DC765

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 2429 OF 2006

BETWEEN

WILLIAM RAGA
COMPLAINANT

AND

CORPS (PNG) LIMITED
DEFENDANT

Port Moresby: S GORA
2008: 22 JANUARY

Cases Cited

Nil 

Statutes Cited

Nil 

Counsel

Complainant appeared for himself
Warner Shand Lawyers for the Defendant

DECISION

GORA. S This is an action by the Complainant William Raga against the defendant seeking orders for refund of One Thousand Seven Hundred Twenty Eight Kina and Forty Toea (K1, 728.40) which amount he claim was deducted unjustly from his salaries by the Defendant Company.

2. The facts in brief are that since 28 January 2002, the complainant was in the employ of the defendant company as security personnel. The complainant, like any other employees of the Defendant Company was employed under a contract of Employment dated 28 January 2002.

3. Apart from his day-to-day security functions, he was also engaged as a security driver.

4. On or about 16 February 2004, while the complainant was driving the defendant company’s armoured vehicle, Registration Number BBL 131, he got involved in a motor traffic accident just near the entrance of the Defendant company’s premises located at Kenmore Trade center, Gordons National Capital District. The accident involved a motor vehicle of a client of the Defendant Company one Ms. Agnes Piel (client).

5. The accident matter was then attended to by the Defendant Company’s contract Service Manager Mr. Chris Chatto, who was the duty officer at that time.

6. Mr. Chatto carried out an investigation into the accident and it was ascertained that the complainant had been at fault as he had been driving too close to the rear end of the clients vehicle and left little or no room between both vehicles.

7. Mr. Chatto then explained to the complainant that as a consequence of his lack of due care and attention, he would be liable to pay the clients repair costs as per company policy.

8. The client, Ms Piel, on the hand was advised to produce three quotations, but she produced only one (1) quotation from Ela Motors due to reasons that the damaged vehicle parts were unavailable at other motor parts dealers.

9 Mr. Chatto subsequently handed over all documents, including the quotation from Ela Motors to the accounts section for processing but advised them not to proceed until the other quotations had been forthcoming.

9. On or about early 2005, the client attended at the defendant company’s premises and explained that it was impossible for her to obtain two other quotations from other dealers, as they just did not have the required parts.

10. Consequently, on or about March2005, a cheque for the sum of One Thousand Nine Hundred One Kina and twenty four toea (K1, 901.24) (i.e. One thousand seven hundred twenty eight kina and forty toea (K1, 728.40 plus GST tax) was paid by the defendant Company to Ela Motors for the repairs to the clients vehicle as per the quotation from Ela Motors only.

11. About 27 March 2005, the Defendant company then commenced fortnightly deductions of Fifty Kina (K50.00) from the complainant’s salary to recover the amount of One Thousand seven hundred twenty eight kina forty toea (K1, 728.40).

12. The complainant complained about these deductions claiming that he should not be liable to pay the repair costs of the other vehicle involved. But the Defendant Company maintained that it was in accordance with the company policy under Clause twelve (12) of the new terms and conditions with regards to the use of company vehicles and accidents arising there from.

13. The Complainant then instituted this proceeding against the Defendant Company claiming that the deductions made by the company were unjustified and unlawful

14. The issue is whether or not the fifty kina (K50.00) wage deduction for repayment of repair costs to the other vehicle was justified and unlawful under the circumstances. The complainant submitted, that the deductions were unjustified and unlawful. He gave couple of reasons.

1)	That the cost of damage was based only on one (1) quotation and not three (3) as is often the case.

2)	That the Defendant Company’s client Ms. Piel was at fault hence causing the accident.

3)	That Ms. Piel did not report the accident to the Police who would have conducted their investigation to determine who was at fault and the extent of damage caused to Ms Piel’s vehicle. Instead she went directly to the Defendant Company and reported the matter and Mr. Chatto of the defendant company conducted his own investigation.

4)	That the extent of damage caused to Ms. Piel’s vehicle was only a slight dent and did not justify the amount of One thousand seven hundred twenty eight kina and forty toea (K1, 728.40) to be deducted from his salary to meet the cost of repairs.

15. The Defendant Company on the other hand submitted that deduction of fifty kina (K50.00) per fortnight to cover the repair cost of one thousand seven hundred twenty eight kina and forty toea (K1, 728.40) was justified. Firstly for reasons that the complainant was at fault in causing the accident. He failed to exercise due care whilst driving company vehicle. And secondly, that the action taken by the company to make fortnightly deductions from the complainant’s salary was in accordance with Clause 12.1 of its terms and conditions of employment of drivers. 

Clause 12.1 reads:

"Drivers will be held responsible for the payment of repairs resulting from road traffic accident deemed to be their fault up to the insurance excess of seven thousand five hundred kina (K7, 500.00)."

16. In determining the issue at hand, it is appropriate at this stage to consider the evidence of both parties. The complainants evidence is contained in his own affidavits sworn and filed on different dates as well as the evidence adduced in cross-examination during trial of this case. The Defendant company’s evidence on the other hand is contained in the affidavit of one Dale Gilchrist, the company’s operation Manager and also his evidence adduced during cross examination.

17. It appears from the outset that the Defendant Company acted on a report made by one Ms. Piel. Ms. Piel apparently is a client of the Defendant Company whose vehicle was involved in the accident with the company’s vehicle driven by the complainant. 

18. Mr. Chris Chatto the Defendant Company’s contact Service Manager was then tasked to carry out an investigation into the accident. His findings were that the complainant was at fault in that he failed to maintain reasonable distance from vehicles in front. He failed to exercise due care.

19. I am somewhat surprised why both Mr. Chatto and Ms. Piel were not called into court to give evidence, particularly by the defense. Their evidence would have been crucial to the issue at hand particularly in relation to the extent of damage caused to Ms. Piel’s vehicle and to determine whether the amount of one thousand seven hundred twenty eight kina and forty toea (K1, 728.40) being the cost of repair was justified.

20. I am also doubtful on the accuracy and fairness of the investigation and or report done by Mr. Chatto relating to the accident, bearing in mind that Ms. Piel, whose vehicle was involved in the accident is a client of the defendant company. Does it not raise questions of unfairness and bias on the part of Mr. Chatto. Why couldn’t the Defendant company or the both parties for that matter call for an independent and or neutral report from the police traffic Unit on the accident for purposes of determining who was at fault and the extent of damage caused to Ms Piel’s vehicle.

21. Under the circumstances, I am not convinced that the Defendant Company acted on reports, which were fair and impartial. I think the complainant’s version of the accident was not properly taken into account, hence, made to pay for the repair costs of Ms. Piel’s vehicle.

22. The other aspect of the Defendant company’s argument in relation to the issue at hand is that the deductions made to the complainant salary to pay for the repair cost of Ms Piel’s vehicle was in accordance with Clause 12.1 of the terms and Condition of Employment of Drivers.

23. I have already quoted clause 12.1 provisions above. The question is does clause 12.1 refers to company vehicle only or generally to other vehicle as well.

The clause 12.1 provisions are annexed to the affidavit of on Dale Gilchrist dated 28 June 2007, as annexure "B" and quoted in paragraph six (6) of his affidavit. The heading reads:

"Conditions of Use – Company vehicles"

24. From the heading quoted above I tend to interpret the provisions of Clause 12.1 as referring to company vehicles only and none other. Meaning that where drivers of company vehicles are involved in road accidents and damaged is caused to company vehicle by reason of the accident, then the concerned driver becomes liable to pay for repair costs of the company vehicle only. This in my view does not extend to other vehicles.

25. If this is the correct interpretation then the complainant should not have been held liable to pay for repair cost of Ms Piel’s vehicle.

26. The final aspect of the issue relates to the quotation used by the defendant company to effect payments for repair cost of Ms Piel’s vehicle.

27. Evidence is clear to show that the Defendant Company relied only on one (1) quotation from Ela motors to effect payment to meet repair cost of Ms. Piel’s vehicle. It was on the basis of this quotation that deductions were effected from complainant’s salary towards payment of repair cost.

28. Is this fair to the complainant? Under normal or usual practice three (3) quotations ought to have been provided to ascertain the reasonable amount/price. This was not the case in this matter only one quotation was provided.

29. Thus in failing to obtain two (2) other quotes, the most fairest and reasonable thing to do under the circumstances was for the Defendant company to consider reducing by half, payments to be made by the complainant.

30. This in fact was recommended by Mr. Chatto in his letter to the Operations Manger Dale Gilchrist dated 1 December 2005, in the last sentence he stated:

"I feel that 1578 (i.e complainant) should be given a reprieve from paying the full amount of cost of damages to the other vehicle and should only pay half the total cost excluding GST." [Emphasis Mine]

(See Annexure "E" of Gilchrist’s affidavit of 28 June 2007.

31. I cannot see any reasons why the Defendant Company did not consider this recommendation. This was a fair recommendation under the circumstances and particularly in view of the fact that amount presented for repair cost was from Ela Motors only. There were no other quotes obtained.

32. I think the Defendant Company acted too harsh and unfair to the complainant.

33. Having made these observations, I am satisfied on the balance of probabilities that:

•	The vehicle accident report of Mr. Chatto was not a fair and just report. An ordinary person would conclude that since Agnes Piel was Defendant Company’s client the investigation report of Mr. Chatto would be biased.

•	That Clause 12.1 of the Terms and Conditions of Employment of Drivers refer to only company vehicles.

•	Amount based on one quotation only and used as basis to deduct the sum of one thousand seven hundred twenty eight kina and forty toea (K1, 728.40) from complainant’s salary by the defendant company was unfair and unjust under the circumstances.

34. Defendant should have considered allowing payment by half the total amount as recommended by Mr. Chatto.

35. Accordingly, I find that the Defendant Company acted unjustly and unfairly in deducting the full sum of One thousand seven hundred twenty eight kina and forty toea (K1, 728.40) from the complainant’s salary to pay for repair cost of Ms. Piel’s vehicle.

36. And therefore I order as follows:

1)	Defendant company is hereby ordered to re-imburse to the complainant the sum of Eight hundred sixty four kina and twenty toea (K864.20) being half of One thousand seven hundred twenty eight kina and forty toea (K1, 728.40) paid towards repair of vehicle.

2)	Parties to meet their own cost.
 
Complainant appeared in Person
Warner Shand Lawyers for the Defendant