DC260

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 480 OF 2002

BETWEEN

Nick Rueben
Complainant

V

Leo Sambo
First Defendant

Agriculture Bank of Papua New Guinea
Second Defendant

Goroka: Manue F. – Magistrate
2002: 25th September, 10th October

Reasons for Judgment

MANUE F: This is an action for Driving Negligently on 23rd November 2001 at Kainantu against the first defendant who is an employee of the second defendant.

The Complainant claims K4,622.52.

Did the failure of the first defendant to keep a proper look out or control the vehicle or failing to give way or failing to steer or control the motor vehicle to avoid the accident caused the accident? 

FACTS:

There is some difficulty in me concluding as to which way the defendants’ vehicle (vehicle one) was travelling when the collision occurred with the other vehicle (vehicle two) which no doubt was travelling from Goroka inbound Kainantu. To come to the right conclusion, lets visit the whole of the evidence.

The Complainant and his witnesses, including the Police accident report say and show that vehicle 2 was travelling from Goroka inbound Kainantu, while vehicle 1 was going to drive or was driving onto the main Okuk Highway from the left side of vehicle 2.

The defendant however, stated in his statement and on a Statutory Declaration, earlier made and tendered that he was travelling out of the hospital road onto the main Okuk Highway. His vehicle was on the right of vehicle 2.

And yet the witness of the defendant gave a different version in his evidence. He stated that vehicle one was driving on the main Okuk Highway and was going to drive into another road on the right which leads to Police Station.

All these witnesses stated that vehicle 2 had his right hand signal on with an intention of turning right.

In further examining the whole of the evidence there were clues which made me infer that vehicle 2 was travelling on the main Okuk Highway from Goroka into Kainantu town, while vehicle 1 was travelling on the main Okuk Highway into Goroka and was turning or going to turn right into Kainantu town road leading to the Police Station.

In re – visiting the evidence these are instances which gave me the clues and concluded accordingly.

The defendant in his first cross examination question asked;

Q "How did I come (drive) when you (your car) bumped me?" (my car)
A "You drove out and stopped on the road on my lane".

Hence, if the collision occurred in the position disrupted by this piece of evidence, then dents or damages would have been obvious on the left side of the defendants vehicle, and on the Complainant’s vehicle would have been on the frontal area. One can now see the difficulty.

The defendants’ version must be the first to be disregarded. This must be so, because, the Complainant’s witness could not have possibly seen the blinking signal on the right from his left side.

The defendants witness and himself would be the only ones who saw the right signals of vehicle one blinking. It could have been quite impossible to see vehicle 1 rights signal blinking from the left where vehicle 2 and its witnesses were. The right hand signal of the red Hilux must have been in a position where all the witnesses must have been blinking.

Secondly the point of impact was on the main Okuk Highway according to the complainant and the defendants witness. And so, if the impact were on Okuk Highway, then the impact arrears of the vehicle would have been on the left side of vehicle 1 and frontal area of vehicle 2.

Unfortunately that kind of evidence was not orally available from the complainant and his witness or from the defence.

In the last three questions by the Court and answers of the defence witness he states that:-

Q Did you see some damages on the Hilux?
A Yes
Q What part of Hilux?
A Bumper Area, it dented in.
Q Which direction was Hilux travelling before trying to turn in right?
A It was travelling towards Goroka way.

As stated earlier, the red Hilux must have been in a position where all the witness must have seen blinking high signals.

There are two possible places, one position would be that the red Hilux was on the main Okuk Highway, travelling out of Kainantu and trying to turn right, at the said ‘T’ junction or driving out of the road from the Police Station onto the main Okuk Highway and trying to turn right to Goroka.

I think the most appropriate position would be that the red Hilux was travelling on the main Okuk Highway out of Kainantu and was attempting to turn into Police Station road into Kainantu when the accident occurred. This position is confirmed by the defence witness on his inspections of the red Hilux, and as paraphrased earlier.

The quotes taken also indicate the point of impact on vehicle two. The quote states that, the right lamps were damaged and there were dents on the right of vehicle 2 bumper.

Secondly the defence witness stopped on the left side where there is a bus stop to drop off passengers. He was able to see the right signal from there. I think the right side of vehicle 2 had some damage, when he was trying to sway it to the left to possibly avoid server collision and damage.

I do not think the red Hilux was stationary on the left lane of vehicle 2. It probably had its nose on the left lane, otherwise, dents would have been noticed on the left part of vehicle one. There was no evidence to that effect.

Having discussed and clarify the fact as to the positions of the two vehicles, it is now much easier to conclude whether the driver of vehicle one was negligent as particularized.

CONCLUSION:

The facts are that vehicle one was travelling on the Okuk Highway from the Kainantu Shopping Centre towards Goroka and was attempting to drive into a road to the right.

The complainant was driving his vehicle 2 from Goroka.

From Goroka direction, there is a corner and it is some 100 – 150 meters to the road which vehicle 1 was attempting to drive into.

There was no traffic at that point in time and the road was very clear.

The Complainant stated that vehicle one was stationary on his lane (the left lane) when the collision occurred.

The defence had no explanation of that. I presume that when vehicle one saw vehicle 2 approaching from the corner, he probably did stop to give way, but probably, when vehicle 2 was travelling slowly, he attempted to take off on high gear resulting in the engine cutting off and consequently the accident.

In the circumstances I find that the defendant one drove negligently as particularized in the complaint.

DAMAGES:

The Complainant, initially quoted for an average of K1425.00 and he quote for the right lamp at K3072.5 – a total of K4,497.00.

He attempted to have defendants pay only K700.00 but the attempts failed.

He then went ahead to do the repairs himself after getting two other quotes in September for a total of K2,221.12. These quotes are however unaccompanied with receipts.

I would therefore not base my judgement on them.

There also has been some time since the accident and the quotes may have been for other problems unrelated to the accident.

I would award costs except for transport as no receipts of fuel spending is attached. Further to that, the complainant had a cheaper means to use such as the Public Motor vehicles, in coming to Court.

Compensation for hardship is not considered as there is no evidence of what hardships were encountered due to the accident damaging the vehicle.

I am of the view that defendant (1) should also bear some responsibility on paying damages. He is to pay one quarter (1/4) of the total awarded damages and defendant two to bear three quarter (3/4).

ORDER:

I award damages in this manner:-

Damages	K4,497.00	
Costs	K318.60	
Interest at 10%	K481.56	
Total	K5,297.16	
Defendant one is to pay	K1,324.29	
Defendant two is to pay	K3,972.87	

Payments to be made within four (4) months, in default redress.

In Person: Complainant
In Person: Defendant