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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO. 202 OF 2020
BETWEEN:
ALOIS HARRY KEN
as next friend for Deceased Infant Robert Alois Ken
- Plaintiff-
AND:
MOTOR VEHICLE INSURANCE LIMITED
-Defendant-
Waigani: Tamade AJ
2022: 18th July, 4th November
JUDGMENT- motor vehicle accident- negligent driving- death of a five year old child- best evidence principle and doctrine of res gestae discussed
Cases Cited:
Loa v Kimas [2014] PGNC 209; N5849
Bukoya v State [2007] PGSC 15; SC887
State v Wanjil [1997] PGNC 16; N1516
Dowsett Engineering (New Guinea) Pty Ltd v Edwards; re Jordan trading as Jordan Lighting [1979] PNGLR 426
Tuman v Motor Vehicles Insurance Ltd [2017] PGNC 375; N6923
Ibabe, an Infant, by his next friend, Ibabe v The State [1990] PGNC 47; N897
Robert Brown v. MVIL [1980] PNGLR 409
Popo v Papua New Guinea Electricity Commission [2014] PGSC 37; SC1360
Counsel:
Ms. Nicole Kamjua, for the Plaintiff
Mr. Jessy Biar, for the Defendant
4th November, 2022
1. TAMADE AJ: This is a dependency claim by the Plaintiff against the Defendant for the negligent driving causing death of the Plaintiff’s son who was an infant at the time of death. The Plaintiff alleges that the Defendant is liable to pay damages for the loss of his son pursuant to the Motor Vehicle (Third Party Insurance) Act 1974.
2. On 28 March 2018 at around 6 pm, Alios Harry Ken was attempting to cross the road at 9 Mile at the former Port Moresby Show Ground with his children and his wife when his son was run over by a vehicle owned by BNG Trading Company Limited which was an Isuzu Truck white in Colour with the Registration No. BEQ 091. The subject vehicle at the time of the incident was driven by an employee of BNG Trading Company Limited.
3. The Plaintiff’s claim is essentially for negligent driving by the driver of the vehicle that the driver, Steven Oa was driving at a very high speed, and he failed to apply the brakes promptly to avoid hitting the child. The facts of the case alleged that the deceased infant, five years of age at the time was crossing the road where there are double lines separated by a traffic island. The deceased mother had crossed over from the first lane over to the island across to the opposite lane when the Plaintiff was still with his brother attempting to cross the first lane to the island. As his mother turned back to see her children after she had reached the other side, she saw her son got hit by the speeding vehicle with loud music blaring from the car. The vehicle after hitting the child sped off and the infant’s mother ran to her child however her son had succumbed to the tragic event.
4. At the trial of this matter, Mr. Biar of the Defendant raised objections to the evidence of the Plaintiff that under section 54 of the MVIL Act, the two important evidences are the Police Road Accident Report from the Police Traffic Officer who investigated the Report and the Medical Report from the medical doctor who conducted the medical examination of the deceased. Mr. Biar argues that these critical documents are hearsay as they were no adduced through the direct responsible officer and or medical doctor but were adduced through the Affidavit of the Plaintiff and Inspector Gabriel Kake.
5. It is also Mr. Biar’s submissions that the Plaintiff’s pleadings do not support the claim and are deficient and that the Plaintiff solely contributed to the loss of his son and therefore MVIL should not be liable.
Objections to Evidence
6. At the trial of this matter on hearing objections and arguments from counsel on the Police Road Accident Report and the Medical Report, I made a ruling that I will allow these evidence as in the absence of any other evidence, I found that it was good evidence and albeit the only evidence available and it was the best the Court could work with as having admonished counsel that perhaps counsel did not put in the work to get the case ready, the Court was left with that evidence as the Plaintiff’s evidence, the Court would accept the evidence but decide on how much weight it was to give on the evidence. [1]
7. In the Fred Bukoya v The State[2] case, the principle of best evidence was discussed by the Supreme Court that:
“There was no evidence that the witnesses were not available, or that calling them would incur hardship, cost or delay. Not requiring the witnesses to be called offended the "best evidence" rule and resulted in the Appellant not receiving a fair hearing...”
8. Ms Kamjua of the Plaintiff concedes that these documents being the Police Road Accident Report and the Medical Report etc maybe hearsay contrary to the provisions of the Evidence Act as they have not been tendered through the author of these documents however, she argues the doctrine of res gestae. Ms Kamjua submits that the Police Officer who prepared the Police traffic Accident Report can not be reached as he is no longer with the Police Force and the doctors who examined the deceased could not be reached. I am of the view that Ms Kamjua’s efforts have not been diligent enough and present in Court is a weary Plaintiff and his wife who want closure to this matter.
9. As to the deficiency of pleadings, Ms Kamjua submits that the evidence is sufficient to make out a case for the Plaintiff. I would implore counsel never to make out a half-baked case for their clients and to always walk an extra mile, always go beyond in diligently serving their clients, it is a profession mind you.
.10. As to the doctrine of res gestae, it means the events, circumstances, remarks etc which relate to a particular case especially as constituting admissible evidence in Court. Acting Justice Lenalia (as he then was) in the case of State v Wanjil[3] said it this way:
The doctrine of res gestae is mainly concerned with admissibility of statements made contemporaneously with the “factum probandum”. A fact may be relevant to the “factum probans” because it throws light on it by reason of its proximity in time, place or circumstances. It is said that under this doctrine evidence may be received although it may infringe the rule against hearsay, the opinion rule or the rule against self-corroboration. Thus, where an item of evidence forms part of the res gestae rule, simply means that, that item is relevant on account of its being made contemporaneously with the matters under investigation.
11. In the Supreme Court case of Dowsett Engineering (New Guinea) Pty Ltd v Edwards; re Jordan trading as Jordan Lighting[4], Kearney J (as he then was) said this:
“If, however, it was not mere interpretation but simply second-hand hearsay, then in the particular circumstances of this case, I would agree with my brother Greville Smith that the additional link thereby involved does not weaken the strength of the chain and the evidence is admissible. The principle applicable is that laid down in Ratten v. The Queen [dlxviii]19:
“... hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.”
There is no reason to limit the application of that principle to first-hand hearsay, though multiple oral hearsay would often in fact be unreliable. It is precisely in circumstances such as obtained here that a liberal interpretation of the res gestae rule is most warranted; in the search for truth, the rules of evidence should be guides, and not road-blocks. Of course, assessment of the weight of evidence thus admitted involves particularly careful scrutiny...”
12. For res gestae to be applicable, the Supreme Court held in Dowsett Engineering[5] that;
(1) A first-hand hearsay statement made by a bystander may be admitted as part of the res gestae subject to a consideration of the possibility of concoction of fabrication,
Ratten v. The Queen, [1971] UKPC 23; [1972] A.C. 378, applied; Edwards v. Jordan Lighting, [1978] P.N.G.L.R. 273, approved.
(2) A second-hand hearsay statement being the interpretation of what someone else said at the scene may be admitted as part of the res gestate where there is no doubt as to the accuracy of the interpretation;
Gaio v. The Queen [1960] HCA 70; (1960), 104 C.L.R. 419; and Fande Balo v. The Queen, [1975] P.N.G.L.R. 378, referred to.
(3) A second-hand hearsay statement being a reiteration of what someone else said at the scene (hearsay upon hearsay) may be admitted as part of the res gestae where on the particular facts there is no doubt as to its accuracy.
(4) Whether in the particular circumstances the evidence admitted was first-hand or second-hand hearsay it was properly admitted as part of the res gestae.
13. Whilst this case does not contain statements or remarks in order to invoke the res gestae doctrine, I am satisfied that the evidence is in the form of documents by the police investigating Officer as to the Police Traffic Report, Medical Report, and other documents from expert witnesses, I am satisfied that these documents are not concocted or fabricated, there is no doubt to my mind as to it’s accuracy and that the Plaintiff was given these documents in the process of his efforts to seek justice for his son by the Police and the Hospital where he brought his son. To disregard this evidence is contrary to the interest of justice in this case.
Is the driver of the vehicle negligent in driving the subject vehicle and hitting the child whilst he was crossing the road?
14. The Affidavit of Inspector Gabriel Kake contains the Police Accident Report which was prepared by Constable Neil Paimo. Inspector Gabriel Kake was present at the time of the accident and witnessed the report and was privy to the preparation of the report.
15. The following is what was stated in the Police Description of Accident:
“The Isuzu NPR Truck was on pick up and drop off runs from Gerehu towards 9 mile. At 8-mile, driver (Steven Oa) believed to be coming on quiet a high speed so can’t avoid a pedestrian who was crossing in front of him. Pedestrian was hit and ran over by the truck and when rushed to the hospital, was pronounced dead by doctors on arrival. Upon investigation, driver was found to be at fault for dangerously drove the said truck and killed the pedestrian. He was formally charged and detained in the cells.”
16. Acting Justice Liosi (as he then was) in the case of Tuman v Motor Vehicles Insurance Ltd[6] sets out the basic elements for the tort of negligence in such motor vehicles cases as:
“To establish liability the plaintiff needs to satisfy the five basic elements of the tort of negligence:
17. Ms. Kamjua has submitted various case law on the duty of drivers or motorists to take the highest care towards pedestrians on the road and other road users.[7] Every driver behind the wheel has a duty to any oncoming traffic and every pedestrian on the road and that duty extends in my view to ensure they are not distracted, or their vision impaired, and or they avoid using their portable electronic devices be it mobile phones and or place their incoming mobile phone calls on hands-free mode, etc to ensure they have full control of a moving vehicle and or take all measures to avoid causing an accident which can result in injury and loss of life.
18. Mr Biar has argued that if the Court finds that the driver of the subject vehicle is negligent, the Court should also find that the Plaintiff and his wife contributed to the accident which resulted in the loss of their son as they failed to take precautions to prevent the accident, they failed to hold the hand of their son whilst crossing the road. Mr. Biar submits that the Plaintiff and his wife’s conduct was reckless. He submits that the truck was traveling on the inside lane, especially on a freeway, therefore crossing a road on a freeway is very risky for an adult and extremely risky for an unsupervised five-year-old.
19. Mr. Biar submits that the conduct of the five-year-old was also reckless as he failed to remain in the centre of the traffic island and negligently crossed the road after almost being hit by the first vehicle. Perhaps he was in a hurry to reach his mother who was already on the safe end of the road. Mr. Biar puts the blame on a five-year-old intending to cross a road is not lost on me. The deceased was a child of tender age, he has no full awareness of the danger he puts himself in. His attention was on his mother, amid the risk of crossing the road, a five-year-old can see it as fun to run along with his parents across the road and that his mum had raced across, and therefore, he has to run along and catch up. A five-year-old can not be said to be fully aware of the risk of crossing a road. There is no evidence that this was a regular crossing for the family that the children would be exposed to the risk of fast-moving vehicles on the freeway if they lived nearby however if this was the fact, a five-year-old can not be said to be negligent as submitted by Mr. Biar, his parents bear that responsibility of a child unable to take care of himself in the way of danger.
20. I take Mr. Biar’s submissions that the Plaintiff and his wife should be liable for 70 percent of the loss as they contributed to the accident.
21. Ms. Kamjua has submitted that as per the evidence of the Plaintiff, they had seen that the vehicle was still far off and therefore they took the step to cross the road but as the vehicle was driving at a very high speed, it had already arrived when the child was in its’ way and the vehicle hit the child killing him. Ms. Kamjua argues that the driver of the fast-moving vehicle was entirely at fault. It could have been a long day for the driver, tiredness and fatigue could have taken hold of the driver, and or he was in a good mood blasting his music on the car stereo that he took no care rushing the afternoon drop off, one can only draw conclusions in the absence of actual evidence.
22. Mr Biar as submitted that because the Plaintiff had defects in his pleadings that he has not pleaded section 54 of the MVIL (Third Party Insurance) Act 1974 and section 29(2) of the Wrongs (Miscellaneous Provisions) Act 1975 regarding the claim for solatium, these claims should be denied.[8] The case of Anthony Polling v Motor Vehicle Insurance (PNG) Trust[9], impresses upon the Court to consider:
“on an application to dispense with strict compliance with the Rules regard should be had, inter alia, to the interests of justice and the impact of the non-compliance on the parties with relevance to whether in reality, the other party is in as good a position as if the rules had been complied with, or whether the party has been disadvantaged in regard to its rights in the matter.”
23. I am of the view that the Defendant is not disadvantaged by the lack of pleadings and taking into account the interest of justice principles, this is a tragic accident that could have been avoided by the driver of the vehicle. I uphold the submissions on the principle of contributory negligence that the Plaintiff and his wife could have done more as protectors of their son, they could have simply held on to his hands whilst attempting to cross the road, so he does not run off in his own. It is easy to say such words, but for parents after the fact, after the accident, it is traumatic and agonizing, an unfathomable loss for any parent.
24. Based on the evidence before the Court, I find the driver of the subject vehicle negligent in driving dangerously, recklessly, and without due care. That his conduct resulted in the vehicle that he was driving hitting the Plaintiff’s child whilst driving at high speed and therefore I find that the Defendant is liable to pay damages to the Plaintiff. I also find the Plaintiff and his wife have contributed to the loss by their own negligence of not holding their son’s hands whilst crossing the road. I find that liability should be apportioned for the Defendant to meet seventy percent of liability and the Plaintiff’s contributed thirty percent of the liability.
25. I therefore order that the matter proceed on to trial on assessment of damages for appropriate evidence to be adduced. Parties are at liberty also to negotiate any out of Court settlement on the Court’s finding on liability.
26. The Court therefore makes the following orders:
Orders accordingly.
________________________________________________________________
Office of the Public Solicitor: Lawyers for the Plaintiff
Motor Vehicle Insurance Limited- In-house Counsel: Lawyers for the Defendant
[1] Justice Kandakasi (as he then was) discussed the principle of ‘best evidence rule’ in Loa v Kimas [2014] PGNC 209; N5849 (29 December 2014)
[2] [2007] PGSC 15; SC887 (17 October 2007)
[3] [1997] PGNC 16; N1516 (24 February 1997)
[4] [1979] PGSC 8; [1979] PNGLR 426 (7 September 1979)
[5] Ibid
[6] [2017] PGNC 375; N6923 (27 September 2017)
[7] Ibabe, an Infant, by his next friend, Ibabe v The State [1990] PGNC 47; N897 (3 August 1990); Robert Brown v. MVIL [1980] PNGLR 409
[8] Mr Biar relies on Popo v Papua New Guinea Electricity Commission [2014] PGSC 37; SC1360 (4 July 2014)
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