Temai v Motor Vehicles Insurance (PNG) Trust [1994] PGNC 1; N1442 (1 February 1994)

Unreported National Court Decisions

N1442

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 798 OF 1994
KIA TEMAI
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Waigani

Salika J
July 1996

MOTOR VEHICLE ACCIDENT - Burst tyre - personal injuries - liability to be proved - onus on plaintiff.

Cases Cited

June Bonnie v Motor Vehicles Insurance (PNG) Trust (1994) PNGLR 393

Counsel:

Mr Aluwe for the Plaintiff

Ms R Thompson for the Defendant

JUDGMENT

July 1996

SALIKA J: This matter was in e the cthe court by way of a Writ of Summons issued by the plaintiff against the defendant. Thentiff claims damages pues pursuant to the Motor Vehicle (Tharty Insurance) Act Chapter 295 and interests pursuant to t to the Judicial Proceedings (Interest on Debts and Damages) Act chapter 5>

The plaintiff gave evie evidence that she was involved in a motor vehicle accident. She sae was travelling on g on a Mitsubishi open back utility. She satop of a bag of kauk kaukau in the tray of the vehicle. She gavdence that one ofty oftyres of the vehicle had a puncture and the vehicle overturerturned. Howen cross examination shon she said when the tyre punctured thicle went to the side of the road but did not capsize.&#16. She saier the accident shet she was taken to the Goroka hospital as admitted there for 8 days days. A al report was prepared bred by a doctor who described her injuries as:

“She wan to be in pain but otherwiherwise stable. Examination showed ighte to be compleompleted distorted with increased mobility, swelling tenderness and crepitus, and abrasions (minor) on the lateral aspect of the right foot. The osis of a Pott&#8 Frac Fracof the right ankl ankle wase was confirmed with the X-ray (X-ray No: E7478) - showing whole ankle dislocation with fracture of the memalleolus.

Treatment involved:

a) #160;ـn Cl0; Closed reduction and plaster cast of that ankle (Right) under general anaesthesia (Ketamine).

b) &##160;; A60lgesalgesics focs for pain - Pethidine.

c);ټ & Rest for rightright lower limb cimb closed reduction of injury (fracture dislocation right ankle) was satiory a X-raE7583, and wand was dias discharged after eight days.

Her progress to date has been satissatisfactory after five months with clinical and radiological (X-ray F1559) union and stability of the ankle, and no permanent disability exists - functionally. However cally the injury iury is estimated to be of a loss of 5%. She wead a normal life othe otherwise.”

Another witTemai Peter gave evidence in support of the plaintiffs case saying that both the plaintiff tiff and himself were travelling together e same vehicle from Asaro waro when it overturned and capsized. He said when it overturned he jumped out of the vehicle. He gaidence that on the 1she 1st February 1994 he went to the police station to pick up a report of the accident done by the pol/p>

The defendant did not call any evidence.

I find the following facts to have beeablished by evidence:

(a) Twere ms ar vtoiclehaccidaccident in which the plaintiff was travelling in.

(b) The plaintiff was aepass wger with other people at the tray of the vehicle.

(c0;҈ 160; The pThe plaintlaintiff was sitting on top of a kaukau bag close to the rear of the vehicle while the vehicle was moving.

(d) &##160;; Onehe tyres of thef the vehicle was punctured and as a result the vehicle went went to thto the side of the road and overturned.

(f) She received mreatfont er her injuries.

I agree with the submission by the defendant that the plaintiff bears the onus of proof in establishing a claim against the defendant. In ord be ssful s. 54 of the Mote Motor Veor Vehiclehicles (Third Party Insurance) Act Chapter 295, the plaintiff must establish that her injuries were causedhe use of a motor vehicle which was insured under the Act and that the injuries were causedaused by the negligence of either the driver or the owner of the vehicle, whom the defendant is liable to indemnify.

The plaintiff in her statement of claim alleged:

(a) &&#160t sha was was a pass passenger on a Mitsubishi Utility, Registration Number AFG 969.

(b) ټ That onat one of the tyres of the vehicle suddenly burst forcing the vehicle to swerve to one side and forcing h fall off and injuring herself.

(c) That Nick Sapit wait was the owner and driver of the vehicle at the material time.

(d) That the vehiale w a atmatl material time registered under the Act.

(i) &#Driving with excessive speed in the circumstances;

(ii)  
r0; Dg vinhouitdue due check and mainte of yres;

(i160;& Driving in aerous manner;

>

(iv)&(iv) #160;&#160  ed to takeon to n to avorcivorcingPlainoff the Utility;

(v) &##160; Drivingiving withou due aare and atte attentionntion;

(vi) ed e a Land Cruiser uner uner under pder proper management and control.

In relation to the first allegatlegation ((a) above) she has established by evidence she pass on aubishi utility but she nor heor her witr witness ness estabestablished the registration number of the vehicle. In relation to (am satisfitisfied she had established that allegation. There isvidence in relatiolation to (c). There is likewise noence in relation to (d). In relation to (ere is no s no evidence of negl dent driving.&#160 The only eve of thse ofaccofaccident is an anan answer by the plaintiff to the following question in examin tion in chief:

“What caused the act? Wea punctured tyre tyre and the vehicle overturned.”

There is no evidence of (e) (i ) (ii), (iii), (iv) (v) and (vi).; There is no evidence of e of excessive speeding. There is no nce of drivingiving without due check and maintenance of the tyres. There is no evidence of why the tyre burst. The fact that yre burst isst is not in my view evidence that the own the driver drove without cout checking and maintaining the vehicle tyres. Furthermore there is no evidence of dangerous driving.&#1here is no evidence that that the driver failed to take action to avoid forcing the plaintiff off the vehicle.

There is also ndence that the driver drove without due care and attention.tion. There is also no evidence that the driver failed to keep the vehicle under proper management and control.

I refer to the case of June Bonnie v Motor Vehicles Insurance (PNG) Trust (19NGLR 393 and I would distinguish the facts from this case.&ase. In that case the victim was in a PMV. In this case the victim n s on an open back utility sitting on a kaukau bag.

Once again I agree with the defendant submissions that at best he coan surmise is that while driving along the road ooad one of the tyres was punctured which cich caused the vehicle to run off the road and overturn. This howevenot be evidencedence of negligence of the driver or the owner. vidence simply describes abes an accident which could not have been avoided by any conduct of the driver or the owner. I am of iew that the plainplaintifffailed to discharge her onus of proof. I dismiss her her claim.

There is one matter that I wish to make some remarks on0; Ibecoming far too common tmon that lawyer are not not preparing their clients cases properly in these type of cases. rs ofcal Rs, Poli Police Aice Accident reports, mechanical reports and some vital witnesses gene generally are not informed or summoned toar in court to give evidence. Imy view that a lawyer is r is under an obligation to i to inform and where necessary summon witnesses to appear in court to give evidence on behalf of his client. In this case for example the doctor was not summoned to give evidence. He had not even been asked to give evidence. The repas however tendereddered into evidence by consent of the de counsel. Similarly the police officer who authored tred the accident report was not summoned to give evidence. The plain#8217;s co had soad sought ught to tender the report through a witness who had paid a fee and was given it. The tender of the accideport was objected to by the defence counsel on the basis that the witness was not the authoauthor of the document. The defence el hao objectejected to its tender on the basis that the witness would not be able to answeanswer questions in relation to the reportefused to accept the accident report into evidence. In my view rs who fail to l to prto properly prepare their clients cases are being plain negligent in their duties and in my view are loosing the cases for their clients, cases they otherwise might have ad they been properly prepaprepared and been diligent. In my vi such cases the clhe client should be encouraged to sue their lawyers, for damages for professional negligence.

Lawyer for the Plaintiff: Joe Wal Lawyers

Lawyer for the Defendantng & Williams

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