Jonnah v Motor Vehicles Insurance (PNG) Trust [1990] PGNC 43; N875 (24 July 1990)

Unreported National Court Decisions

N875

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 49 OF 1989
WIP JONNAH
-V-
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
21-22 May 1990
12-13 June 1990
24 July 1990

NEGLIGENCE - death - claim by widow - motor vehicle accident - Onus of proof - conflicting stories - No independent evidence - scene not preserved for independent police report - probabilities equal - plaintiff failed to satisfy onus - claim dismissed.

Counsel:

J. Pakau for Plaintiff

K. Yalo for Defendant

24 July 1990

WOODS J: The Plaintiff e wife of onof one Jonnah Kundi who died on the 17th April 1987 after allegedly being struck by a motor vehicle while standing a side of the Highway some few kilometres out of Togoba on the road to Enga. The alleged incd incident happened around 9pm in the evening. The Plaintiff claims damages for the loss incurred by her and their 2 children as dependents of the deceased.

The Plaintiff alleges that the vehicle that struck and killed her husband was a Nissan Cabstar Regn No AFD 443 driven by Timothy Tipitop of Kuman village Wapenamanda. This vehicle was insured by the Motor Vehicles Insurance (PNG) Trust.

Timothy Tipitop admits he was driving the said vehicle along the Highway at the time in question and was at the scene of the alleged incident at the time but denies that his vehicle struck the deceased.

I have 2 completely opposite versions of the incident that night and unfortunately I have no proper impartial police accident report of the incident. The Police Accident Report tendered appears to be completely based on hearsay evidence given to the police by interested parties and there is no independent analysis of the scene or the vehicle by any investigating police. Further it appears that no police action was taken for any negligence leading to the death.

The Plaintiff’s witnesses say they were standing at the side of the road with the deceased talking when a vehicle came and struck the deceased and rolled him into a drain at the side of the road and pinned him against the bank of the drain. They said the deceased told them he was alright and they then lifted the vehicle off the deceased and took him to the house where he died shortly after. They said that the driver and the passengers on the vehicle ran away. They said it was the passengers side of the vehicle that struck the deceased and presumably then pinned him against the bank. One of the witnesses say there was only the three of them at the scene when it happened.

The driver of the Nissan vehicle alleged to have struck the deceased states he was driving his vehicle to Mt Hagen that evening and he had 11 passengers in the vehicle with him. He said as he was coming towards Togoba he saw some vehicle lights pointing in his directing and as he slowed down and got closer he realised the vehicle was facing his direction but blocking his side of the road. So he came and stopped his vehicle. He said there were a number of people around and when he tried to find out what was wrong he was attacked and hit and so he ran away. He said he then reported the matter to the police the next day. He denies having struck anyone and asserts that he came to a stop to see what was happening and because the other vehicle was blocking the road. The Police accident reports repeats the reference by the driver to another vehicle blocking the road. The driver thought the men on the road and around the other car were drunk. The driver agrees he made a statement to the police about the incident and says he was never charged by the police for any offence related to the incident.

He describes the other vehicle which blocked the road as a Datsun 1200.

The driver’s story is supported by one of his passengers.

The road itself is a well sealed highway marked with a centre line and white side lines, there are sweeping curves at either side of the scene and the sides of the road have shallow drains and then high very grassy banks with a blind entrance coming on to the road from a house near the road.

I am faced with 2 completely different stories but each sounding consistent. Unfortunately there is no independent evidence of what the scene was immediately after the incident as there was no police report of the scene done by a policeman at the time. The only Police report appears to be based on hearsay.

In a case like this I really need the independent report of a policeman who arrives at the scene shortly afterwards plus a report of the state of damage to the vehicle. Without this I am forced to try and make assumptions from the evidence before me and a view of the scene.

The Plaintiff bears the onus of proof, the plaintiff must satisfy me that the deceased died from injuries received by being struck by the stated vehicle driven by Timothy Tipitop. And the plaintiff must satisfy me that it is more probable than not that that vehicle struck the deceased.

There are a number of unanswered questions or gaps in the evidence to support the plaintiff’s case.

The distance between where the Plaintiff was struck and where at the view I was shown the vehicle came to rest is very short only about 10 metres, that is a very short distance for a vehicle to come to a halt without causing injuries to the people on the back by throwing them off. There is no evidence or suggestion that anyone on the Nissan was injured because of the vehicle going into the drain. Unfortunately there is no evidence as to the damage to the vehicle or where it was taken from. The Plaintiff’s witnesses on any version of the story had complete control of the scene after the incident yet they did nothing to ensure there was adequate independent analysis and reporting of the scene and the vehicle immediately after the accident. If people act recklessly immediately after an accident and do not preserve the scene for an independent police report they cannot then blame anyone else because we are unable to be sure what happened.

A police report of what the police saw when they arrived on the scene can often be critical for a later clear picture and analysis of exactly what happened.

The witnesses say the deceased was struck by the side of the vehicle, well if that is so then why wasn’t the deceased just thrown into the drain whilst the vehicle carried on further down the road, how could a moving vehicle strike a person on its side and then stay with the person pinned against the side.

I have great difficulty in fitting the description of how the deceased was struck and pinned with no one else being injured from the back of the vehicle or thrown out with the concept of a vehicle travelling at normal speed along the road with no reason to slow down or stop. It is just not feasible.

It is not just that the probabilities are equal, the plaintiff’s story just does not fit in with the scene and the normal movement of a motor vehicle.

In the circumstances I must find that the plaintiff has failed to satisfy his onus of proof and failed to substantiate his case against the Trust as insurer of motor vehicle Nissan Cabstar registered No AFD443.

I dismiss the claim.

Lawyer for the Plaintiff: J. K. Pakau & Assoc.

Lawyer for the Defendant: Young & Williams.