Kilte v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 28; N1085 (22 July 1992)

Unreported National Court Decisions

N1085

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO 541 OF 1987
MARTIN KILTE
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
17 June 1992
22 July 1992

NEGLIGENCE - liability - collision between 2 vehicles - plaintiff driver claiming against other vehicle - must bring evidence of registration and insurance of other vehicle or establish category of claim under s.54 (1) of Motor Vehicles (Third Party Insurance) Act - claim dismissed.

Counsel:

A. Yer for the Plaintiff

A. Kandakasi for the Defendant

22 July 1992

WOODS J: The Plaintiff is cla damagdamages for personal injuries he received when the vehicle he was driving on the evening of 21st December 1985 along the Highlands Highway towards Mount Hagen from Togoba collided with a roller owned by Pangia Constructions. He was rendered unconscious and was taken to hospital where his right leg was amputated. Although he was the driver of his vehicle he is alleging that the roller was being driven in a negligent manner such that it was responsible for the accident and therefore liable for his injuries. The accident happened at about 10 pm at night and the plaintiff came upbehind the roller which was travelling towards Hagen on the same side of the road as himself. However as he approached he was confused about what the roller was as it had what looked like headlights facing towards him and he therefore assumed it was an oncoming vehicle then as he got closer he realised it was on the same side of the road as himself so he went to overtake it as it was travelling quite slowly and then another vehicle came the other way so he had to move back onto his side of the road and in doing so he collided with the roller. The Plaintiff was driving his employers vehicle a Mitsubishi Canter truck and had been dropping off employees out of Hagen and was returning to Hagen. He said he was not travelling at excessive speed.

A passenger Jacob Aris in the Canter with him says they came up behind the roller and it had big lights shining towards them and then another vehicle came from Hagen with headlights so they thought it was 2 vehicles coming towards them and then the plaintiff tried to avoid the vehicles and saw too late it was a roller and ran into it. He says the plaintiff was not speeding.

Another passenger in the Canter Jack Pura confirms the story of coming up behind the roller and being confused because of the bright lights shining behind the roller.

A Police Constable visited the scene the day after the accident and did an investigation however his report was not tendered. He said he saw the Canter truck and the roller at the scene. He formed a view as to who was at fault however there is some confusion about this as apparently he swore an affidavit in 1986 suggesting that the plaintiff collided with a vehicle coming from Hagen and then with the roller. The Policeman said that he charged the plaintiff with driving without a proper licence for the vehicle he was driving although the plaintiff said he was charged for driving with out due care and attention.

The Plaintiff alleges that the driver of the roller is liable for failing to put off the bright rear lights to avoid confusion, failing to warn the plaintiff of direction of travel or movement of the roller, and failing to keep the roller as near as possible to the left side of the road to avoid any collision.

To claim against the Trust you must under s.54 of the Motor Vehicles (Third Party Insurance) Act Ch 295 prove that your injuries were caused by or arose out of the use of -

a) ټ&##160; a60; a motormotor vehicle insured under this Act; or

b) an unid ureorcot iubeic stic street; or

c) ҈ a60; a motor vehicle onla on a pu a public street where the identity of ther vehcannoer duuiry earchstablished.

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You mYou must tust therefherefore first establish the basis of your your claim namely establish under which of the above 3 categories your claim comes under. This is more important here as the plaintiff is a driver and is alleging the negligence was in the other driver. However, the Plaintiff has not established the registration and insurance particulars of the roller. Usually of course the Police Motor Accident Report confirms the details of the registration and insurance but here the report has not been tendered. Neither the plaintiff nor the policeman are able to confirm the registration details of the roller and whether it was currently registered and insured at the date of the accident all they say is that they believed it was owned by Pangia Constructions Pty Ltd. Such should normally be proved by a certificate from the motor traffic registry or from the Motor Vehicles Insurance Trust. However, this has not been done here. So we do not now under what category this claim arises. There is no admission by the defendant that they did insure the roller. Therefore without going into where any negligence lay the plaintiff has not established the basis of his claim under s.54 of the Act.

I dismiss the claim.

Lawyer for the Plaintiff: A. Yer

Lawyer for the Defendant: Young & Williams.