DC711

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN ITS GRADE FIVE CIVIL JURISDICTION]

GFCi 45 of 2007

BETWEEN

EVERLYN PETER
Complainant

AND

KENNETH SABUMEI
First Defendant

AND

PACIFIC BUILDING & FABRICATING LTD
Second Defendant

Goroka: M Gauli
2008: January 22

CIVIL - Tort – Negligence – Sustained injury to a right small finger in a motor vehicle accident – No vicarious liability – Injury did not arise within the scope of the employment – Judgment against first defendant – Exparte.

Cases Cited:
1. Roka Coffee Estate Pty Ltd –v- Largo Gerebi [1973] PNGLR, 486
2. Kokonas Kandapak –v- The State [1980] PNGLR, 575

References:
1. District Courts Act, Section 143
2. Workers Compensation Act, Schedule 3

Counsels:
For the Complainant - In Person
For the Defendant - No Appearance

22 January 2008

EXPARTE JUDGMENT

M Gauli, PM: The complainant Everlyn Peter claims compensation against the defendants Kenneth Sabumei and Pacific Building & Fabricating Limited in the sum of K10, 000.00 for the complete loss of her right hand small finger. The complainant is a villager from Chuave in the Chimbu Province.

2. Exparte Hearing 

The proceedings were adjourned from the 12 December, 2007 to 22 January 2008 for trial on the application by the defendant’s lawyer Mr. Dennis Umba. When the case proceed to Trial both the defendants and their lawyer are not present. I consider and apply Section 143 of the District Courts Act. This provision states and I quote:

“Where in the case of a complaint, the defendant does not appear at the place and at the time specified in the summons, or at the place and time to which the hearing was adjourned to or postponed, as the case may be, if – 

(a) it appears to the Court on oath that – 

(i) ………………..

(ii) ……………….

(b) no sufficient grounds are shown for an adjournment, the Court may proceed exparte to hear and determine the complaint or may adjourn the hearing to a future day.”

3. The complainant is a villager from Chimbu Province. She travels in from her village to attend the hearing in Goroka District Court in the Eastern Highlands Province. It is quite expensive for an ordinary villager if the trial is adjourned to another day. The defendants and their lawyers have not informed this Court of their failure to attend the Court for hearing of this proceedings on 22 January 2008. Thus I apply Section 143 of the District Courts Act and proceed with the trial exparte.

4. Complainant’s Evidence 

The Complainant Everlyn Peter has only herself who gave evidence. Her only other witness has gone to Port Moresby thus she could not provide that witness. Her evidence is summarized as below.

5. That on the 12 of February 2007 in Goroka town at about 3:00 pm, she was with her brother going back from the Goroka town’s main market to Stone Block at North Goroka. When they came to the Raun Raun Theatre, the first defendant Kenneth Sabumei drove up and stopped near them. He was driving a blue Mazda T35 Dump Truck, registration number HAG 999 owned by the second defendant the Pacific Building & Fabricating Limited or (PBF). At that time the defendant’s wife was walking up with the complainant. And they all board the truck and drove up towards Busu Coffee.

6. When the complainant and others boarded the truck the driver Kenneth Sabumei did not refuse them from boarding the vehicle. When the vehicle stopped at the Greathead Drive, the complainant jumped off the truck. The first defendant without noticing some of the passengers on board the truck were jumping off, he accelerated to take off. And in that process the complainant’s small finger of her right hand entangled in the trucks trailor – and was completely shivered off at the first P.I.P joint (Refer to EXHIBIT ‘C’). On noticing this incident the first defendant shouted and said “I did not stop the truck, I only stopped to pick up my family” and he drove off.

7. Having considered the complainant’s evidence, I am satisfied that the first defendant Kenneth Sabumei picked up the complainant in the vehicle owned by the second defendant (the PBF). And when the complainant was getting off at the Greathead Drive, the first defendant accelerated to take off which resulted in complainants right hand small finger got entangled in the trailor of the truck and got shivered off completely. The first defendant had never refused the complainant from boarding the vehicle at the first instance. And when he stopped at the Greahead Drive, he failed to see that some of his passengers were getting off before he accelerated. Under those circumstances I find that the first defendant is liable for causing the injury to one of the passengers on board the vehicle he was driving. The manner of his driving at the time was negligence.

8. Vicarious Liability 

It is the established law that the employer is vicariously liable for the actions of the employee. The first defendant Kenneth Sabumie is employed by the second defendant the Pacific Building & Fabricating Limited as a driver of their Dump Truck, a blue Mazda T35 registration number HAG 999. The scope of work of the first defendant is to pick up rubbish and not passengers. Where the employee, the driver of a dump truck picks up passengers and anyone of those passengers is injured while being a passenger on board that vehicle, the employer could not be held vicariously liable for the reasons that accident caused by the employee driver was not within the scope of his employment. That is to say that picking off passengers was not within the scope of his employment even though the driver was on duty carrying out other duties authorized by the employer. 

9. The case relevant to our present cause of action is that of Roka Coffee Estate Pty Ltd –v- Largo Gerebi [1973] PNGLR 486. In that case the plaintiffs husband was killed in a motor vehicle accident when he was given a lift in a vehicle owned by the Roka Coffee Estate Pty Ltd and driven by one of its employees who was a coffee buyer. It was not within the scope of his employment to pick up passengers. The National Court found the defendant vicariously liable and awarded compensation in the sum of $19, 000.00. On appeal the Supreme Court in dismissing the decision of the National Court, held that and I quote:

“(1) The driver had, on the facts, no express or implied authority from his employer, the vehicle owner, to pick up passengers and hence was not acting within the scope of his employment in doing so. Consequently the employer was not vicariously liable for the drivers negligence: Twine –v- Bean’s Express [1946], All E.R 2002 followed.”

10. The driver Kenneth Sabumei no doubt was employed by the Pacific Building and Fabricating Limited as a driver of a dump truck. While employed and driving the truck, he did pick up some passengers on the road side including the victim Everlyn. The picking of passengers was not within the scope of his employment therefore the employer the PBF Limited could not be held vicariously liable. The first defendant Kenneth Sabumei was negligent in not making sure of his passengers getting off the vehicle resulting in the victim being injured. The first defendant alone is held to be liable for the injuries. 

11. Assessment of Damages

The complainant claims damages for her injured small finger in the sum of K10, 000.00 which is within the monetary limit of this Court. Under the Schedule 3 of the Workers Compensation Act Chapter 179 a person who suffered a total loss of the little finger would receive 14% of K25, 000.00. This rate was for 1994. That rate may have increased over the last 13 years. The compensation payable based on 1994 rate if the victim is employed would be K3, 500.00. Since the victim is not employed at the time of sustaining the injury, the rate of compensation under the Workers Compensation Act are not applicable.

12. The National Court in the case of Kokonas Kandapak –v- The State [1980] PNGLR 575 awarded a sum of K10, 000.00 in damages to the plaintiff who sustained compound fracture to his right middle (ring) finger in a motor vehicle accident. That injury caused damage to the ulna nerve causing his claw hand deformity that he could not move or use his right hand. The victim was a subsistence farmer.

13. In the present case before me, there is no evidence of the victim’s right hand being less useful or not useful following the injury she sustained apart from slight loss of grip and grasping as per the medical report (EXHIBIT ‘C’). I do take note that the victim Everlyn has completely lost her small finger. And would have suffered a lot of pain at the time. Her right hand, despite losing the small finger, is still useful to do heavy duty work though there is a slight loss of grip and grasp. Comparing her injury to the injuries sustained in the Kokonas Kandapak (above), the injury suffered by Everlyn Peter is less than that suffered by Kokonas Kandapak. I would assess the damage in the sum of K6, 000.00. And I award the sum of K6, 000.00 for the complainant against the first defendant Kenneth Sabumei.

14. I also award costs. The cost includes K2.00 filing fee and PMV fare between Chuave in Chimbu Province to Goroka at a rate of K40.00 two ways. The complainant attended Court four times. Since she travels in from another province to attend Court I consider a sum of K200.00 for meals and accommodation as reasonable I award a total sum of K362.00 as costs.

15. And I enter judgment in favour of the complainant in the sum of K6, 000.00 as compensation plus K362.00 costs against the defendant Kenneth Sabumei.

For the Complainant - In person
For the Defendant - No Appearance