Motor Vehicles Insurance (PNG) Trust v Matrinus Nunu [1998] PGSC 38; SC571 (7 October 1998)

Unreported Supreme Court Decisions

SC571

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO 48 OF 1997
BETWEEN
MOTOR VEHICLES INSURANCE (PNG) TRUST - APPELLANT
AND
MATRINUS NUNU - RESPONDENT

Waigani

Los Hinchliffe Akuram JJ
7 October 1998

Counsel

M Titus for the Appellant

K Kikira for the Respondent

7 October 1998

LOS HINCHLIFFE AKURAM JJ: The Appellant has sought leave to appeal against the findings of facts by the trial judge in the proceedings by Martinus Nunu –v- the Motor Vehicles Insurance (PNG) Trust. No separate notice of appeal was filed in accordance with the decision of the Supreme Court in Henzy Yakham and or v S & C Meriam SC 533. That case exempts notices of appeal lodged earlier like in this proceeding. Therefore we grant leave to appeal.

Before the trial judge was a proceeding commenced by the Respondent against the Appellant alleging negligence by Raphael Nagual who was the driver of a vehicle insured by the Appellant. The bare minimum of facts, avoiding any controversial parts, were that about one o’clock in the afternoon on 10 July, 1991 the Respondent was painting a wall of a building beside a public road in Rabaul. He was up on a ladder. The vehicle driven by Raphael Nagual was parked, in a general sense, opposite the building on the other side of the road. The vehicle was parked not along the side of the road but parked with its back towards the ladder. One other vehicle was also parked beside this vehicle on its right side. While the Respondent was painting, Raphael Nagual came out of his office, got into his car and reversed out and while in the reversing motion his vehicle bumped into the bottom of the ladder. As a result of the impact the ladder fell causing the Respondent to fall down. He suffered some injuries. The trial judge concluded that Raphael Nagual was negligent and he awarded a total of K51,456.68.

The grounds of appeal are:

(a) His Honour erred in finding Raphael Nagual negligent in the manner of his driving and thereby the cause of the injuries sustained by the Plaintiff.

(b) His Honour erred in law and in fact in finding that Raphael Nagual was negligent in his manner of driving against the weight of the evidence and against his own finding that it was not possible for Raphael Nagual to see the Respondent.

(c) His Honour erred in law and in fact in failing to find that there was no contributory negligence by the Respondent against the weight of the evidence.

The matter involves important questions of the test for the existence of a duty of care, the application of the concepts of “proximity” and “foreseeability”, and the standard of care required of persons having no knowledge of the risk of danger.

GROUNDS (A) AND (B)

Mr Titus argues that the trial judge was in error in concluding that Raphael Nagual was negligent when His Honour had not first found any facts upon which his conclusion was based. He has sought to rely on an English case Watt v Thomas (1947) 1 All ER 582.

It is true that the trial judge after finding that there was an accident and identifying the issue of determination, that is whether the driver of the vehicle was negligent, he did not make any finding of facts in a logical progression. He was very general with reference to the evidence and conclusion in one paragraph. He said:

“I have considered carefully the evidence and the submission that have made. It is quite clear from all of the evidence that an accident did occurred on 10 July 1991. The accident involved the motor vehicle insured by the defendant. I am also satisfied that the injuries received by the plaintiff are consistent with the evidence. That is to say that, I am satisfied that the accident and the subsequent injuries received by the plaintiff was caused by the negligent driving of Mr Nagual. He admits that it was possible that when he was reversing out his rear vision mirror may not have picked up the ladder because of the way and place it was placed and or located. I would also inferred that it was also possible because of the way he may have parked his vehicle. Thus it was not possible to have seen the ladder with the plaintiff on it. In all the circumstance, looking at all the evidence, from the beginning to the end and putting together all the bits and pieces, I am satisfied, that Mr Nagual was negligent in the management and driving of his vehicle. I find no evidence of contributory negligence in the plaintiff. It follows that I find the defendant liable. These shall be judgement for the plaintiff.” [ sic ]

It now befalls on the Supreme Court to put bits and pieces together whether indeed there was evidence to support the conclusion. It is trite that a trial judge must make clear finding, the reasons for so finding and the conclusion. It is trite because the party affected must know why the decision has gone certain way and the Appellate Court must also know on first look what the reasons and findings are. That is not to say that an appellate Court cannot make up its own mind on the evidence, but it would be a lot easier if the finding of facts and reasons were clearer.

GROUNDS C, D, E

With respect, despite His Honour saying that “looking at all the evidence, from beginning to end and putting together all the bits and pieces that Mr Nagual was negligent” he could not be that satisfied. That is because he could not discount the fact that the rear vision mirror might not have picked up the ladder because of the way and the place it was placed and or located. His Honour inferred that it was also possible because “of the way he may have parked his vehicle”. In other words the trial judge in saying that the accident occurred not solely because the driver was not looking or because of the manner in which he was driving, he impliedly said the driver could not be more careful than he already was.

What kind of people a driver like Nagual would owe duty to? They would be other motorists, cyclists and pedestrians and workers particularly those who work on the roads and those whose nature of work may require them to be in the precincts of the roads. It is our view that the last group must have some indication like warning sign of their presence.

In the normal circumstances a driver cannot be expected to see a person beside a road some six metres up a ladder painting unless there is some notice of his presence. The evidence before the trial judge was that road where the accident occurred was not a thorough fare but a place where vehicles would drive up and turn to drive along the same road to go out. The driver did not do that. He reversed straight back to the opposite side of the road to turn. Secondly in his evidence as to whether he saw the ladder he equivocated a little where, he said had seen it but because of the colour of it against the early afternoon sun he could not clearly make out what it was. Thirdly there was an unopposed evidence that the painting work had been in progress for two weeks to the date of accident. We consider therefore the trial judges conclusion, despite absence of clear finding of facts, was not wrong in law.

Having said that of course we sense an irresponsible attitude of the Respondent in his evidence. He knew that he was not working beside an abandoned road. He did not take any simple measure of precaution. When he was asked how far was the base of the ladder from the base of the wall to the edge of the road he reacted “I put that ladder on my side...I cannot come and put it on the road”. On the diagram that was produced in court the road could fit two vehicles at any one time. However when reversing from parking lot on to the road in order to turn, a part of any vehicle especially the back may go on to the side of the road. There is no law against that. The top of the ladder was not secured. The Respondent’s careless attitude is shown clearly in another reactionary response to a question “The ladder was still on my side so that nobody would come and move the ladder or disturb it. It was a big space”.

We grant that normally it is the trial judge that is in a superior position to judge the demeanour of the parties and their witnesses who give evidence. However, in this case the reactionary answers to various questions including the ones we have averted to speak louder. Obviously the Respondent did not take any precaution on his part. We would therefore hold that the trial judge made an error in holding that the accident was caused solely by the negligence of the driver. We consider that the Respondent was also negligent.

The Appellant has proposed liability be apportioned at 70% / 30%. We consider that the driver had a heavier responsibility when he was in charge a vehicle. We therefore apportion the liability at 75% / 25%. There is no challenge to the quantum of damages and therefore we confirm that award which is K57,456.68. We would order that the Appellant pay a sum of K43,092.51 to the Respondent.

Lawyers for the Appellant: Young & Williams Lawyers

Lawyers for the Respondent: Fiocco Posman & Kua Lawyers