N999

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL 28 OF 1991

DAN ALU AND AI WAL

V

MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen
Woods J
22 July 1991
19 August 1991

APPEAL - District Court - Motor Vehicle Accident - Damages claim - Whether due Enquiry and Search.

Counsel
P. Kopunye for the Appellant
A. Kandakasi for the Respondent

19 August 1991

WOODS J: This is an Appeal from an Order of the District Court at Mount Hagen dismissing a claim for damages for personal injuries.

The Appellants had claimed that on 4th or 12th December 1988 at Wara Ban Bridge, Nondugul Banz they were riding on a Mazda Utility when it overturned and they were injured.

In considering the claim while the magistrate found that if the incident happened as alleged then there must have been negligence in the drive he dismissed the claim on the basis that had been no due enquiry and search made to comply with claims against the Motor Vehicles Insurance Trust in accordance with the requirements of the Motor Vehicles (Third Party Insurance) Act Charter 295.

The Magistrate found from the evidence, and the depositions clearly confirm this that neither of the Complainants were able to identify the vehicle or the driver apart from suggesting it was a white Mazda. As they said "I am not sure of the vehicle I was travelling in". The only evidence which may go to identify the vehicle was the evidence of Paul Ombi who was not a victim nor present at the scene but was told about his relatives having an accident and he found the owner one Konvike. However, that is only vague belief and that is as far as it goes. He further stated that he knew the vehicle or the owner normally drives that road to carry passengers. However the evidence does not take that any further. In the circumstances a Motor Registry search would be easy or it would be easy to confirm from other people who knew the vehicle as to its positive identification and registration number. If it is as Paul Ombi said such a well known vehicle such evidence would have been easy to obtain. I also note from the statement of claim that the Plaintiffs were not even sure when the accident occurred. It therefore cannot be said that any real attempt has been made to ascertain the identity of the vehicle, of the owner, and of the driver.

It is a well known fact in Papua New Guinea that injured persons are very quick to identify motor vehicles which cause any kind of damage and to seek compensation. So I find it very hard to understand why such identification was not brought for this case.

The Appellants did agree that they had failed to bring the Police Accident Report to the attention of the Court when presenting the case although from evidence that was given it does not appear that the report would have assisted and it may have been merely compiled from what the police ware told by the victims and it may not have verified the vehicle. If it had why was not the driver subpoenaed to give evidence. However the Accident Report could not be admitted on the Appeal as it is not fresh evidence.

Whilst evidence of injuries received by themselves may not prove an accident happened they may go a long way to corroborate the fact of an accident. However in this case there are no contemporaneous medical reports to support the Appellants claim merely notes some months later referring to the Appellants reported to have been involved in a motor vehicle accident. This then goes to increase the unsatisfactory situation which raises doubts about what vehicle was involved and whether injuries were caused by such vehicle.

I am satisfied there was insufficient evidence before the Magistrate to satisfy him that s.54 of the Motor Vehicle (Third Party Insurance) Act had been complied with.

I therefore dismiss the Appeal.

Lawyer for the Plaintiff: Kopunye Lawyers
Lawyer for the Defendant: Young & Williams