Can a Passenger Riding on the Back of a Truck Claim?

Travelling on the tray of a utility or the back of a truck is how a large part of the country moves. When the vehicle overturns, the passengers are the ones hurt, and MVIL’s first argument is almost always that they accepted the risk.

The Supreme Court’s answer: Tabanto

In Motor Vehicles Insurance (PNG) Trust v Tabanto [1995] PGSC 16; [1995] PNGLR 214 a teacher was injured riding in the back tray of a Toyota Dyna truck that had no PMV licence. The Trust argued that riding in such a vehicle was contributory negligence in itself. The Supreme Court disagreed, and its reasoning has governed the point since:

The Court was recognising a reality: in much of the country there is no other transport, and to hold every tray passenger automatically at fault would defeat the purpose of the scheme. What follows is a spectrum of cases in which the passenger’s knowledge of a particular danger, not the mere fact of riding in the back, determined the result.

Where damages were reduced

• Overcrowding. In Kopele v MVIT [1983] PGLawRp 505; [1983] PNGLR 223 a passenger on a truck so overcrowded that he fell from it was 50 per cent at fault; the driver, who allowed the overcrowding, bore 30 per cent and the police who let the truck proceed 20 per cent. In Saka v MVIL [2025] PGNC 486; N11642 passengers who knowingly boarded an overloaded private vehicle were held contributorily negligent.
• No seats. In Wally v MVIT [1992] PGNC 3; N1029 the plaintiff sat on an unstable object in the back of a vehicle with no passenger seats: 50 per cent. In Koli v MVIT [1997] PGNC 188; [1997] PNGLR 343 the court said “a degree of responsibility must be placed on people who accept to sit at the back of open back vehicles without proper fixed seats”, though the woman with a fractured arm still recovered K10,000 general damages plus economic loss.
• Unregistered and uninsured. Waima v MVIT [1992] PGLawRp 598; [1992] PNGLR 254 (“people must accept some responsibility for accepting rides on vehicles that are unregistered and uninsured”) and Pyakalo v MVIT [1992] PGNC 32; N1092, where an unregistered, uninsured and overloaded vehicle produced a 75 per cent reduction.
• Standing up or moving about. MVIT v Kuman [1991] PGNC 17; N985: a passenger who stood to attend to a pig on a moving utility, 50 per cent.
• Riding in a towed vehicle. Yomo v The State and MVIT [1990] PGLawRp 315; [1990] PNGLR 554: a vehicle under tow “is not properly serviceable and is under limited control”, so the passenger was 50 per cent at fault.

Where there was no reduction

In Tabanto itself the trial judge’s finding of no contributory negligence stood. In Pagau v MVIT [1992] PGLawRp 599; [1992] PNGLR 26 the Trust alleged overloading of a PMV bus that went over a cliff; the court found “there was no overloading and, therefore, no contributing negligence”. In Tommy v MVIT [1991] PGNC 26; N1023 a village man with fractures to both legs from an overturned, overcrowded vehicle recovered a global K25,000 without apparent reduction. The passenger who has no reasonable alternative, boards a vehicle that appears roadworthy and properly loaded, and sits where he is told, is not at fault when the driver then drives badly.

The owner’s share of the blame

The cases also place responsibility on the owner who uses a vehicle not designed for passengers to carry them. Wally held that the owner “must be partly responsible for the accident by using a vehicle not designed for the transport of passengers”; Kopele attributed 30 per cent to the driver for allowing overcrowding. Because the third party cover insures the owner as well as the driver, that share of fault is also MVIL’s to pay. The passenger’s contributory negligence reduces the damages; the owner’s negligence does not reduce them, it grounds them.

Fare-paying PMV passengers

A passenger who pays a fare on a licensed PMV is in the strongest position. The driver owes a heightened duty (Paraka v MVIT [1992] PGNC 11; N1041), section 62 of the Act voids any term of the contract of carriage purporting to exclude or restrict liability, and there is nothing inherently negligent in taking the only public transport available. Where a PMV is overloaded, the operator, not the passenger, has usually been held responsible, although a passenger who chooses to ride on the roof or the tailboard when seats are available will have difficulty.