries as a result of the accident caused by the negligent driving of the PMV Bus driver who at that particular point in time was insured and therefore the defendants should be held liable/responsible.

6. The parties argued the following issues:

1. Whether the defendant is liable for injuries inflicted on him by bystanders, and

2. Whether the attack on the complainant by bystanders was reasonably foreseeable consequence of the breach of the duty of care owned by the driver of the PMV Bus to his passengers, and

3. Whether or not a reasonable man should have foreseen that failure on his part to maintain proper control and management of the PMV bus resulting in death or injury to another user of the road would be likely to cause or bring a violent retaliatory action against the driver and the passengers by relatives of a pedestrian who is injured and later dies.

7. The complainants claim against the defendant is based on s 54(1) of the Motor Vehicle (Third Party Insurance) Act ch 295. This section provides for claims for damages and states as follows:

"Any claim for damages in the 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 enquiry and search be established.

"Shall be made against the successor company and not against the owner or driver of the motor vehicle and subject to s (5), any proceedings to enforce any such claim for damages shall be taken against the owner or driver of the motor vehicle".

8. And therefore the said complainant argues that the defendant is responsible for the injuries he sustained as per the provisions of the Act referred to above.

9. Both parties decided to give evidence by way of affidavit. But the defendant did not file any affidavits in its defence except the defence itself. The complainant on the other hand filed affidavits in support of his claim. He submitted that the PMV Bus was on the public road loaded with passengers including himself and the driver of the said PMV Bus owed a duty of care to his passengers and to other road users.

10. He submitted that the undisputed fact is that the driver overtook three (3) vehicles in front of him. While in that process of overtaking the driver hit a pedestrian who received/sustained injuries and later died. The driver was negligent in overtaking three vehicles hence causing accident injury the pedestrian. The complainant says that as a result of the negligent driving it set in motion violent physical retaliatory actions against the passengers of the PMV Bus. The driver luckily escaped knowing he had already caused a serious accident but the complainant and passengers were attacked and assaulted thereby sustaining injuries. The complainant further submits that the driver foresaw what would be the likely consequences of his negligent driving. He knew he and his passengers would be assaulted by the relatives of the pedestrian. That is why he escaped quickly leaving the complainant and other passengers at the mercy of the injured pedestrians relatives.

The complainant therefore maintains that the drivers act of negligent driving set in motion the attacks on himself and other passengers by the injured persons relatives.

11. The defendant on the other hand in its defence argued that the injuries sustained by the complainant were not directly as a result of the motor vehicle accident, but were rather inflicted on him by angry bystanders when the vehicle hit a pedestrian. The defendant further stressed that the complainant was victim of circumstances as a result of being in the wrong place at the wrong time and therefore the defendant cannot be liable for the injuries inflicted on the complainant by bystanders.

12. In considering the evidence and submissions of both parties on the issues alluded to above, I take particular note of a reported case which the counsel for the complainant referred. And this is the case of Elizabeth Lauwasi Moini v The Government of PNG [1977] PNGLR 39.

13. In this case an action was brought under the provisions of the Law Reform (Miscellaneous Provisions) Act 1962 (now repealed) for damages on behalf of a plaintiff widow and the children of the marriage. It appeared the plaintiff’s husband was travelling as a passenger in a motor vehicle owned by the government of Papua New Guinea when the vehicle became involved in an accident near Goroka in which a child pedestrian was killed and immediately after the accident, the plaintiff’s husband and the driver of the motor vehicle were murdered in a payback killing by irate villagers. The relevant issues for consideration were:

1. Was the driver of the vehicle negligent, and

2. Was the killing of the plaintiff’s husband forseeably consequences of negligent driving.

14. The court held that the only reasonable inference to be drawn from the evidence was that the accident occurred as a result of some fault on the part of the driver of the motor vehicle, and the accident could be attributable only to excessive speed in the circumstances or negligent failure of the driver to observe pedestrians on the road.

15. The court further held that on the balance of probabilities the accident resulted from the failure of the driver to observe a proper standard of care in the control and operation of the vehicle and immediately following the accident retaliatory action was taken by a group of angry and distressed villagers against the occupants of the motor vehicle, and as a result of this action the plaintiffs husband died.

16. The court further observed that the test to be applied whether the killing of the plaintiffs husband was a reasonable consequences of the breach of the duty of care owed by the driver of the motor vehicle to his passenger was whether or not a reasonable man should have foreseen that failure on his part to maintain proper control and management of the motor vehicle resulting in death or injury another user of the road would be likely to bring about violent retaliatory action against himself and other occupants of the vehicle at the hands of the kinsmen of the person killed or injured.

17. The court then, in following and applying the principles laid down in the case of Chapman v Hearse [1961] HCA 46; [1961] 106 C.L.R 112, concluded that deliberate and unlawful acts by third parties following a negligent act do not absolve the negligent party if it can be shown that the acts of the third parties are such as would be known by the ordinary reasonable man as to be likely consequence of a negligent act.

18. In the circumstances the question to be asked was whether a person in the position of the driver would know whether negligent driving causing death or injury to a villager in the Eastern Highlands of Papua New Guinea would be likely to set in motion physical retaliatory action against the occupants of the vehicle driver by him.

19. Upon the evidence and mindful of the considerable notoriety of violent retaliation at the scene of a motor vehicle accident to anyone familiar with the custom of the country and particularly in the Highlands there could be no doubt in the circumstances that violence of the kind that actually occurred was a foreseeable consequence of negligent driving and therefore the plaintiff was entitled to damages.

20. I have discussed the above case at length because the principles of Law discussed are significantly relevant to the case now before me especially in view of the fact that the complainant suffered injuries inflicted upon him deliberately and unlawfully by third parties following the accident caused by the driver upon another road user, a pedestrian, by reason of his negligent driving.

21. The Defence Counsel did not submit any counter argument pertaining to the principles discussed in the case referred to above (Elizabeth Lauwasi Moini vs. The Government of PNG). Nor did the Counsel show to this court whether these principles have changed in the recent years. I therefore take it that the position is still the same. He only argued that the injuries sustained by the Complainant were not directly as a result of the motor vehicle accident, but were inflicted on him by angry bystanders when the vehicle hit a pedestrian. The Defense Counsel submitted that the Complainant was a victim of circumstances as a result of being in the wrong place at the wrong time.

22. Hence in consideration of the issues in this case, I am not convinced by the Defence Counsel’s submissions alluded to above. The evidence before this court is quite overwhelming to find that the accident took place as a result of the negligent driving by the driver of the PMV Bus. The driver overtook three other vehicles in front and in the process of overtaking hit a pedestrian causing serious injuries. The pedestrian later died in the hospital. This act of negligent driving, causing injury resulting in death, put in motion the events which followed thereafter particularly the retaliatory assaults inflicted on the passengers of the PMV Bus including the Complainant by bystanders and relatives of the injured pedestrian. The Defendant cannot argue that the Complainant was a victim of circumstances as a result of being in the wrong place at the wrong time.

23. As observed earlier, unlawful acts by third parties following a negligent act does not absolve the negligent party if it can be shown that acts of the third parties are such as would be known by the ordinary reasonable man as to be likely consequences of a negligent act (see Chapman vs. Hearse).

24. Circumstances in this country are such that when ever there is a motor vehicle accident causing injury or death, the relatives or bystanders would immediately retaliate by assaulting the driver and passengers of motor vehicle which causes accident. In my view most drivers are fully aware of this because when ever an accident occurs causing death or injury, they are the first ones to escape in a split of a second or alternatively they refuse to stop driving until they seek cover and safety in a nearest police station.

25. In the present case the driver was the first person to escape leaving the passengers including the Complainant to be assaulted by the bystanders and relatives of the injured pedestrian.

26. The driver, such as a reasonable man would do; ought to have known and foreseen that failure on his part to maintain proper control and management of the motor vehicle resulting in injury and subsequent death to another user of the road would be likely to bring about violent retaliation action against himself and other occupants of the vehicle at the hands of bystanders and kinsmen of the person injured and killed.

27. Hence the driver failed to foresee the likely consequences of his negligent driving and as a result the Complainant suffered and sustained serious injuries to his body. I therefore think that the Complainant is entitled to damages.

28. Accordingly I find the Defendant likely to pay damages to the Complainant.

29. Damages to be assessed.

_____________________________________

David Keta Lawyers, for Complainant
Mirupasi Lawyers, for Defendant