Unreported National Court Decisions
N980
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 460 OF 1988
SINOWA
V
MOTOR VEHICLES INSURANCE TRUST
Mount Hagen
Woods J
19 March 1991
4 June 1991
NEGLIGENCE - Motor Vehicle Accident - Passenger on back alighting when vehicle drove off - Liability - No proof of negligence.
Cases Cited
Pyayakon Yomo v The State and M.V.I.T. N812
Counsel
P Kopunye for Plaintiff
R Thompson for Defendant.
4 June 1991
WOODS J: The Plaintiff is claiming damages for injuries received when she fell off a motor vehicle onto the roadway such being caused by the negligent driving of the motor vehicle.  The motor vehicle was a Datsun 1600 Registration No ADY 805 driven by Tom Sevelove.
The Plaintiff's story is that she was riding as a passenger on the back of the motor vehicle from Banz to Kudjip.  At Kudjip she was in the act of alighting from the vehicle when the driver drove off before she had fully alighted and she was thrown to the roadway and suffered injuries to her shoulder.
Whilst in her story she states she was taken to Mount Hagen General Hospital that day following the accident she has produced no evidence that she sought or obtained any medical attention that day.  The first evidence of any medical attention sought was the Report from Dr Seta from Mt Hagen General Hospital which noted that she said she was involved in a motor vehicle accident on the 28th November 1986.  "However she did not seek any medical attention till the first week of January 1987.  At this visit she was found to have a dislocated right shoulder".  The Doctor goes on to say "close reduction was attempted on two occasions with no avail.  This was expected as she presented very late".
Initially therefore the medical evidence does not support her involvement in any particular accident on 28th November, 1986, it is only a hearsay reference.
There is a Police Road Accident Report of an accident involving the Plaintiff and the said motor vehicle although this report appears to have been compiled 2 months later.  There was no attempt by the Plaintiff to bring evidence to explain this delay.  The Police report seems to be based completely on what a police officer was told 2 months later so it is an unreliable report.  I refer to the case Pyayakan Yomo v The State and M.V.I.T. N812 where the Plaintiff went to great lengths to obtain the policeman who completed the Report in that case to explain the errors and omissions in that Report.  The Police Accident Report here gives a different version of how the Plaintiff fell off to the version given by the Plaintiff in Court.
The Plaintiff's story is that the motor vehicle picked her and some others up at Banz although it was not registered to operate as a PMV.  She cannot say how many people were on the back.  When it arrived at Kudjip everyone got out of the back and she suggests that after everyone had got out she was getting out on the offside when the driver drove off.  She said she had one foot on the ground and the other on the vehicle and was still holding onto the side of the utility back.  The jerk of the vehicle moving off threw her onto the ground.  However the Plaintiff also states that while the vehicle was stopped at Kudjip the driver had got out and checked the people getting off.  So the driver had done what any careful driver would do, got out and checked his passengers off and then supposedly satisfied that all who wanted to get off had done so he then got in and drove away.  So can one assume that if he had so got out and checked and then got back in that must have given plenty of time for everyone who wanted to get off to do so.  Why was the Plaintiff so slow and late in getting off.  She provides no explanation.  So was the driver negligent, it seems he took the precaution that any driver with passengers in the utility back would take, namely he got out and checked.
The Plaintiff brought witnesses to support her story.  Whilst both Nol and Joe give the same basic story that when the Plaintiff wanted to get off and put one foot on the ground the driver drove off and she fell to the ground, neither of them give any explanation as to how she happened to be last off and why she took so long when the driver himself got out of the cab and came and checked the back.
Whilst this is an action provided for under the law against the compulsory Third Party Insurer such insurance is not a no fault liability protection.  This compulsory insurance ensures that the victim of negligent driving would not go empty handed because the defendant lacked the financial resources to meet the obligation.  It helps the system of claims for negligent driving work but it does not change the system itself.  Therefore there must be some element of negligence or some way one can assume some negligence.
However has the Plaintiff proved negligence here.  There are so many conflicts in the evidence that I am not satisfied that there is any negligence at all in the driver of the vehicle supposing she was even on the vehicle.  By the evidence he had stopped and got out and checked the back of the vehicle before getting back in and driving off.  Even if her story is true that she was on the vehicle then and got off after everyone else it appears as if she must have led the driver to believe she was not getting off and then changed her mind.  And then the 2 pieces of evidence one normally has to support such a case are not here or conflict, namely the Police road Accident Report and the medical evidence.
The Police Report which appears to have been compiled some 2 months later actually contradicts the Plaintiff's version and implies no negligence in the driver at all.  Then there is no evidence of seeking medical attention immediately after the accident only talk of going to the hospital but no evidence till an attendance 2 months later.
So even if she was on the vehicle that day alleged I am not satisfied that if she fell as alleged that the incident was caused by the negligent driving of the driver of the vehicle.  There are too many conflicts and gaps to make out a case of negligence.  I dismiss the Plaintiff's claim and find for the Defendant.
Lawyer for the Plaintiff: Kopunye Lawyers
Lawyer for the Defendant: Young & Williams