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Sam v Motor Vehicles Insurance (PNG) Trust [1991] PGNC 27; N1022 (20 December 1991)

Unreported National Court Decisions

N1022

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 1119 OF 1989
MARIA SAM
V
MOTOR VEHICLES INSURANCE (PNG) TRUST

Mount Hagen

Woods J
21 October 1991
18-19 November 1991
20 December 1991

NEGLIGENCE - Liability - Collission between 2 motor vehicle - overladen vehicle - contributory negligence.

DAMAGES - Death - Dependency Claim - Widow and children.

Counsel

D L O’Connor for the Plaintiff

A Kandakasi for the Defendant.

20 December 1991

WOODS J: The Plaintiff is the wof o of one Same Kelaga who was killed when the motor vehicle he was riding on collided with another vehicle on he Highlands Highway through Goroka on the 3rd J989. The vehicle the deceased was on was a Mazda 1600 UtiliUtility registered No AFO 681 driven by Daniel Baiwa and the other vehicle was a Toyota Truck registered No ACS 625 driven by Takum Tolikuan. The Plaintiff is claiming damages on behalf of herself and her children and alleges that the deceased was killed through the negligence of both drivers. The claim is brought against the Motor Vehicles Insurance (PNG) Trust as the insurer of both motor vehicles and the Trust is denying liability.

The Trust first submits that the Plaintiff has not properly proved the identity of the vehicle or vehicles against which the Plaintiff is claiming. Counsel for the Defendant submits that the Road Accident Report is not sufficient, it is only hearsay, it does not prove the ownership and registration and insurance details of the vehicle.

However the Road Accident Report is prepared by a Police Officer from his own investigation and clearly details of the Registration No, Insurance Certificate No, and expiry dates of the Registration is information which must be obtainable from Police held records. So I am satisfied that there is sufficient evidence of the identity of the vehicles and the relevant insurance. Further the Defendant Trust never filed a Defence to the Writ of Summons so must be deemed to have accepted the role of the Trust as alleged in the statement of Claim.

The Plaintiff called only one witness to the circumstances of the accident namely Maria Dama who was a passenger with the deceased on the Mazda 1600 and she merely confirms that when they came to a corner there was a vehicle stopped on the road and then another vehicle bumped them. She confirmed there were a number of people on the Utility. The Police Report compiled by an officer who attended the scene shortly after the accident suggests that the Mazda 1600 was overtaking another vehicle on a corner when it was struck head on by a vehicle coming the other way. The report shows there were 16 people injured and killed in the accident and they all came from the Mazda 1600 and that 16 does not include the driver. That number of injured clearly suggests that the Mazda was overloaded even considering that from the details of the 16, 12 were adults and 4 were young children. From the Police Report it appears that the blame for the accident falls clearly at the driver of the Mazda 1600.

However, the lawyer for the Trust submits the overloading of the vehicle means that there must be some blame on the passengers. The law clearly limits the number of passengers allowed to ride on vehicles and with Utilities it is 8 in the back. And the driver must not be held totally responsible for this overloading as it was a private vehicle and not a PMV and from the evidence it appears be taking people who knew each other from a similar area so it could be regarded as a Joint-enterprise by the driver and passengers. Further the deceased was a School teacher so can be assumed to have knowledge of and regard to road safety and road sense.

I am satisfied that the vehicle was overladen and from my own personal knowledge when a utility is fully laden or even marginally overladen its handling and performance is affected and a driver has to exercise great care in the handling of the vehicle.

It can be argued that in fact in Papua New Guinea it is an everyday occurrence for people to ride in the back of utilities and that police do not enforce the rules about the loading and safety of vehicles and therefore the authorities sanction the use of utilities for passengers and the overloading therefore there can be no negligence in something sanctioned by the law. However I do not regard that as sanctioning unsafe driving practices. People must be expected to know the law and safe driving habits and if they do not follow the law and safe driving habits they could be found to be responsible for their acts or behaviour. In the circumstances of this case, a group village activity involving a private vehicle and the deceased being a school teacher I find that the deceased must be held partly responsible for his own death by reason of his contribution to the overloading which must affect the driver’s ability to properly manage the vehicle. I find the deceased share of the negligence to be at 25%.

ON DAMAGES:

The deceased was a community school teacher aged 25 years at the date of his death. The Plaintiff was aged about 21 years at the time of his death. She had 2 children from the marriage. Maggie born 17 February 1985 and Terry born 16 September 1987. The Plaintiff is also claiming on behalf of a child born from another relationship. He had borne a child Sine shortly before the accident from a relationship with another school teacher Ellen Apisi. Although apparently the Plaintiff only found out about this relationship after her husbands death. The Plaintiff produced the infant Sine in Court and says that Sine sometimes stays with her and sometimes with her natural mother.

The deceased earned K169.22 net per fortnight as a school teacher and had been working as a school teacher for 2 years. Whilst the lawyer for the Trust submits the deceased had only just started teaching and could have been terminated at any time, I am satisfied he was in an employment which he could have kept for the rest of his working life, namely another 30 years. I would assess the benefits to the wife and children at K20 per week to the wife and K10 per week for each of the children. The widows dependency is for 30 years subject to contingencies for early death or remarriage and with only 2 children I assess this at 20 percent.

As the children are children of a school teacher I will find that they would have continued with their education till at least 18 years so I allow for their dependency till they attain 18 years of age. I will allow no deduction for contingencies for these children as I am satisfied that these children will survive to adulthood being in a family which has a marginally higher standard of living that basic rural subsistence.

As the Plaintiff was entitled to the funds from the date of issue of the writ I will allow interest at 8% from 30 August 1989 to today.

Damages are assessed as follows:-