What Standard of Driving Does the Law Expect?

Negligence is the failure to take the care a reasonable driver would take. In motor accident cases the courts have refined that general idea into a set of expectations that recur in the Papua New Guinea judgments.

The objective standard: Brown v MVIT

The foundation is Brown v Motor Vehicles Insurance (PNG) Trust [1980] PGLawRp 610; [1980] PNGLR 409. Adopting the English decision in Nettleship v Weston, the National Court held that the standard of care “is an objective one, measured by the standard of a skilled, experienced and objective driver”. It “makes no difference if the driver is drunk, deaf, one-eyed or inexperienced”, and “it makes no difference to the duty of care owed to passengers, if a passenger knows the driver to be drunk”. The passenger’s knowledge goes to contributory negligence under the Wrongs Act, not to the existence or content of the duty. A learner on a permit, an unlicensed relative (Elewai v MVIT [1992] PGLawRp 615; [1992] PNGLR 34) or a drunk friend is judged as if he were a competent professional.

PMV drivers

Drivers licensed to carry fare-paying passengers are held to what that responsibility requires. In Paraka v Motor Vehicle Insurance Trust [1992] PGNC 11; N1041 the court said “a higher standard of driving” is expected of a PMV driver. In Sos v MVIT [1995] PGLawRp 691; [1995] PNGLR 249 an eleven-year-old fell from the back of a speeding PMV: “there is an onus on the drivers of vehicles licensed to carry fare paying passengers to travel with due regard to the safety of the passengers”, although the accompanying adult shared responsibility for the child. A PMV crew member or owner-driver killed when his own bus goes over a cliff, as in Pagau v MVIT [1992] PGLawRp 599; [1992] PNGLR 26, is judged by the same standard when the question is whether he was at fault.

Roads, weather and crowds

The standard adapts to conditions. “If an earth road is in bad condition and there has been recent rain, there is a greater onus on the driver to take care”: Waine v MVIT [1993] PGLawRp 551; [1993] PNGLR 446. “The act of driving a vehicle too fast in the vicinity of a crowd is an indication of negligent driving”: David v MVIT [1993] PGLawRp 535; [1993] PNGLR 356, where the plaintiff was part of a large crowd beside the road. A driver crossing a playing field must expect people to be on it (Kumbe v MVIL [2005] PGNC 110; N2860). A driver of a truck coming down a hill towards road workers must anticipate them (Wamel v MVIT [1991] PGNC 22; N1002).

Unexplained rollovers: res ipsa loquitur

Many Highlands Highway cases involve a vehicle that simply left the road and overturned. Where there is no explanation consistent with careful driving, the courts infer negligence. In Ambom v MVIT [1992] PGNC 37; N1116 (“vehicle rolled over — res ipsa loquitur — no real explanation for accident”) a woman lost her arm and recovered K35,000 general damages. Oni v MVIT [2004] PGNC 16; N2767 applied the same reasoning to an overladen vehicle that overturned. In Paula v MVIT [1992] PGNC 4; N1032 a bus ran into a parked truck: with no evidence, for example, that the driver was blinded by oncoming lights, “the Court can only find that the driver was negligent”.

Mechanical failure and burst tyres

A mechanical defect is not an automatic defence. In Bonnie v MVIT [1994] PGLawRp 632; [1994] PNGLR 393 the driver blamed a burst tyre; the court considered the standard of maintenance expected and found the driver liable on the balance of probabilities. In Kandaso v MVIT [1992] PGNC 22; N1074 a suspected steering fault did not excuse the driver. But the burden stays on the plaintiff: in Temai v MVIT [1994] PGNC 1; N1442 a burst tyre was not shown to be the driver’s fault and the claim failed. The difference lies in the evidence about the tyre’s condition, the speed and the driver’s reaction.

Other recurring fact patterns

• Broken-down vehicles. A truck struck two men pushing their broken-down vehicle off a double-lane road; the truck driver was negligent, and the Supreme Court in Moka v MVIL [2004] PGSC 38; SC729 reversed the trial judge’s finding that the men were themselves contributorily negligent.
• Towing. A towing driver who ignores a request to wait until a steering lock is freed is fully liable: Rundle v MVIT [1989] PGLawRp 67; [1988-89] PNGLR 618.
• Driving off when threatened. A driver who does not stop after being threatened, and injures a passenger in the process, is still liable to the passenger: Tuman v MVIL [2017] PGNC 375; N6923.
• Two vehicles both at fault. A passenger may sue the driver of his own vehicle for the whole loss: Koka v MVIT [1994] PGLawRp 671; [1995] PNGLR 344.