Nugints v Motor Vehicles Insurance (PNG) Trust [1992] PGNC 38; N1117 (16 November 1992)

Unreported National Court Decisions

N1117

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 634 OF 1986
PUNDUGL NUGINTS
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
19 October 1992
16 November 1992

NEGLIGENCE - death - dependency claim by widow and children - liability - attempting to climb onto moving vehicle - duty of care - intoxication - claim dismissed.

Counsel:

D L O’Connor for the Plaintiff

A Kandakasi for the Defendant.

WOODS J: This is a claim by the Plaintiff on behalf of herself and her children following the death of her husband WAMA NUGINTS who was killed when he attempted to climb aboard the back of a Datsun Utility Registered Number AEJ 271 near Koibuga Plantation on the 27th July 1984.

It is alleged that the death was caused by the negligence of the driver Toliu Kubak in failing to ensure no passengers wanted to get on or were in the process in getting aboard before he drove off.

The registration details of the vehicle is confirmed in the Road Accident Report and the Motor Vehicles Insurance Trust admits that the motor vehicle was insured with it pursuant to the provisions of the Motor Vehicles (Third Party Insurance) Act.

The evidence is that the Deceased was employed as a security employee at Koibuga Plantation. It appears that much of his security work may have been during the night time. Towards midday on the day of the incident a Datsun double cab utility owned by the Plantation was being driven by one Toliu Kubak who held a learners permit on the main road outside the Plantation and the deceased had run across to get onto the vehicle. There is some confusion on the evidence as to whether the vehicle had actually stopped for any reason before the deceased tried to get on. There is no evidence of any communication between the driver and the deceased as to the deceased asking for a ride or being offered a ride or whether the deceased was to get onto the vehicle as part of his employment with the company.

The medical report of death establishes that the deceased had been drinking alcohol prior to the accident. The police report confirms some evidence of the accused being under the influence of alcohol at the time he attempted to get onto the moving vehicle.

I am satisfied that the driver had no knowledge of the deceased wanting to get onto the vehicle or being required to get onto the vehicle. So what was the negligence in the driver. What duty of care did the driver owe to the deceased.

The Plaintiff submits that it is common knowledge that people will attempt to get onto the back of vehicles in PNG when they want to get a ride even without asking the driver and especially if the driver stops the vehicle near where the person is at the side of the road as if it is encouraging people who want lifts.

One cannot say that this is a traditional behaviour which should be recognised by the court as this possibility never existed in tradition, there were no vehicles, vehicles have only been a recent phenomena. Therefore is it a modern practice which leads to a situation even a no fault liability situation which should be recognised by the Courts. I find no basis for such a proposition. It is dangerous to ride on the back of a vehicle which is not properly equipped for passengers, such vehicles are not registered and insured for the carriage of passengers, and the courts should be attempting to assist with safe practices with motor vehicles which in the end is for the benefit of persons riding on them or travelling on the road.

So this Court cannot countenance a practice which is highly irregular, involves lack of consent in the driver and is dangerous.

Here there is no evidence that the driver had stopped to pick up the deceased, there is no evidence he even knew of or ought to have known of the existence of the deceased or of any desire of the deceased for a lift. So I can find there is no duty of care owed to the deceased in the circumstances and I find no liability.

I dismiss the claim.

Lawyer for the Plaintiff: D L O’Connor

Lawyer for the Defendant: Young & Williams