Kairi v State [2009] PGNC 156; N3766 (23 October 2009)

N3766

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. 611 OF 1995

BETWEEN:

CATHY KAIRI
Plaintiff

AND:

THE STATE
Defendant

Lae: Manuhu J
2008: 5, 22 September
2009: 23 October

PERSONAL INJURY CLAIM – Liability – Police vehicle ran into infant who was crossing road with big sister who was walking ahead of her – Point of collision was middle of the road – Claim of speeding differentiated from excessive speeding – No evidence of excessive speeding.

Cases cited in the judgment:

Priscilla Sos, an Infant by her next friend, Sos Pyawa v Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 249,
Aumi Pysoto Jacob and Two Other Widows Plus 10 Children v Motor Vehicles Insurance (PNG) Trust (1999) N1864.

Counsel:

S. Tedor, for the Plaintiff
Odu, for the Defendant

23 October, 2009

1. MANUHU J.: This is a personal injury claim for damages for pains and suffering, and loss of amenities, arising from a motor vehicle accident on Bumbu Road in Lae Morobe Province.

2. The Defendant did not adduce evidence. On the evidence, on 17th May 1994, at about 12:00pm, Roslyn Kairi crossed the road and Cathy followed. When Roslyn reached the other side, she looked back and saw that Cathy was about to reach her. At that instant, the police vehicle, allegedly speeding from Eriku to Kamkumung, hit Cathy.

3. The driver was a policeman. The vehicle was a Mazda 323 Station Wagon Reg. No. ZGC 320, a police issued government vehicle. The driver applied the brakes obviously to avoid hitting Cathy. It was futile. The point of impact was the right front side of the vehicle. Cathy was seriously injured. The driver assisted Cathy and Roslyn by transporting them and their father, who was subsequently picked up, to Angau Memorial General Hospital.

4. The Road Accident Report describes the accident slightly differently. It is stated that the driver was travelling along Bumbu Road towards Eriku. When he was about to reach the intersection of Buimo Road and Bumbu Road, Cathy ran across the road when the vehicle was "very near". She ran across the road "without looking to left and right". No action was taken against the driver. The driver was licenced as a Class 6 driver. He had had six years of driving experience. Drink driving was not suspected. There was no driver error.

5. It has to be determined whether the driver was negligent in his driving resulting in the accident. Mr. Tedor submits that the Road Accident Report is biased and based on hearsay evidence. Essentially, Roslyn’s evidence description of how the accident occurred should be accepted. Nonetheless, it is submitted that the vehicle was speeding and when confronted with Cathy "running across" the road the driver panicked, applied the brakes and in so doing lost control of the vehicle which moved to the right and collided with Cathy. This, it is submitted, is consistent with lack of care and attention combined with speeding. It is submitted that the accident could have been avoided but for the negligent driving.

6. The submission that the accident could have been avoided suggests that Cathy was also at fault. Cathy was only five years old then. When Roslyn crossed the road, Cathy followed her. I find as a matter of fact that, because of the oncoming vehicle, they actually ran across the road. In the process, Roslyn, as a sister, failed in her duty of care towards her younger sister. Roslyn should have held Cathy by the hand and both should have crossed together to the other side. Better still, they should have waited for the vehicle to drive pass. They did not do that. Cathy, at the critical moment, was left on her own. Cathy lacked the capacity to make the necessary judgment to avoid being hit.

7. Be that as it may, was the driver at fault? The point of impact was the right front side of the vehicle. There is no evidence on the point of impact in relation to the road. There is no evidence if the vehicle skidded to the right or left. There is no evidence that the driver lost control of the vehicle. Therefore, the vehicle, in relation to the driver, was on the left lane as it should. Consequently, if Cathy was hit on the right front side of the vehicle, which was the driver’s side, then the point of impact in relation to the road would have been the middle part of the road. Clearly, Cathy was not supposed to be there.

8. But the main allegation against the driver is that he was speeding. He applied the brakes as he saw Cathy crossed the road but the accident was not avoided. Just what is speeding is usually subjective. Additional facts and data are usually, if not always, necessary to objectively determine the speed of a vehicle at a given time.

9. The need for additional facts and data is demonstrated firstly in the case of Priscilla Sos, an Infant by her next friend, Sos Pyawa v Motor Vehicles Insurance (PNG) Trust [1995] PNGLR 249, where, Woods J said:

"While people talk of speeding there is no clear evidence to suggest any excessive speed." (my underlining)

10. In the case of Aumi Pysoto Jacob and Two Other Widows Plus 10 Children v Motor Vehicles Insurance (PNG) Trust (1999) N1864, Kapi DCJ analyzed the evidence on speeding in the following manner:

"He described the vehicle as speeding. He was asked to clarify how fast the vehicle was travelling but was not able to do this. He suggested that the vehicle was speeding because he felt the wind on his face and it was cold. I find that I cannot rely on this evidence to prove that the vehicle was speeding. He was asleep at the critical time and was not able to see what happened. He failed to clarify what he meant by speeding."

11. Indeed, a witness must clarify what he means by speeding.

12. In this case, the only allegation on negligence on the part of the driver is speeding. Bearing in mind that Cathy was hit in the middle section of the road as she was running, how did any speeding contribute to the accident? Speeding could mean 40, 60, 80, or 100 mph, or more. Speeding could be acceptable or excessive and dangerous.

13. In the circumstances, Roslyn’s evidence on speeding has failed to meet the test of objectivity from which, on the balance of probabilities, a positive finding of fact could be made. In other words, I am not able to find that the driver was driving at a speed that fell short of his duty of care. In other words, I find that the driver was not negligent in his driving at the relevant time.

14. The proceeding is accordingly dismissed with costs.

_______________________________________________

Sialis Tedor Lawyers: Lawyer for the Plaintiff
Solicitor General: Lawyer for the Defendant