Motor Vehicles Insurance (PNG) Trust v Enn [1991] PGNC 16; N987 (14 June 1991)

Unreported National Court Decisions

N987

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 25 OF 1991
MOTOR VEHICLES INSURANCE (PNG) TRUST
V
BAMMING ENN

Mount Hagen

Woods J
24 May 1991
14 June 1991

NEGLIGENCE - Motor vehicle accident - Liability - Door fell open and passenger fell out - Door wholly within the control of the complainant - No negligence in driver.

Appeal from District Court.

Counsel:

A Kandakasi, for the appellant.

P. Kopunye, for the respondent.

14 June 1991

WOODS J: This is an appgainst the Othe Orders at the District Court at Mount Hagen made on 15 February 1991 whereby the court ordered judgment for the complainant in the sum of K665.0>

The matter was a Personal Injuries Claim following an g an accident involving a passenger in a motor vehicle who fell out of the vehicle when the door opened as the car was rounding a corner. The Grounds of Appeal are that the Magistrate erred in finding for the complainant without the support of any evidence and that he erred in failing to give any due and proper consideration to the weight of the evidence.

The Magistrate in his reasons notes that there was no direct evidence that the driver was negligent but then he goes on to find that in his opinion:

“The driver was speeding on that section of the road small and many bends from my own observation of the road and as a result complainant fell down as vehicle turned which caused weight of complainant against the door to push open. If driver drove at slow rate complaint would have supported her own weight and even if she fell injuries would not have been caused to her.”

So the Magistrate after finding no evidence of negligence and thus no evidence of speeding then goes to assume from own knowledge of the road that the driver must have been speeding. This is a clear error in assessing the evidence. This is not finding what was more probable than not on the evidence but what he assumes when there was no evidence.

It was the passenger’s door which fell open, that door was wholly within the control of the complainant. She had entered by that door and shut it and she was leaning against it or seated next to it. No-one else had access to it, least of all the driver. There was no evidence of excessive speed which could have forced a properly shut door to open. Nor was there any evidence of poor maintenance such that the door of the vehicle was defective. Further the complainant was not a stranger to the vehicle as she was the wife of the driver and it was their own vehicle. Therefore the evidence is clear that the only negligence must have been in the complainant herself in not ensuring that the door was closed properly.

I am therefore satisfied that the finding against the appellant was not supported by the evidence and the Magistrate clearly erred.

I uphold the appeal and quash the order of the District Court.

Lawyer for the appellant: Young & Williams.

Lawyer for the respondent: Kopunye Lawyers.