SC1117

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA 15 OF 2010

BETWEEN:

SAM KURI
Appellant

AND:

MOTOR VEHICLES INSURANCE LIMITED
Respondent

Waigani: Injia CJ, Hartshorn and Sawong JJ
2011: 27th June
: 1st August

SUPREME COURT: Appeal – s. 54 (1)Motor Vehicle (Third party Insurance) Act – evidence required

Facts:

The appellant appeals the National Court dismissal of his action that sought damages from the respondent for the death of his son. The appellant's son, who at the time was intoxicated, died after falling from a forklift that was being driven by a person who was also allegedly intoxicated. The grounds of the appeal include that the trial Judge erred in finding that the statutory requirements of s. 54 (1) Motor Vehicle (Third Party Insurance) Act (MVIT Act) had not been proved and that the driver of the forklift was not wholly or partly negligent.

Held:

1.	As the respondent had denied and disputed the allegations as to registration and insurance, the only evidence of registration and insurance was contained in the accident report and there was no evidence that the information in the accident report had been obtained from a search at the Motor Traffic Registry, we are satisfied that the trial judge was entitled to find that the statutory requirements of s. 54 (1) MVIT Act had not been proved on the balance of probabilities. The appeal is therefore dismissed.

2. Bepiwan Ambom v. MVIT (1992) N1116 and Imambu Alo v. MVIT [1992] PNGLR 487 approved; Martin Kilte v. MVIT (1992) N1085 considered. 

Cases cited: 

Martin Kilte v. MVIT (1992) N1085 
Imambu Alo v. MVIT [1992] PNGLR 487 
Garo Kei v. MVIT [1992] PNGLR 195 
Wally v. MVIT (1992) N1028
Bepiwan Ambom v. MVIT (1992) N1116 
Kongapi v. MVIT (1992) N1043 
Kumbe v. MVIL (2005) N2860
 
Counsel:

Mr. R. Uware, for the Appellant 
Mr. R. Mulina, for the Respondent

1st August, 2011

1. BY THE COURT: The appellant appeals the National Court dismissal of his action that sought damages from the respondent for the death of his son. The appellant's son, who at the time was intoxicated, died after falling from a forklift that was being driven by a person who was also allegedly intoxicated.

2. The grounds of the appeal in essence are that the trial Judge erred in finding that on the balance of probabilities:

a)	the statutory requirements of s. 54 (1) MVIT Act had not been proved; and

b)	the driver of the forklift was not wholly or partly negligent.	

3. The appellant must succeed with both of these grounds for his appeal to be upheld. The grounds do not require consideration in any particular order. We consider ground 2 (a) first.

4. The appellant submits that the evidence adduced on his behalf at trial properly established the issue of whether the forklift was registered and insured for the purposes of establishing a right to bring a damages claim against the respondent under s. 54 (1) MVIT Act, and in failing to so find, the trial judge fell into error.

5. The evidence that the forklift was not registered or insured was given orally and in his road accident report by a police officer. The police officer said that he obtained that information from the forklift's owner, Ambogo Sawmill. There was no other evidence such as how or from whom he obtained the evidence from Ambogo Sawmill, whether a search was conducted at the Motor Traffic Registry and whether a certified extract of copies of relevant statutory records had been obtained. The respondent had denied and disputed the allegations concerning registration and insurance in its defence and statement of agreed and disputed facts and legal issues.

6. The appellant submits that the evidence as to registration and insurance given by the police officer was sufficient and relied upon the cases of Kumbe v. MVIL (2005) N2860, Wally v. MVIT (1992) N1028, Bepiwan Ambom v. MVIT (1992) N1116, Martin Kilte v. MVIT (1992) N1085 and Kongapi v. MVIT (1992) N1043. 

7. The respondent submitted that a plaintiff is required to strictly prove the registration and insurance status of a subject motor vehicle. This included conducting searches at and obtaining certificates from, the Motor Traffic Registry. The evidence given on behalf of the appellant showed that no such search was conducted and no such certificates were obtained.

8. The underlying facts which must be proved in such cases are that the motor vehicle involved in the accident was a motor vehicle insured under the Act, or was an uninsured motor vehicle in a public street, or that the motor vehicle cannot after due search and inquiry, be identified: Garo Kei v. MVIT [1992] PNGLR 195.

9. Further, in Bepiwan Ambom (supra), Brown J said as to the evidence required concerning registration, that a certificate or extract under s. 42 (2) Motor Traffic Act is required, but that, "…does not preclude… other evidence on the point, when no certificate or extract under ss. (2) of s. 42 of the Motor Traffic Act has been tendered." His Honour then went on to allow the police constable's oral evidence as to his search of the Motor Transport Registry, as secondary evidence of the details of the record under s. 42 (1) Motor Traffic Act.

10. In his later decision of Imambu Alo v. MVIT [1992] PNGLR 487, Brown J did not find in favour of the plaintiff when the evidence of the police officer apart from his accident report, was that he obtained details of registration and insurance from the driver of the subject vehicle, not from a search of the Motor Traffic Registry.

11. After a consideration of the various authorities cited by counsel, we agree with the approach adopted by Brown J as being appropriate to the circumstances existing in this jurisdiction especially outside of the main centres. Those circumstances in our view should not justify a reduction in the standard of evidence that is required, to the level permitted in decisions such as Martin Kilte v. MVIT (1992) N1085, where the tender of a police accident report and its content alone was considered sufficient proof as to registration and insurance.

12. In this instance, as the respondent had denied and disputed the allegations as to registration and insurance, the only evidence of registration and insurance was contained in the accident report and there was no evidence that the information in the accident report had been obtained from a search at the Motor Traffic Registry, we are satisfied that the trial judge was entitled to find that the statutory requirements of s. 54 (1) MVIT Act had not been proved on the balance of probabilities.

13. Given this finding, it is not necessary to consider the other submissions of counsel.

Orders

14. The orders of the Court are that:

a)	the appeal is dismissed,

b)	the appellant shall pay the respondent's costs of the appeal.

_____________________________________________
Office of the Public Solicitor: Lawyers for the Appellant 
Mirupasi Lawyers: Lawyers for the Respondent