[national court of justice]

joe kopen

v

tom francis; and
independent state of papua new guinea

lae: kirriwom j

06 September & 04 October 2005

NEGLIGENCE - Voluntarily exposing oneself to risk of injury - Volunti non fit injuria - Absence of concept of no fault liability - Standard of proof in negligence.

Facts

This is a claim for damages for personal injuries. The plaintiff sues the first and second defendant for injuries sustained by him when a vehicle owned by the Police Department and driven by the first defendant ran over him as he was lying fast asleep on the ground in a popular public club where liquor is consumed by the club's patrons.

The defendants have denied liability. The issue that is eventually going to determine this case is:

Was the first defendant negligent in his handling of the motor vehicle when it ran over the plaintiff?

Held

1.	The law of negligence places the responsibility squarely on the victim where injury sustained by him was his own negligence or carelessness under the maxim volenti non fit injuria. It simply means that if one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting from it. Going to sleep in a public car park area is deliberately risking one's own safety from being accidentally run over by a vehicle and the risk becomes greater at night when visibility is bad without lights in the area.

2.	This case is distinguishable from Kewa Nui v MVIT (1992) N1044 wherein the plaintiff went to sleep in a grassed area where vehicles were not expected to be and neither was the plaintiff expected to be sleeping there. In this case, the plaintiff was drunk and fell asleep in the car park when he ought to have gone home or found a better place to go to sleep. 

3.	There is no such thing as no-fault liability in the law of negligence.

4.	The plaintiff has not proved his case on the balance of probabilities and his claim was dismissed.

Papua New Guinea cases cited

Kewa Nui v MVIT (1992) N1044.

Counsel

Mr Toggo, for the plaintiff.
Mr Gene, for the first & second defendants.

04 October 2005

Kirriwom j. This is a claim for damages for personal injuries. The plaintiff sues the first and second defendant for injuries sustained by him when a vehicle owned by the Police Department and driven by the first defendant ran over him as he was lying fast asleep on the ground in a popular public club where liquor is consumed by the club's patrons.

The defendants have denied liability. The issue that is eventually going to determine this case is:
(1)	Was the first defendant negligent in his handling of the motor vehicle when it ran over the plaintiff?

There are also issues of facts raised which are equally relevant for consideration:

2.	Was the first defendant under influence of liquor at the time he drove the police vehicle?
3.	Was the plaintiff heavily inebriated at the time when he was run over?
4.	Was the plaintiff sleeping in a safe and secure place within the club premises when run over by the vehicle?
5.	Was there adequate lighting for the first defendant to see clearly where he was reversing to at the time he ran over the plaintiff?
6.	Is the plaintiff liable for his own misfortune?

The Facts

The plaintiff was at Michael Mexico's club at Kamkumung Lae on 9 May 1997. It was about 8:30 – 9:00pm at night and he was sleeping on the grass beside the club at an area where other patrons were still drinking. The first defendant a member of the Wabag based Mobile Police with several of his comrades went to the same premises. While backing out of the driveway to turn, the vehicle reversed over the plaintiff who was fast asleep on the ground. After bringing the commotion under control, the first defendant immediately drove the plaintiff to the hospital at Angau where he underwent urgent operation and his spleen was removed as it was ruptured. Amongst the injuries suffered were a fractured right hand as well as the chest and abdominal areas. 

Evidence

The plaintiff called evidence which included himself, one Robert Timel, Peter Lun Yangun and Zacharias Kepongi. They were also cross examined on their affidavits. None of these witnesses actually saw what happened until after the accident. The only relevance in Zacharias Kepongi's evidence is in relation to the plaintiff's employment and how much he was earning at the time of the accident. But for purpose of determining liability, his evidence is immaterial. And the same goes for Robert Timel. He came to the scene after the injury and saw the plaintiff and helped to take him to the hospital and deposed to seeing the plaintiff in great pain after all the effects of alcohol had dissipated. He also said that no vehicles go to the area where the plaintiff was run over.

The only material witness in the plaintiff's case was Peter Lun Yangun. This witness was the plaintiff's companion with whom he was drinking that day at the club. They drank until the plaintiff became so drunk that he went to sleep on the grass outside the club house. He did not see what happened to the plaintiff until after the accident.

The plaintiff's own evidence was that he did not drink that day. He only admitted drinking the day before but not on this day. He said he was feeling unwell or sick and that was the reason he went down on the lawn in Michael Mexico's "private car-park" and went to sleep. He did not go to his house to sleep although it was couple of blocks away as he did not wish to displease his brother with whom he resided. He said his brother was a pastor who detested alcohol in his place and he respected him and would not go home if he had some drinks.

The first defendant gave evidence and refuted the plaintiff's allegations of him drinking alcohol and driving whilst under influence of alcohol when he ran over him. He however said that the plaintiff was 'dead drunk' at the time the vehicle ran over him. He said he could feel that the back wheel collided into something he felt was like a rock which did not respond until the wheel had rolled over him and he uttered sounds similar to a cat in an angry mood. He therefore stopped and asked the off-sider to jump out and investigate. It was discovered that the back wheel had run over a person sleeping on the ground.

The first defendant testified that the plaintiff was sleeping in the car park between two highway trucks and the area he was sleeping was dark. He was reversing out of Michael Mexico's private car park and in order to straighten his vehicle he had to reverse between those two big trucks. The only light shining from the house in the direction of the trucks was obscured by the trucks. Consequently it was impossible for him to see anything behind him as he reversed the vehicle out of Michael Mexico's private car park.

The first defendant also said that he was born SDA and never touched alcohol. He does not drink and did not drink that day. He was there to see Michael Mexico who was an old friend whom he called upon whenever he was in Lae. He said the plaintiff was sleeping in the car park which is not an appropriate place to lie down to rest. The only reason he was lying there was because he was dead drunk and he could tell this from the heavy smell from his mouth as he and others lifted him up and placed him in the car. 

Evaluation of evidence

On the evidence of the general layout of the place where this accident happened, I accept the evidence of the first defendant. At least he tendered a sketch-plan of the area which is marked as annexure "A" to his affidavit – Exh. D2. From this sketch I can at least analyse the positions of various fixtures referred to in the evidence especially the so-called 'private car-park' and the public car-park inside the club premises. I can see the route the first defendant traveled by reversing out of Michael Mexico's private car park. 

I note that the point of impact indicated in this sketch is inside the public car park between two highway trucks and not inside Michael Mexico's private car park.

The plaintiff who bears the onus of satisfying me on the balance of probabilities has not made any effort to create a clear picture for me to appreciate his story especially when this cause of action arose over eight years ago and the scene where this accident occurred has changed and is no longer the same.

Findings of facts

On the facts before me, I find that the plaintiff was on that day very drunk and was asleep on the ground in the car park when he was run over by the first defendant. However, I cannot make similar finding of the first defendant likewise being under the influence of liquor when he drove although such evidence was easy to obtain if this assertion was true. At most, it is only an assertion by the plaintiff which falls far short of proof by any credible evidence. There is no evidence at all.

The place where the plaintiff was asleep when run over was a car park where vehicles pull up and park. It is right in front of the bar area. Whether it is a private car-park or public car-park is immaterial. A car-park is a car parking area, not a sleeping-park or sleeping area for members of the club. Vehicles must be allowed to move in and out of parking areas freely without colliding into human bodies unnecessarily obstructing free traffic movement. It therefore matters not to me where the plaintiff was sleeping in the public car park or private car park.

Assuming that the plaintiff is correct in that he was sleeping in Michael Mexico's private car park, would it have made any difference if the vehicle that ran over him was not the police vehicle but it was the home owner's vehicle? Definitely not. A home owner expects his car-park to be free of obstruction at all times in case he needs to drive out in an emergency. The plaintiff cannot claim compensation if he placed himself under the wheels of the home owner's vehicle. He does not check to see if any one is sleeping behind his vehicle before he reverses out although any prudent driver should do that. But failing to do it in his own drive way does not automatically make him liable in negligence if he runs over somebody in his driveway, particularly in the night.

It seems to me that the plaintiff sued the wrong person. The one who should be sued is the owner of the premises where he got injured for not providing a safe place for him to rest after he had too much to drink. That is if the proprietor had any legal obligation to provide such a place which I doubt. It is high time those who patronize public places where liquor is consumed discipline themselves to drink within reasonable limits and retire home and have decent rest when they have had enough instead of abusing alcohol by drinking until their eyeballs pop-out of their sockets and they fall like logs wherever they are. The law must not recognize this uncivilized practice of lying down everywhere and anywhere and going to sleep whether inebriated or sober as if that is an acceptable behaviour. It is definitely not. A licensed premises where liquor is consumed is inherently a dangerous place where all kinds of people meet there within the hours the club is licensed to operate.

A person who drinks himself out of his senses does so at his own risk or peril because he could get into trouble or get himself killed if he is not careful. The law of negligence places the responsibility squarely on the victim where injury sustained by him was his own negligence or carelessness under the maxim volenti non fit injuria. It simply means that if one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent is so doing, he is deemed to have assumed the risk and is precluded from a recovery for an injury resulting from it. Going to sleep in a public car park area is deliberately risking one's own safety from being accidentally run over by a vehicle and the risk becomes greater at night when visibility is bad without lights in the area.

This case is distinguishable from Kewa Nui v MVIT (1992) N1044 where the plaintiff was run over by a motor vehicle in an area covered in grass behind an informal market place where many people go. The plaintiff had gone to Kagamuga with others to sell their produce at the informal market. As they did so, he went over to the grassed area behind the selling area and went to sleep. And while he was asleep a motor vehicle reversed over him and injured him. The court found that the vehicle was not supposed to be there in the first place and further the plaintiff likewise was not supposed to be sleeping there and apportioned the liability at fifty-fifty. Woods, J said:

"A view of the scene was taken but unfortunately it had been changed since the time of the accident and now there is no longer any access to vehicles the way the subject vehicle came in 1990. However it is understood that at the time there was no proper road there only been an informal little used track at the rear of the grassed area behind the unofficial market. There is no suggestion or evidence from the Police report to suggest that the driver was breaking the law in being where he was and the Police did not lay any charges against the driver.

So the Court is faced with two versions of how the incident happened. The plaintiff says he was sleeping on the grass when the vehicle came and backed over him. The driver says that when he drove in there was no one adjacent to his vehicle or adjacent to the track and so when he reversed to go out about 5 minutes later he had not expected anyone to place themselves immediately behind his vehicle. So was the plaintiff on the grassed area all the time or had he only come there when the car came in. There are no witnesses to support that the plaintiff was there for some time lying sleeping on the grass. On the other hand there are no other witnesses to support the driver's understanding that the plaintiff must have suddenly placed himself just behind the vehicle.

The court in Papua New Guinea in this type of case involving motor vehicles is often faced with claimants and a society who believe in a no fault liability which is akin to their traditional expectations of compensation for any form of injury or damage. However the law the courts must apply is a law based on the need to prove negligence before there is any liability.

On the facts and conflicts in this case I must find that the driver was in a place not normally used by motor vehicles and a place where people sometimes sit or even lie down on the grass. Therefore there was an extra responsibility or duty of care on the driver of any vehicle who drove onto that area. So I must find some negligence in the driver. However I am still puzzled as to how the Plaintiff got to be where he could not to be seen by the driver. It could have only been his carelessness. So I therefore find a carelessness and therefore a negligence in both the plaintiff and the driver. I apportion liability at 50% each."

The factual circumstances in the above case were not too dissimilar to the one before me. While the plaintiff went to sleep in a grassed area where vehicles were not expected to be there and neither was the plaintiff expected to be sleeping there, in this case the plaintiff was drunk and fell asleep in the car park when he ought to have gone home or found a better place to go to sleep. A parking lot in front of licensed premises where liquor is consumed is not a safe place to sleep. Anyone who uncaringly and heedlessly without regard for his safety takes a deliberate risk in subjecting himself to a foreseeable risk must accept the consequences of his poor or bad judgment. There is no such thing as no-fault liability in the law of negligence. In my view, to accede to this kind of claim is extending the law beyond common sense. Not every accident giving rise to serious injuries is compensable whether it is caused by motor vehicle or human error. If a person brings injuries upon himself by his own deliberate acts or omissions, he carries his own misfortune and cannot blame anyone else.

The plaintiff has not proven his case on the balance of probabilities and I dismiss his claim. Plaintiff shall pay the defendants' costs, if not agreed to, then it be taxed.

Lawyer for the plaintiff: Warner Shand Lawyers.
Lawyer for the defence: Paraka Lawyers.