Nima v Okuk [2008] PGDC 61; DC714 (11 April 2008)

DC714

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 813 of 2007

BETWEEN

JACOB NIMA
Complainant

AND

WILLIE OKUK
Defendant

Kundiawa: M Gauli, PM
2008: April 11

CIVIL - Claims damages – Negligent – Driving on the opposite lane – Contributory negligence – Driving a vehicle with defective brakes or tyre (s) – Driving downhill at high speed during heavy rain – Damage apportioned.

Cases Cited:
Nil

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendant - In Person

11 April 2008

DECISION OF THE COURT

M Gauli, PM: The complainant Jacob Nima claims against the defendant Willie Okuk the sum of K9, 700.00 in damages for his bus. It is alleged that on 06 April 2007 at Keamar road along the Okuk Highway the driver Wai Sipa drove the complainants 15 seater Toyota Hiace bus white in colour registration number P.294V, a PMV bus, from Goroka to Kundiawa. He was returning to Goroka in the afternoon when he collided into the rear trailer of the defendant’s Mazda Dyna T3500 PMV truck. The defendant denied liability and claims that the driver of the complainant’s bus was largely at fault.

2. Issues

There are three issues and they are:

i. Whether the defendant was negligent.

ii. Whether the complainant’s driver was contributory negligent.

iii. Whether the complainant’s bus sustained damage costing K9, 700.00.

3. Complainant’s Evidence

The complainant and his witness Wai Sipa who is the driver of his PMV 15 seater bus, gave evidence. The complainant Jacob Nima’s evidence is that he was not present at the scene at the time of the accident. He was present the next day at Chuave Police Station when police charged the defendant for driving a motor vehicle without due care and attention. He was found guilty, convicted and fined K100.00 in default three (3) months imprisonment. He tendered a “Certificate of Conviction” marked EXHIBIT ‘A’. He gave evidence that his PMV bus sustained the following damages – front windscreen, R/H front door was bent inward, steering system broken and locked, front bonnet dented, R/H side front lights damaged, wiper, horn, driver’s seat, brakes and other minor damages. He got two quotations, one from the Ela Motors for K8, 488.93 and the other quote from Robin and Issac Motors Ltd for K8, 030.00. However he had his bus repaired by a private mechanic where he paid K2, 000.00 to him and only spent about K1, 400.00 on parts and material. His total expenses was K3, 400.00. No receipts of the purchase of the parts or the mechanic’s labour cost are been produced to the Court.

4. The witness Wai Sipa gave evidence that at the time of the accident there was heavy rain. He was descending the slope and there was a huge pothole or drop on the defendant’s side of the land. The defendant was ascending the slop and he drove onto the land of the 15 seater bus. The driver Wai Sipa on seeing this, he applied the brakes. Due to the slippery conditions of the road he skidded down and hit the right rear trailer of the defendant’s truck while the defendant was swaying back to his own lane. The point of impact was on the lane the 15 seater bus was travelling. The witness Wai Sipa admitted that he was going downhill at high speed. He however denied having a faulty or defective brake or smooth tyres to the bus he was driving. He denied driving on the defendant’s side of the lane immediately before the accident.

5. Defendant and his witnesses David Kaupa and Regina Waim gave evidence. Defendant Willie Okuk gave evidence that as he was ascending the slope he saw the 15 seater bus descending in the opposite direction at high speed. The defendant was on his own side of the land. The 15 seater bus was on the defendant’s side of the lane. The bus then swung to his own lane and in doing so the bus bumped into the right rear wheel of the defendant’s truck. And the bus deflected off to the right side of the defendant’s side of the road and stopped off the road. He (defendant) was charged for driving without due care and attention and he admitted being convicted and fined. During his traffic charge, the Kundiawa District Court found that the driver of the bus (Wai Sipa) largely contributed to the cause of incident.

6. Defendant’s witness David Kaupa gave evidence that he was standing in front of a trade store because of the heavy rain. He saw the 15 seater bus coming down hill on very high speed and was travelling on the defendant’s side of the lane. When he saw the dyna truck going uphill in the opposite direction, the 15 seater bus then swayed to his left land but the bus skidded downhill and bumped into the rear right wheels of the dyna truck.

7. The witness Regina Waim was in the driver’s cabin in the Mazda Dyna T3500 truck driven by the defendant. As they were ascending the slope the defendant moved to the opposite lane as there was a fault or drop on the defendant’s side of the lane. After going pass this drop the defendant moved back to his side of the land and proceeded to some 20 – 30 metres away from the drop when they saw the 15 seater bus coming downhill at high speed. Sensing that the bus was going to bump into them, she told the defendant to stump on the brakes hard and he did. They were on their side of the lane. The bus bumped into the right rear wheels of the defendant’s truck and the bus deflected off to its side of the left lane and stopped of the road.

8. The point of impact is disputed. The complainant claims that the point of impact occurred on the lane the 15 seater bus was travelling. The defendant claimed the point of impact was on the defendant’s lane. Because of this controversy I decided to see the decision of the Kundiawa District Court on a Traffic Case No. 524 of 2007 against the defendant Willie Okuk charged under Section 17 (2) Motor Traffic Act, for some assistance. That case was heard on 23 October 2007. His Worship Magistrate J Siki in his findings wrote and I quote:

“From the evidence by police and the defendant and having visited the scene and taken necessary measurements and viewed the surroundings and road condition, I find that there was a dip across the road measuring 8 metres being the total width of the road.

The defendant’s vehicle was travelling up hill after taking a smoother part of the road to his right and was in the process of pulling to his lane when the second vehicle came into contact about 25 metres from the dip.

The defendant’s vehicle is 5 metres long so was 5 body lengths of vehicle away from the dip to the point of impact. From this I find that the defendant was lazy and very slow to get to his lane given that he was on the Highlands Highway travelling uphill in a truck and not being mindful of other vehicles.

On the part of the bus driver I find that the bend is 30 metres away for the point of impact. It was raining and the road was wet. He was travelling downhill with passengers. He therefore was speeding at a high speed and it can be well to say he had defective brakes causing the vehicle to come to a hault when stopped.

Given the objective view the bend was 30 metres from the point of impact, a long distance for vehicle to stop with working brakes. In that scene I find the driver was negligent and contributed in greater percentage to the accident, especially when I’ve been given all of skidding by the bus into the defendant’s vehicle.”

9. Despite these findings against the driver of the bus, His Worship found defendant Willie guilty and convicted him. It is clear from His Worship’s findings that the point of impact occurred on the lane the 15 seater bus was travelling and about 25 metres after the defendant’s vehicle has gone passed the dip as His Worship said: “From this I find that the defendant was lazy and very slow to get to his lane _ _ _ _”. I find that His Worship made a very good observation of the scene of the accident and his findings were quite appropriate. I am satisfied that the point of impact occurred on the lane the 15 seater bus was travelling and not on the defendant’s side of the lane.

10. Suppose the defendant was on his own lane and the 15 seater bus was approaching on the defendant’s lane at high speed and skidding, I find it not convincing when the bus hit the right rear wheels of the defendant’s truck. The bus hit the right rear wheel because the defendant was still in the process of moving from the lane the 15 seater bus was travelling to defendants own lane. The defendant failed to move back to his side of the lane as soon as he has gone passed the dip or the fault on the road, but he continued to travel on the opposite lane for a while until the bus came into the view. I find the defendant was negligent under that circumstance.

11. At the time of the accident it was raining heavily and the road would be slippery. There is no dispute that the road surface was good. It has a bitumen surface. The bus driver was driving at high speed down the slope knowing there was a dip only some metres away. When he saw the defendant’s vehicle, he applied the brakes but due to the slippery condition the bus skidded down. If the brakes and the tyres of the bus were in good and perfect conditions, I find it hard to believe the bus skidding unless either the brakes or the tyres or both the brakes and tyres were defective or unless it was on a dirt road. I find that the driver of the 15 seater bus has contributed to the accident as he was driving at high speed down the slope while it was raining heavily and with the knowledge that he had either defective brakes or tyres or both.

12. The complainant claims damages in the sum of K9, 700.00. He had quotations from the workshop which quotation are over K8, 000.00. However the damages to his vehicle were repaired by a private mechanic at a total cost of K3, 400.00 for labour and parts. There is no proof by receipts to confirm this expenses. However the lack of the receipts is not to say that the complainant did not incur any costs. I am satisfied that the complaint had incurred costs to about K3, 400.00 on repairs to his damaged bus and put his bus back on the road again. Though the quotations may be over K8, 000.00 his actual expenses was only K3, 400.00.

13. I do take into account that the bus was defective at the time of the incident. Either it has defective tyre(s) or brakes or both. The driver was speeding downhill while there was heavy down pour of rain. Aside from these contributing factors on the part of the bus and its driver, I find that the point of impact occurred on lane of the 15 seater bus. Taking all these circumstances into account for and again I consider that the defendant is liable for 60% of the total repair costs paid by the complainant. And I enter judgment in favour of the complainant in the sum of K2, 040.00 with costs of transport at K20.00 for return for 4 days, total K80.00. Total amount of K2, 120.00 be paid within six (6) months.

For the Complainant - In Person
For the Defendant - In Person