DC7071
PAPUA NEW GUINEA.
[IN THE DISTRICT COURTS OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
DCC NO: 48 / 2021

IN THE MATTER BETWEEN:

1.	CHARLSE JASARI as next friend.
2.	GOLOTHA JOHN.
Complainant(s).
.
AND.
FRED OROSAMBO
Defendant.

Popondetta:	Michael W. Apie’e 

2021: November 11th.

CIVIL PROCEEDINGS. Action seeking damages for child injured in moto-vehicle accident. Vehicle with no third Party coverage, unregistered with no road worthiness certificate.

Cases Cited: 

References:
District Court Act.

Representation:
Mr. Charlse Jasari as next friend for Golotha John
Mr. Fred Orosambo in person.

JUDGMENT ON TRIAL
Background.

1.	The Complainant Mr. Charles Jasari appears as Complainant and also as next friend for the Second Complainant Golotha John a minor aged 7 years old at the time of the incident giving rise to this Claim.

2.	The Complainants filed suit and claimed in their Complaint of 29th of March 2021 that the Defendant had agreed to pay K5000.00 to the Second Defendant as Compensation for injuries and trauma sustained when the Defendants vehicle, a four Ton Truck that carts Oil Palm Fruits hit the child Golotha John and almost killed her on Wednesday the 28/10/20 at Poro village at Popondetta in the Ijivitari District of Northern Province.

3.	The Defendants Driver was supposed to have being Charged for the hit and Run accidents but due to negotiations between the parties, the Defendant verbally agreed to pay compensation if his driver could be released.

4.	The Driver is released, and the Defendant paid K1000.00 after allegedly promising to pay the balance of K4,000.00 later.

5.	The Summons is filed on the 29/03/21 after the Defendant allegedly failed to keep his promise to pay the K4000.00 additional amount to the Victim.

6.	This matter came before me on the 11th of June 2021 and one Ms. Rondy Jahari was called for the Complainants and after that one Constable Lionel Poreapa was called on the 14/07/21.

7.	The Defendant when asked to present his case opted to rely primarily on his Affidavit filed on the 05/05/21 and on that basis he closed the defense and submissions were called for 27/07/21.

8.	Submissions were filed as both sides on the 26/07/21 and so matter adjourned to 29/07/21 for Rebuttals and final submissions.

9.	On the 29/07/21 Rebuttals and Final Submissions are noted as follows;

Complainant: Charles Jasari.

i.	We must tell the truth only in Court, in this case, the Defendant made a Commitment to pay compensation and later broke that promise.

ii.	Defendant told lies in Court and so he ought to be penalized.

iii.	Ask for decision to be made and the Defendant ordered to fully pay the promised amount within 14 to 30 days.

Defendant: Fred Orosambo.

i.	This was an Accident.

ii.	There is no medical report submitted and or given to me to not only sustain the claim but to guide the parties in the amount to be paid as compensation.

iii.	Defendants business sustained business loss and that ought to be covered by the Complainants. (At a minimum, to be considered by the Court.)

10.	Observations /Assessments. Having heard the evidence in this trial I make the following observations and assessments;

Medical Status:

i.	The Claim is for breach of Promise and not a Quantified Claim for Damages such as for Assessment for injuries sustained or Functional Loss compensation based on a medical report or assessment.

ii.	There is an Interim medical report dated 18/11/20 by Dr. B. Moi Seneka produced or provided to the court to verify the injuries sustained or inflicted giving rise to the negotiations culminating in the ‘so-called’ agreement between the Parties.

iii.	The Doctor noted that the Child was unconscious on arrival, bleeding from her left ear, her eye pupils had been pinpointed, both sides sluggish to light suggestive of Cerebral Oedema from potential basal skull fracture. She was treated and released after she more or less recovered/bounced back. That is how serious the first impression of the doctor was, and as they say ‘one millimeter to the right or left, and it would have been a different story!’

iv.	Having sighted this Interim Medical Report itself, and reading the attached statements on file, I am inclined to infer or opine that the victim was rather dragged or thrown down by the Draught /Turbulence of the 4 ton truck passing close to her at speed as opposed to her being actually bumped with the bumper of a big truck, as that would have most definitely resulted in her being killed instantly.

v.	Unfortunately, here is no follow-up medical report to assist the court in assessing if there are lingering issues to better adjudicate on this matter.

vi.	No Evidence being led on whether or not MVIL Claims have been pursued for an on behalf of the Victim child.

Status of Vehicle:

vii.	The Status of the Motor vehicle is unknown as to whether it was registered and had third Party insurance cover as well as road worthiness certificate being affixed on it at the time of this accident.

viii.	The Contention from the Complainants is that the vehicle in question was un-registered, un-insure and not road worthy at the time of the accident.

Negotiations/Agreement(?):

ix.	Complainants witness Rondy Jahari gave an account of negotiations wherein different amounts were suggested and refused such as a claim for K20,000.00 being made by the Complainants, the Defendant offering K1000.00 or K3000.00, and the Police said K5000.00.

x.	She reported that the Defendant then paid K1000.00 with a promised to pay the balance later during Christmas or thereabouts, but he did not.

xi.	Constable Lionel Poreapa gave an account of the Parties haggling over the amount as K20,000.00 claim from the Complainants, and an offer of K1000.00 from the Defendant and him informing them that in Motor Vehicle Deaths, the Comprehensive cover is normally up to K5000.00 for deaths.

xii.	He said that he informed them that since this accident was a minor accident the driver need not be charged and they could resolve outside of court and they settled on K5000.00 so on that basis the Driver was released after the K1000.00 Payment, with more to follow later.

xiii.	It is clear, the parties might have agreed or not agreed on the total of K5000.00 as being the settlement amount.

xiv.	ISSUE(s)

a.	Did the parties enter into a legally binding Agreement?

b.	Is the Defendant obligated to pay anything further on top of the K1000.00 already paid?

11.	In answer to the issues raised immediately above, the court notes as follows;

i.	The Defendant was given the option of his driver being arrested or him paying some compensation, and he chose the latter to have his driver released and he pay some compensation to the victim.

ii.	The Driver could have been charged with a number of Traffic offences like Reckless or Dangerous Driving, driving of uninsured and unregistered motor vehicle and driving of un-roadworthy vehicle on public roads.

iii.	The Police Informant aided this by saying that the accident was minor and so he encouraged out of court settlement between the parties.

iv.	The Defendant paid K1000.00 up-front with supposedly more to follow either K2000.00 if the agreement was K3000.00 total or K4000.00 if the agreement was for K5000.00.

v.	There already is an agreement in place and the Defendant was bound to honor that agreement if he had willingly entered into such.

vi.	The Defendant also has the option of relying on MVIL to cover whatever claim made against his vehicle if such vehicle had insurance cover.

vii.	If such vehicle had no Third Party insurance cover let alone current registration, then what was it doing on Public Highways and byways?

viii.	Since there is no evidence of the current Registrations and the insurance status of the vehicle, does this court take it that this vehicle was unregistered and uninsured on a public Road on the on Wednesday the 28/10/20 at Poro village at Popondetta in the Ijivitari District of Northern Province?

ix.	Regarding the issue of whether Defendant is obligated to pay anything on the Agreement? People must always be logical and reasonable in their claims for instance;

a.	The Claim of K20,000 initially made to the Defendant was unreasonable and unjustified given the minor nature of the case.

b.	K3000 to K5000 in the circumstance of the case given the minor nature of this case could be said to been reasonable given the minor status as stated by the Police Informant.

c.	The Child was present in court on occasions and was observed to be healthy boisterous and seems to have fully recovered from her Ordeal with no lingering issues.

d.	The Second Issue, after paying the K1000, should the Defendant pay more and if so on what basis?

e.	 This Court is of the Opinion that the Truck most probably did not impact the child but rather that only the draught or turbulence of the passing truck dragged the child down as if the truck came into contact with the child, she would have been most certainly killed on the spot.

f.	The Defendants Offending vehicle was most probably Unregistered and Uninsured with no Road worthiness certificate attached and so for all intents and purposes should not have being on a public highway or byway in the first place.

g.	At a minimum, the Defendant is liable to pay compensation for allowing this vehicle to be on the road in the first place, regardless of whether on nor there is an agreement for K3000, K5000 or K20000.

h.	Damages that can be awarded against persons in various categories in civil cases and in some instances Punitive or Exemplary damages can be awarded to remind or penalize people for any errors they might have allowed to happen such as allowing an uninsured and unregistered vehicle on the road in the first instance.

i.	Either the Defendant pays or his driver be made to be rearrested given that the Police released him in favor of out of court settlement in the first place.

j.	The K1000.00 claimed to have being paid, including the K550 paid to facilitate hospital requirements are noted.

12.	In the final Analysis, the Court finds and Rules as follows that;

i.	On the basis of the Evidence presented the Defendant is found to have entered into a binding agreement to have his driver released in favour of compensation(s) be paid to the victim.

ii.	However, in all the circumstance of the case, given the minor nature of the accident and the obvious full recovery of the child, this court adjudges that K3000 would be a reasonable amount to levy against the Driver and Owner of the Offending vehicle to pay to the Victim as compensation for the minor injuries and trauma she sustained after all the scare.

iii.	The Defendant is also further adjudged to be liable to be imposed with punitive and exemplary damages of a further K2000.00 for continuing to allow an Unregister and uninsured vehicle on a public Road. As they say, Wrong doing does not pay!

iv.	And this Un-Registered and Un-insured vehicle was utilized for commercial purposes carting oil palm fruits for the Higaturu Oil Palm Company.

v.	The K1550.00 already paid to the Complainant will be deducted.

13.	Accordingly, the Court will order as follows;

i.	The Defendant is found liable and ordered to settle the outstanding total damages of K3450.00 within 40 days from the date of this Order.

ii.	Eight percent interest adjudged at K108.00 from the date of filing on 29/03/21 to today.

iii.	Cost of K3.00

iv.	The Defendant is to settle a total of K3558.00 within 40 days no later than Sunday the 03/10/21

v.	In Default, Enforcement Proceedings to ensue against the Defendant.

Charlse Jasari as next friend for the Complainant.

Defendant in Person.