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Motor Vehicles Insurance (PNG) Trust v Kuman [1991] PGNC 17; N985 (28 June 1991)

Unreported National Court Decisions

N985

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 23 OF 1991
MOTOR VEHICLES INSURANCE (PNG) TRUST
V
TUA KUMAN

Mount Hagen

Woods J
22 May 1991
28 June 1991

NEGLIGENCE - Motor Vehicle Accident - Liability - Pig carried on back of utility - Passenger gets up to attend to pig and falls over - Carrying of pig common cause between driver and passenger.

APPEAL FROM DISTRICT COURT - Assessment of costs in District Court.

Cases Cited

Kopele v Motor Vehicles Insurance (PNG) Trust & Ors [1983] PNGLR 223.

McEnroe v Mou [1981] PNGLR 222.

Rebecca Moki v The State (Unreported judgment No N 810).

Counsel

A Kandakasi, for the appellant.

P Kopunye, for the respondent.

1 July 1991

WOODS J: This is an appeal st the Othe Orders of District Court at Mount Hagen made on 18 February 1991 whereby the court ordered judgment for the complainn the sum of K2,957.00 plus costs of K714.60.

The matter was a Personal Injuries Clas Claim following an incident involving a passenger on the back of a motor vehicle on 8 November 1987 on the Jimi to Banz road. The claimant was a passenger riding in the back tray of a motor vehicle driven by Michael Bol Keide. Michael and the claimant, who was his sister, apparently wanted to take a pig somewhere, so they arranged to borrow a vehicle. Michael drove it and the complainant rode on the back with the pig. During the journey the pig was causing trouble in the back and the complainant got up and tried to hold it but she fell down and injured herself. She was taken to Kudjip Hospital for treatment.

The Magistrate found liability against the driver although found that the claimant was herself thirty per cent contributory negligent.

On liability the Trust submits that the claimant caused the injuries to herself by her actions in getting up from her sitting position in the back. The Trust submits the driver was driving carefully and cannot be liable for the actions of the claimant in the back. The appellant submits the facts here are similar to those in the case of Rebecca Moki v The State (Unreported judgment No N 810) and the Magistrate thereby erred in distinguishing that case. However I agree that Rebecca Moki’s case can be distinguished on the basis that in that case the deceased’s acts were purely his own action whereas in this case now the claimant was doing something which was clearly within the knowledge and responsibility of the driver. I refer to the case Kopele v Motor Vehicles Insurance (PNG) Trust & Ors [1983] PNGLR 223. A driver of a vehicle must accept responsibility for how a vehicle is loaded and in this case the driver allowed a pig to be carried in the back with the passengers so he bears some responsibility for how it was so carried. Therefore if it was carried in such a manner that it could move around and cause concern to the passengers that is his responsibility. However in this case as the driver and the complainant were together in a common cause in carrying this pig, the liability is not solely on the driver but obviously must be shared. So on the basis that it was a common cause in creating this possibly dangerous situation the liability should be shared 50 per cent each. The Magistrate did not note the common cause between the claimant and the driver over the carrying of the pig so his apportionment is in error.

On the assessment of damages the appellant is not claiming any error so it is only a matter of a re-apportionment of the liability.

The Magistrate’s assessment before apportionment was K3,145, therefore allowing for 50 per cent contributory negligence, the judgment should be for K1,572.50.

ON COSTS

The appellant is also appealing against the costs as Taxed. He is appealing against the costs allowed under Items 5 and 7 of Sch 4, Item 3 of Sch 5, and Items 1 and 3 of Sch 3 of the District Courts Act (Ch No 40). The appellant does not dispute the costs under Items 1, 2 and 6 of Sch 4.

Costs in civil cases before the District Court must be just and reasonable and must not exceed the amounts set forth in the Schedule: see McEnroe v Mou [1981] PNGLR 222 at. 227.

The costs in Sch 4, Item 5 is for three adjournments, totalling K102. This item allows for costs for any application for an adjournment where the court at the time especially allows the adjournment. However, such costs must be sought for and allowed at the time and such would of course depend on which party sought the adjournment and the reasons for the adjournment. The court file shows that no specific orders for costs were sought at the time of the adjournments and no order for costs were made. Further it appears that the adjournments were for various reasons, for example, on 20 July 1990, the plaintiff sought the adjournment. Also that return date was only three weeks from the date of the issue of the complaint which is a quite unreasonable time by which to have a mention of this type of case, so how could costs be even considered for the adjournment? The next mention was on 9th August when the complainant sought a further adjournment. No reason is given at the mention on 30 August 1990 nor on 17 October 1990 and at later adjournments. I note that on some of the later mentions both parties were represented before the Magistrate. I allow the appeal against the costs, Sch 4, Item 5.

Item 7 of Sch 4 suggests that the case went on for three days of hearing. However the deposition and work-sheets suggest the case only involved four witnesses and took one day - 16 January 1991. I therefore must disallow the figure of K168 for the two further days.

Item 3 of Schedule 5 is the costs of bringing the complainant and witnesses. Whilst the schedule allows for the amount actually and properly paid for fares both in going to and returning from the court or alternatively for an amount per kilometre where a witness drives a private vehicle and for attendance expenses related to the witnesses salary, there is no evidence of what was the fare or how the amount is calculated. Instead the bare maximum of K85 each is claimed. Such a claim must be supported by reference to the wages earned and lost and by the expenses incurred. It was a one-day hearing with, according to the depositions, four witnesses. In the absence of any evidence I will allow for K10 for each witness. Therefore the amount for the item should be no more than K40.

Item 3 of Sch 3 is for service of summons at Port Moresby but the figure of K85 is unsupported. Presumably this is the agent’s fee for service or was it served through the post? Without any evidence to support how the service was effected, I would allow a figure of K6.