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Moki v The State [1990] PGNC 3; N810 (12 February 1990)

Unreported National Court Decisions

N810

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. 416 OF 1986
REBECCA MOKI
V
THE STATE

Mount Hagen

Woods J
10-11 July 1989
5 December 1989
12 February 1990

NEGLIGENCE - Death - Fell from a moving vehicle - Liability - No fault in driver of vehicle.

Counsel:

Mr O’Connor for the Plaintiff

Mr Ninai for the Defendant

12 February 1990

WOODS J: This is a cfor damages by s by the wife of Levi Kuri on behalf of herself and her 2 children following the death of her husband caused by the negligent driving of a motor le owned by the State on 31st May, 1984.

The negligegligence alleged is that the vehicle suddenly bumped when the driver changed gear and the deceased was thrown from the tray of the motor vehicle. However at the trial the details of the negligence was amended to include that the vehicle stalled and travelled backwards and out of control when Levi Kuri jumped out of the vehicle and was run over.

The State denied there was any negligence on the part of the driver of the vehicle and asserted that the deceased caused his own death.

The Witnesses to the accident for the Plaintiff were Lynette Kaimo, David Gigmai and Upu Val who all gave evidence of being in the vehicle at the time of the incident. They each state that the engine of the vehicle cut out as it was going up a hill and the vehicle started reversing at which time the deceased jumped out. At that point the evidence diverges. Lynette states that the deceased jumped out into a ditch and the vehicle reversed over him and overturned and killed him yet she states that she stayed on the back of the vehicle. She gives no explanation of how she stayed on the back whilst it overturned and how she was not injured. The other two witnesses each state that the car reversed and overturned and they jumped off and ran away. Lynette gives no evidence of how they supposedly righted the vehicle or in what condition the deceased was at that stage and whether he died then or on the way to hospital. I note that Lynette was a school teacher.

The Witnesses for the State all give evidence of the vehicle going to a village apparently on a side road and according to 2 witnesses from the back of the vehicle the deceased stood up on the vehicle as it was going up a hill and apparently overbalanced and fell off. They then alerted the driver by banging on the cabin roof. This is confirmed by the driver and a passenger in the front who state that they were alerted by banging on the roof and they stopped the vehicle and got out and went back to where the deceased was lying. They brought him up to where the vehicle was, revived him with water and drove him to the Gembogl Health Centre. There he was regarded as so seriously injured that an ambulance took him to Kundiawa where he was found to be dead on arrival.

The Court is therefore faced with 2 conflicting stories and I must decide which is the correct one.

The Plaintiff’s witnesses refer to the vehicle running over or overturning onto the deceased. So obviously the medical evidence must be relevant here as it would show whether or not there are wounds or injuries consistent with being crushed. However, the medical evidence does not suggest that the victim was crushed by a vehicle either running over the deceased or overturning on him. Instead the medical report merely mention abrasions in the lumbar and the chest areas but no other skin injuries, no internal chest injuries consistent with crushing, the ribs were intact, the lungs were normal and no signs of any head injuries. The cause of death was a massive haemorrhage from the mascerated liver.

There is thus no injuries consistent with being crushed or run over by a vehicle.

There are further inconsistencies with the evidence of the witnesses for the Plaintiff. Lynette refers to staying on the vehicle and it overturning. There is no evidence of any injuries to herself or to anyone else when the vehicle overturned. Further, her presence at the scene and in the vehicle is disputed by the State witnesses. Her evidence does not give the complete story one would expect from a schoolteacher in such a situation. The other two witnesses are quite vague as to what happened as they ran away and again their very presence on the vehicle and at the scene is disputed by the State Witnesses.

There is no Police Accident Report which could confirm any story of an overturned vehicle crushing or running over a person.

A careful consideration of the evidence and the inconsistencies in the evidence for the Plaintiff and the Medical evidence leads me to conclude that the vehicle did not run over the deceased nor overturned on him. I must therefore conclude that the Deceased either jumped off or fell off the back of the vehicle.

The law is quite clear in the Motor Traffic Act and Regulations and commonsense would of course dictate accordingly that when riding on the back of a vehicle you must sit down within the body of the vehicle and you must not stand up nor move around on the back of a moving vehicle. The deceased was a School Teacher so he must be aware of the dangers associated with the careless use of a motor vehicle and if not aware of the exact wording of motor traffic regulations at least aware of the commonsense way of riding in or on vehicles. By standing up on the back of a moving vehicle he took a clearly dangerous step for which the driver of the vehicle should not and cannot be held liable. The deceased did the very act which led to his death and on the evidence before me I can find no fault in anybody else.

I dismiss the claim.

Lawyer for the Plaintiff: D L O’Connor

Lawyer for the Defendant: State Solicitor