[1973] PNGLR 486
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

ROKA COFFEE ESTATE PTY. LTD.

V

LARGO GEREBI AND ANOTHER

Port Moresby
Minogue CJ Frost SPJ Clarkson J

26-27 March 1973
27 June 1973

NEGLIGENCE - Fatal accident - Vicarious liability - Vehicle owner’s liability for the negligent driving of his employee - Was the employee acting within the scope of his employment in giving a lift to a stranger - Liability under the Law Reform (Miscellaneous Provisions) Ordinance, 1962 Pt. IV and under the Motor Vehicles (Third Party Insurance) Ordinance 1952-1956, ss. 6 (2), 6 (3).[dxliii]1

The plaintiff’s husband, a school teacher, was killed in a motor accident. He was one of a party of ten persons who had been given a lift in a vehicle owned by the defendant and driven by one of its employees, a coffee buyer. The deceased knew that the driver was adversely affected by liquor, and the deceased had an opportunity to alight. The accident was caused by the driver’s negligence. In an action brought under the Law Reform (Miscellaneous Provisions) Ordinance, 1962 Pt. IV against the employer the trial judge awarded $19,500 damages to the plaintiff.

On appeal to the Full Court;

Held

(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 driver’s negligence.

Twine v. Bean’s Express [1946] 1 All E.R. 202 followed.

(2)      But s. 6 (2) of the Motor Vehicles (Third Party Insurance) Ordinance 1952-1956 made the owner liable for the driver’s conduct whether or not the owner authorized the driver to drive and whether or not the circumstances were such that the owner would be vicariously liable at common law.

Jennings v. Hannan (1968-69), 89 W.N. (Pt. 2) (N.S.W.) 232 followed;

And the owner’s liability under s. 6 (3) of that Ordinance was limited to the amount of his indemnity under the third-party policy, which in this case was $8,000.

(3)      (Per Frost SPJ), obiter, the standard of care to be expected from the driver should not vary with the passenger’s knowledge of the driver’s skill or condition.

Nettleship v. Weston [1971] 2 Q.B. 691, Insurance Commissioner v. Joyce (1948), 77 C.L.R. 39 and Roggenkamp v. Bennett (1950), 80 C.L.R. 292 considered.

(4)      The trial judge was not wrong in rejecting the defence of voluntary assumption of risk. In all the circumstances, including the uncertainty of alternative transport and the danger of walking along the road at night, the passenger had no practical choice but to continue riding in the vehicle.

Sara v. Government Insurance Office of New South Wales (1969), 89 W.N. (Pt. 1) (N.S.W.) 203 considered.

(5)      (Per Frost SPJ and Clarkson J) the award of damages was on the facts excessive.

(6)      The appeal should be allowed and the damages reduced to $8,000.00.

Appeal

This was an appeal against a judgment for $19,500.00 awarded by Muirhead AJ in favour of the plaintiff (respondent) in an action brought pursuant to Pt. IV of the Law Reform (Miscellaneous Provisions) Ordinance, 1962, on behalf of herself as widow and on behalf of two children of the marriage. The plaintiff’s husband was killed in a motor vehicle accident in July 1968 whilst a passenger in a motor vehicle which was then owned by the defendant (appellant) and being driven by another defendant. Further relevant facts appear in the reasons for judgment of Frost SPJ The trial judge found that driver defendant was guilty of negligence whilst driving in the course of his employment by the appellant and rejected the defences of volenti non fit injuria and contributory negligence. The appellant appealed against both liability and quantum.

Counsel
F. G. Brennan Q.C. and G. R. Rissen, for the appellant.
K. O’Leary and M. Campbell, for the first respondent.
Cur. adv. vult.

27 June 1973

The following written judgments were delivered:

MINOGUE CJ: I shall ask my brother Frost to deliver the first judgment.

FROST SPJ: This is an appeal brought by the appellant, who was one of the defendants, against a judgment for $19,500.00 given by Muirhead AJ in favour of the respondent Largo Gerebi, who was the plaintiff in an action brought by her as the widow of one Vari Kila deceased, for damages resulting from the death of her husband in a road accident which occurred on Friday the 12th July, 1968. The action was brought against the appellant, who was the owner of the utility truck in which the deceased was travelling as a passenger when he suffered the injuries which caused his death, and also against the respondent Joseph Tomonoi who was the driver of that vehicle. The action was brought pursuant to the Law Reform (Miscellaneous Provisions) Ordinance 1962 on the plaintiff’s own behalf and on behalf of two children of the marriage, Doris Vari and Vari Vari. The respondent Tomonoi did not appear and took no part in the appeal. The appeal is brought both against liability and the quantum of damages.

The respondent Largo Gerebi, whom I shall call the respondent, claimed in the action that her husband’s death was caused by the negligence of the appellant, its servant or agent, Joseph Tomonoi, who it was alleged was driving the vehicle in the course of his employment, and by the negligence of Joseph Tomonoi in the driving, management and control of the motor vehicle. At the hearing the defendant denied the allegations of agency, driving in the course of employment and negligence. Contributory negligence was pleaded, and also the defence of volenti non fit injuria in the following terms:

“Alternatively the Defendants say that the deceased person VARI KILA knew and accepted the obvious risk of driving in the motor vehicle registered number 35-372 at all relevant times when the driver was clearly under the influence of intoxicating liquor and had immediately before the relevant journey demonstrated a present propensity to drive recklessly and at high speed.”

During the plaintiff’s case, the joint defence was amended by leave, to include a plea that the defendants were not in breach of any duty.

From the evidence at the trial it appeared that a collision occurred shortly after sunset on the Highlands Highway about six miles from Goroka between the vehicle driven by Tomonoi, which had been travelling towards Goroka, and a vehicle being driven in the opposite direction by one Ega Buassi. The trial judge found that the collision was caused by the negligence of Tomonoi, and no appeal is brought against that finding. The defences of volenti non fit injuria and contributory negligence were both rejected.

As to liability, the main grounds of appeal were related to the trial judge’s rejection of the defence of volenti non fit injuria, and against the finding that the respondent Tomonoi was driving in the course of his employment by the appellant. No appeal is brought against the finding that there was no contributory negligence. The witnesses who gave evidence at the trial were Inspector Jarratt, who was called to the scene of the accident, and also three of the passengers in the utility. They were Leslie Boase, a carpenter from Rabaul, Set Tadae, also a carpenter, from Lae, and Henry Kombil, a Tolai teacher who was afflicted by arthritis. Kombil and the deceased, who was also a teacher, had arranged a shopping expedition in Goroka for the weekend. At about 4.30 p.m. at Henganofi Kombil saw Tomonoi and arranged a lift to Goroka. The trial judge found that the deceased was probably present and was thus a party to that arrangement. The journey commenced at Henganofi, a distance of about twenty-three miles along the Highlands Highway, east of Goroka. Over this distance the road was winding and undulating.

It is not necessary to state the facts in detail. Inspector Jarratt said that there were twelve persons in all in the vehicle. In the cabin there were Tomonoi and his wife, but no finding was made as to the persons in the back. However, there were certainly nine, made up of four building apprentices, the two carpenters, the two teachers and a medical orderly. After leaving a trade store known as Collins Store at Henganofi, the vehicle stopped at the Roka Trade Store, proceeded to a bridge called the Dirtywater Bridge, stopped again at the Lufa turn-off, which was apparently the junction of the road to Lufa and the Highlands Highway, and finally at a trade store at Kamaliki. The collision occurred only a short distance from Kamaliki. Tomonoi had drunk liquor apparently unknown to the deceased before picking up the two teachers, at Boase’s house. He continued to drink upon the journey at various stopping places. At the Lufa turn-off he drank gin and vomited. His driving was fast, he cut corners and caused his passengers to call out to him to slow down. After leaving Kamaliki, Set Tadae asked Tomonoi to drive slowly, but Tomonoi was driving at high speed and partly on his wrong side of the road when the collision occurred.

Upon the evidence the trial judge said he was satisfied as to the following:

“(1)    At the time the deceased boarded the defendant’s vehicle he had no reason to believe or suspect that the journey would be other than safe, that he was not in the hands of a sensible and competent driver.

(2)      By the time the vehicle reached the Dirtywater Bridge the deceased knew his driver was adversely affected by liquor.

(3)      The deceased had the physical opportunity to alight from the vehicle, after the driver’s condition became apparent, at the bridge, at the Lufa turn-off and at Kamaliki trade store.

(4)      The deceased was not himself at any stage under the influence of liquor.

(5)      The deceased and others in the party, to the deceased’s knowledge had asked the defendant Tomonoi to travel slowly, to stop drinking. It cannot be described as in any way a joint frolic or venture in which the deceased was a willing participant.

(6)      The deceased and his companions had been apprehensive of danger for some time. The deceased did not avail himself of what I have described as ‘the physical opportunity’ of alighting, nor did any of the other passengers. I am satisfied that when the last stage of the trip commenced the deceased appreciated and was apprehensive of the risk involved.”

The trial judge then dealt with the defence of voluntary acceptance of risk. Reference was made to the decisions of the High Court in Roggenkamp v. Bennett[dxliv]2 and Insurance Commissioner v. Joyce[dxlv]3 and the decision of the Court of Appeal in New South Wales in Sara v. Government Insurance Office of New South Wales[dxlvi]4. Upon these authorities his Honour stated that it was not to be automatically inferred from his findings that there was a voluntary assumption of the risk; the defence could only succeed if the evidence established on the probabilities that the deceased’s action in boarding the utility on the occasions he did gave rise to an inference that there was a voluntary choice. The trial judge then turned to the circumstances which led to the deceased’s decision to remain in the vehicle, and it was this evidence which led him to come to a conclusion different from that which the above findings alone might have supported. He found that the reason for the deceased, despite his experiences, continuing the journey and remaining as a passenger on the vehicle was that he was afraid to leave the vehicle, taking into account the social conditions that prevailed in the Highlands. The trial judge considered that the matter called for a consideration of the state of the mind of the deceased, and the competitive issues with which he was confronted, and that the examination could not be entirely objective. His Honour said that if a person is placed in a dilemma by a driver’s conduct, the choice then made due to the exigencies of the situation could not be termed to be a voluntary assumption of risk. His Honour stressed the facts that the deceased and Kombil were not indigenous to the Highlands area, the deceased being a Papuan and Kombil a Tolai from the Gazelle Peninsula, they had arranged accommodation at Goroka, the deceased and Kombil were in company, the latter by reason of arthritis not being himself capable of walking a significant distance, the deceased had travelled the route on only one occasion beforehand although he had worked for some time in the Highlands area, and the vehicle had but six miles to travel before reaching Goroka.

His Honour also stressed the following considerations:

“The Highlands Highway runs through areas which are comparatively thickly populated by vigorous people who live in village, tribal or clan communities, who speak different tongues and who certainly on the average cannot be assumed to have the sophistication—if that is the correct word—of persons inhabiting for instance the Australian or English countryside. It is an area where strangers may or may not be accepted by the local people.”

This passage, and particularly the last sentence, was objected to in one of the grounds of appeal, but as will be seen, in my opinion, it was a legitimate inference from the evidence.

His Honour then had regard to particular passages in the evidence. There was the significant fact that the driver Ega Buassi did not stop his vehicle after the collision, but elected to travel for many miles before reaching the police station at Henganofi. The reason, as stated by him, was that he thought there might be a “pay-back” carried out by the passengers in Tomonoi’s vehicle and he was frightened that they might kill him. This was one of the matters which his Honour could have had in mind in referring to the characteristics of the Highlands people. Boase was asked would he be prepared to sleep by himself on the side of the road and he answered, “I was frightened—people might come along at night and kill me or they might come and have a fight with me.” He was asked was he prepared to take the risk of accident because he had five miles to go, and his answer was, “I was frightened. I was prepared to take the risk of going to Goroka because it was a short distance and I wanted to get it all over.” Henry Kombil was asked would he have walked into Goroka at that time, and his answer was, “I don’t think so. I was frightened of the people. The people in the villages around here. There are no villages near the vocational centre but you can see a village up on the hill.” In cross-examination he was asked, “You know people go up and down all night”, referring to people walking up and down the Highway and the answer given was, “I didn’t want to do it because I was frightened”. To the question, “Looking back what you were prepared to do was to stay on the truck and risk your life rather than wait for another vehicle”, his answer was, “No. There are lots of trucks using the road. Most come from Lae and the Highlands Highway and are not allowed to carry passengers. What comes into my mind, if I get down and wait for a truck and if I miss a truck where will I sleep. Someone might kill me that night.” Inspector Jarratt was examined and cross-examined on the issue. When asked about “walking along that road by himself at night time”, he said, “There would be some element of danger to a person not indigenous to that area”, although he stressed that the more persons who walked together the safer they would be. He also agreed that the Kamaliki store was lit and that he would “not envisage a long wait before a P.M.V. or some other transport was available.” He said there was, “not great danger” in waiting at the store nor a great number of people in the near vicinity.

On the evidence the trial judge found that it was probable that the store was closing or about to close, but whether there was a telephone at the store could not be determined, nor could his Honour find that a taxi service was then available. However, his Honour was confident that a P.M.V. transport service was then operating in the area, and certainly provided a possible alternative means of transport.

The trial judge’s conclusion was that, whilst there were alternatives available which with hindsight it would possibly have been wise to adopt, he was convinced that apprehension of possible alternative danger explained why the deceased elected to remain with the vehicle and that, whilst the deceased had adequate opportunity of quitting the vehicle even before dark, the defendant’s conduct as it developed placed the deceased in a dilemma so that his choice to remain was not proved to have been made in the exercise of free will to the extent that he must be deemed to have consented to take the consequences of the risk. For the same reasons his Honour also rejected the defence of contributory negligence.

Finally the trial judge held that the plaintiff had proved that Tomonoi was driving in the course of his employment with the appellant company. His reasons were that Tomonoi was driving the appellant’s vehicle and was carrying some coffee at the time en route to the appellant’s estate.

It is convenient first to turn to the ground of appeal that the finding of the trial judge that Tomonoi was at the relevant time driving in the course of his employment with the appellant was against the evidence and the weight of evidence.

In the court below at the outset of the trial, as it appears from the judge’s notes, counsel for the defendant intimated that he would contend that there was a statutory limit of $8,000.00 liability and that the agency of the defendant Tomonoi was not admitted by the second defendant. There is thus no foundation for the suggestion by counsel for the respondent that this point was not in issue. The reference to the $8,000.00 statutory limit was a reference to the provisions of the Motor Vehicles (Third Party Insurance) Ordinance 1952-56, and in particular to s. 6 which introduced a system of compulsory insurance by owners of motor vehicles against liability by way of damages for death or bodily injury caused to a person arising out of the use of a motor vehicle. Section 6 (1). Although the words used in sub-par. (2) of that section are not precisely the same as the corresponding provisions of the Motor Vehicles (Third Party Insurance) Act of New South Wales, s. 16, the effect, in my opinion, is the same that it “sets up in effect a conclusive rule of liability on the owner of the car, whether or not it was being driven by somebody who had his authority to drive it or whether the circumstances were or were not such that under the general law vicarious liability would attach.” Jennings v. Hannan [dxlvii]5. Apart from this statutory presumption, under s. 6 (3) it is provided in the Ordinance that if at the time when a claim referred to in sub-par. (2) arose the motor vehicle concerned was being driven by a person for whose acts or omissions at that time the owner apart from the provisions of the last preceding subsection would not have been liable, the liability of the owner under that subsection is limited to the amount for which he is entitled to be indemnified against that claim under the third party policy.

Before this court, whilst counsel for the appellant conceded that as the vehicle was owned by the appellant, the widow was entitled to recover up to the limit of the statutory indemnity, viz. $8,000.00, he submitted that as otherwise the appellant was not responsible for Tomonoi’s acts or omissions, that was the limit of the appellant’s liability. Counsel for the appellant sought to put his submissions upon the ground that no duty was owed, for it was submitted that the respondent had not shown that the deceased had been brought within the class of persons to whom the duty to take care was owed by the employer. Counsel relied on the case of Twine v. Bean’s Express[dxlviii]6 which was affirmed by the Court of Appeal[dxlix]7. That was a case in which the facts were similar to the present except that the driver was authorized to carry certain classes of persons, but was otherwise forbidden to carry passengers, and the plaintiff’s husband who was killed whilst on the vehicle, was an unauthorized passenger.

That case raises the question of the basis of the vicarious liability of a master for the acts and omissions of his servant. The traditional view is that the master is liable for the servant’s torts committed within the scope of his employment. In the opinion of Fullagar J expressed in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long[dl]8 the rule “is rightly stated, as it always is, in terms of liability and not in terms of duty. The liability is a true vicarious liability: that is to say, the master is liable not for a breach of a duty resting on him and broken by him but for a breach of duty resting on another and broken by another.” However, in Twine v. Bean’s Express[dli]9 the trial judge, Uthwatt J expressed a contrary view, as follows, “The general question in an action against the employer, such as the present, is technically: ‘Did the employer in the circumstances which affected him owe a duty?’ —for the law does not attribute to the employer the liability which attaches to the servant”. The view of Uthwatt J was upheld by Kitto J in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [dlii]10. The two latter cases were cited with approval by Barwick CJ in Ramsay v. Pigram [dliii]11.

These cases raise a fundamental point of principle but, in my opinion, the present case is capable of being decided, as Mr. Brennan submitted, on the question whether it was proved to have been within the scope of the employment of Tomonoi to give the deceased together with the other occupants a lift upon the vehicle. Support for this approach is to be found in Twine v. Bean’s Express[dliv]12 and also in Conway v. George Wimpey & Co. Ltd. [dlv]13.

In the Court of Appeal in Twine v. Bean’s Express[dlvi]14 Lord Greene MR. upheld the judgment of Uthwatt J on two grounds, firstly that the plaintiff’s husband in that case was found to be a trespasser and, secondly, that, in giving a lift to the deceased man, the driver was not acting in the scope of his employment. Lord Greene pointed out that it was clear that the driver was acting as the driver of the van in the course of his employment but that did not mean as counsel for the appellant in that case suggested, “that because the deceased man was in the van it was within the scope of the driver’s employment to be driving the deceased man. He was in fact doing two things at once. He was driving his van from one place to another by a route which he was properly taking when he ran into the omnibus, and in driving the van he was acting within the scope of his employment. The other thing which he was doing simultaneously was something totally outside the scope of his employment—namely, giving a lift to a person who had no right whatsoever to be there” (at p. 459).

The only facts bearing on this issue are that the vehicle was admitted to belong to the appellant, Tomonoi was a coffee buyer, he had been seen driving the vehicle on other occasions, he was driving to the Roka Coffee Estate where he lived and, although it seems quite equivocal, a bag of coffee was found in the vehicle. There is authority that the ownership of a motor vehicle is prima facie evidence that any person driving it and causing damage was driving within the authority and for the purposes of the owner. Jennings v. Hannan [dlvii]15; Harry Rambarran v. Gurrucharran [dlviii]16. The same inference could perhaps be drawn from the evidence that Tomonoi used to be seen driving the vehicle. There is no evidence that Tomonoi had express authority to give a lift. On the other side of the line this is not such a case as Twine v. Bean’s Express[dlix]17 where the driver was expressly forbidden to carry unauthorized passengers and a notice to that effect was displayed in the vehicle, or Young v. Edward Box & Co. Ltd.[dlx]18. Whether such authority could be implied depends upon the facts of the case. In Joss v. Snowball[dlxi]19 it was held that in absence of any evidence bearing upon the matter, or to be found in local conditions it could not be inferred that a country field representative “had ostensible authority in the course of his employment as distinct from a mere permission concurrently with his employment, to give lifts” (at p. 50). In Twine v. Bean’s Express[dlxii]20 Uthwatt J left open the question “Whether a stray passenger, picked up by a driver to whom no contrary instruction had been given falls within the class of persons” to whom the employer’s duty was owed.

In this case the deceased was not a single stray passenger but one of a party of ten persons who were permitted by the driver to travel on the utility truck. The onus was on the respondent to show that the permission by the driver to the deceased fell within the scope of the driver’s authority. In the case of a coffee buyer driving a utility truck along the Highlands Highway an implied authority could perhaps be inferred for the driver to give a lift to a stray passenger. But it is a different matter when the driver confers permission upon a group of passengers which, without exercising hindsight from the facts of this case—three men were killed and five injured—could quite possibly involve the appellant or its insurers in the risk of liability in large sums of money arising from claims for damages for personal injuries or death should an accident occur as the result of the driver’s negligence. To infer an authority to give such permission from the meagre facts proved in evidence would, in my opinion, be unjustified. Accordingly the appeal must succeed. The appellant’s liability is limited to $8,000.00 under the Motor Vehicles (Third Party Insurance) Ordinance, s. 6.

At the hearing counsel for the appellant sought leave to add a further ground of appeal to the effect that, in view of Tomonoi’s state of intoxication, there was no evidence of any duty owed by the appellant to the deceased, or, alternatively, of any breach of any such duty; and that if the learned trial judge found to the contrary his finding was against the evidence and the weight of evidence and was unreasonable. The appellant’s counsel relied particularly on the judgment of Sir Owen Dixon in Insurance Commissioner v. Joyce[dlxiii]21 in which are set out the three forms of defence, viz. no breach of duty, (the form preferred by the learned judge), volenti non fit injuria and contributory negligence, which in an action brought by an injured passenger may be stated on behalf of the driver whose ability to drive or control a car has been impaired by drink. That these three forms of defence are available in such an action was also decided in the same case by Latham CJ at p. 46 and also in Roggenkamp v. Bennett[dlxiv]22.

When counsel for the respondent opposed the application this court decided to hear the ground argued and reserved its decision as to whether leave should be given. I would have been in favour of granting the application because the judge’s notes show that following an amendment of the pleadings the defence was in effect pleaded and relied on at the hearing. However, on the view I have taken of the case a decision on this point is not necessary, and I propose merely to refer to the points raised in the argument.

In the two High Court cases referred to, the actual decision upon the appeal turned on the defence of volenti non fit injuria which on the facts in each case was upheld. In England, however, it has been held by the Court of Appeal, despite a strong dissenting judgment by Salmon LJ and contrary to the views of the High Court, that the standard of care does not vary with a known disability of the driver. Nettleship v. Weston [dlxv]23. That was a case in which the duty of care owed by a learner driver to a passenger instructor arose for decision. The views of the majority, Lord Denning MR. and Megaw LJ are well summed up in the headnote:

“Uncertainty, confusion and injustice would result if in the law of England the accepted standard of care were to be varied according to one person’s knowledge of another’s skill or condition.”

The judgment of Lord Denning MR. makes it quite clear that he was referring also to cases of impairment of faculties by drink. His Lordship also pointed out, “The knowledge of the passenger may go to show that he was guilty of contributory negligence in ever accepting the lift—and thus reduce his damages . . .” (at p. 700). Counsel for the respondent submitted that the views of the Court of Appeal should be preferred by this court. This submission involves the application of s. 16 of the Laws Repeal and Adopting Ordinance 1921 of New Guinea whereby it is provided that the principles and rules of common law and equity that were in force in England on 9th May, 1921 shall be in force in the Territory so far as the same are applicable to the circumstances of the Territory, and are not repugnant to, etc. the provisions of any Act, Ordinance, etc. If this issue does arise for future decision, the final test may be whether the acceptance of a standard of care varying according to the person’s knowledge of another’s skill or condition is applicable to local circumstances. It might then be thought that the difficulty of communication because of the many languages spoken in the country should be a relevant consideration. Thus in a given situation because of the increased mobility of the people there may well be found a group of people unable fully to communicate with each other. Without deciding the matter, this consideration would incline me to the view that the law applicable in Papua New Guinea is that laid down in Nettleship v. Weston [dlxvi]24.

I turn now to the appeal on the ground of the voluntary assumption of the risk. Upon rather special facts to which it is unnecessary to refer, that defence arose also for consideration in Nettleship v. Weston [dlxvii]25. Lord Denning MR. stated the law as follows:

“In former times this defence was used almost as an alternative defence to contributory negligence. Either defence defeated the action. Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered, and, in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant; or, more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him . . . The doctrine has been so severely curtailed that in the view of Diplock LJ: ‘the maxim in the absence of expressed contract has no application to negligence simpliciter where the duty of care is based solely upon proximity or “neighbourship” in the Atkinian sense’: see Wooldridge v. Sumner (1963) 2 Q.B. 43, 69.”

See also per Megaw LJ at p. 710.

In Australia it appears that the courts are more ready to infer a voluntary assumption of the risk. Thus in Sara v. Government Insurance Office of New South Wales[dlxviii]26 in stating the law as established by the High Court Walsh JA. (as he then was) said:

“In truth I think probably the situation is that if the plaintiff, with sufficient knowledge, voluntarily accepts the risk of physical injury, then without proof of any further fact concerning a supposed bargain between the parties, the law as it has been developed declares that in that situation and in that relationship the result is that the plaintiff has consented to being without remedy if injury should occur of the same kind as that which she knew to be likely because of the condition of the driver”.

But I do not consider that it is necessary in this case to decide whether the law applicable in Papua New Guinea is that expressed in Nettleship v. Weston[dlxix]27 or in the Australian cases, and there are two other considerations which would lead me to leave the matter open. First it is possible that the degree of drunkenness of Tomonoi was so “extreme and glaring”—”like walking on the edge of an unfenced cliff”—that it would support the strict inference required in the English rule. See Dann v. Hamilton[dlxx]28 cited with approval by Denning LJ in Nettleship v. Weston [dlxxi]29. Secondly, the trial judge’s judgment really turns on the point whether there was any assumption of the risk voluntarily, and the issue can I find be decided upon this point. It was a question of fact for the trial judge. Mr. Brennan argued that the matters taken into account by the trial judge were matters for which the driver was not responsible, but I consider them matters which, it could be inferred from the evidence were known to the driver as likely to give rise to a dilemma in the minds of the passengers if he rendered himself incapable of driving. Counsel then submitted that the circumstances before the court did not establish any reasonable ground for apprehension of bodily injury on the part of the deceased, if he left the vehicle. He thus submitted that the situation at Kamaliki should be looked at and, in particular, the evidence that the trade store was well-lit and could be assumed to have been kept well-lit at night for security purposes, and also the finding that a P.M.V. transport system was operating. It was thus submitted on behalf of the appellant that there was a free choice open to the deceased either to remain and avail himself of that alternative means of transport or by proceeding further on the journey voluntarily to assume the risk. But there was no evidence of any regular bus service or the times which would elapse before a P.M.V. could be expected to have passed the store at night. If the situation was not looked at as it was at Kamaliki but as from the commencement of the journey, it was submitted on behalf of the appellant that the effect of the judgment was that the deceased was placed in the position of having a legal claim as against the company to be driven from Henganofi to Goroka. But Dixon J considered a moral claim sufficient to justify a passenger in some cases in not relinquishing his seat (Insurance Commissioner v. Joyce [dlxxii]30), and no more is involved in the present judgment, in my opinion, than that. On the whole I am not convinced that the trial judge was wrong in concluding that the deceased had no real practical choice but to continue, and that he exposed himself to the danger only because of the peculiar situation operating in the Highlands of which the driver must have known. The deceased, in my opinion, also had a moral claim in the circumstances as against the driver to remain in the utility on its journey to Goroka which was sufficient to prevent any inference being drawn against him by his continuing on the journey. On this question of fact I am, therefore, not convinced that the trial judge was wrong and would, therefore, dismiss the appeal on this ground.

Whilst it is not strictly necessary it may prove convenient if the case is taken on appeal, to consider the final ground of appeal, that the award of damages was excessive. The trial judge arrived at the sum of $19,500.00 by assessing the loss of dependency at the rate of $50.00 per fortnight and then taking a multiplier of 15 years purchase. I have made some observations upon the use generally of the method in Smerdon v. Raquel[dlxxiii]31. However, counsel for the appellant stated that he took no objection to the use of this method, so that it remains as the only method of assessing damages in this case.

At the date of death the deceased was aged 29 years and the respondent 25 years. Their two children were then respectively three years of age and nearly eight months. There is a strong possibility that there would have been other children. The deceased, a school teacher by profession, as an acting grade 2 teacher received a gross salary of $1,530.00 per annum. In June, 1970 it would have been increased to $1,605.00. He had good prospects of advancement and the trial judge considered that he would have qualified as a grade 3 teacher, the salary for which, at the time of the trial, was $2,155-$2,475 per annum, but probably no further. The respondent stated that the deceased’s gross salary was $47.00 per fortnight, of which he received in cash $36.00. But in the absence of evidence as to the various deductions applicable, that is for retirement fund, insurance, tax and rent, it is difficult to reconcile the respondent’s evidence with a gross salary of $1,530.00. The trial judge seems to have taken the figure of $47.00 as the net salary with rent only to be deducted, but even on that basis in view of the evidence of the deceased’s personal expenditure of about $4.00 per fortnight and the deduction to be made for his food and clothing out of the family expenditure of $28.00 per fortnight, the fortnightly dependency could not have been much more than about $31.00. As there is no evidence of the period of years it would have taken the deceased to reach his maximum salary of $2,475.00, which is $95.00 per fortnight gross, the task of arriving at an average fortnightly dependency over his career was made even more difficult than in the usual case. But as the figure of $50.00 taken by the trial judge is more than half of that maximum, in my opinion, this is an indication that that sum was too high. Further, if the total award of $19,500.00 were invested at 6%, the annual income is $1,170.00 or $45.00 per fortnight which exceeds more than half of the deceased’s maximum net income whilst leaving the capital intact. As Lord Guest said in Taylor v. O’Connor[dlxxiv]32 in a passage dealing with the “multiplier” method, which was relied upon by the appellant’s counsel, “the aim of this exercise is to provide a figure which is proportionate to the injury resulting from the death. It is not to provide such a sum as would at current rates of interest leave the widow with the income she has lost. This would put her into a better position than she would have been apart from the death because at the end of the day she would still have the capital sum left” (at p. 135). So far I have treated the case, as the learned trial judge did, as if the respondent were an English or Australian widow. Upon this basis, having regard to the age of the parties, the multiplier of 15 could not be challenged. Mallett v. McMonagle [dlxxv]33. However, no proper assessment can be made without regard to the different social and economic conditions applicable in Papua New Guinea. Considerations by way of deduction to be given greater weight in Papua New Guinea are the respondent’s position following the award of damages as a wealthy widow indeed in Papua New Guinea society, which must enhance the prospects of her eventual re-marriage, and, further, as affecting the degree of support she could expect from the deceased, the durability of her marriage by native custom, the real possibility from time to time of the deceased’s incapacity by illness or supervening accident, or death before attaining retirement age. In this developing society I consider that there is a particular need for the customary moderation of the courts in assessing damages. In all the circumstances I consider, if damages were in issue, that the award is excessive and I would accordingly reduce the loss of dependency to $40.00 per fortnight and the multiplier to 12, making a total award of the round figure of $12,500.00 apportioned $2,300.00 to Doris $2,200.00 to Vari and $8,000.00 to the respondent.

For the reasons I have earlier stated the appeal should be allowed and the judgment against the appellant should be in the sum of $8,000.00 and the amount of the judgment against the respondent Tomonoi should remain unaltered. I would apportion that sum as to $5,500.00 to the widow, $1,300.00 to Doris and $1,200.00 to Vari.

CLARKSON J: I agree that in the circumstances as they existed at the time of the accident it was not shown to be within the scope of the driver’s employment to carry the deceased as a passenger and that the employer is not liable. I agree with the reasons expressed by Frost SPJ on this aspect and would add some comments of my own.

Whether or not the owner owed a duty to the deceased as passenger when the journey commenced at Henganofi—and on the evidence I do not think it is shown that the owner did—I find it extremely difficult to accept that a duty was owed by the owner to the deceased when he boarded the vehicle at Kamaliki. At that stage, the obvious risk of injury and the dilemma in which the deceased found himself had been caused by the continued and excessive drinking of the driver in the presence of the deceased but of which clearly the owner had no knowledge.

This is a case where there is no direct evidence of the driver’s authority to drive the vehicle nor to carry gratuitous passengers and the question is whether these authorities are implied in the circumstances established by the evidence. The first may I think be easily inferred; but it seems to me unreal in the circumstances to which I have referred to infer that the driver had the owner’s authority to carry the deceased from Kamaliki to Goroka as a gratuitous passenger or at all.

If one then accepts, as I do, the ratio of Twine’s case[dlxxvi]34, the claim against the appellant fails except to the extent of the statutory liability of $8,000.00.

I think it unnecessary therefore in this case to determine whether the standard of care to be expected from a driver may be varied by the passenger’s knowledge of a disability suffered by the driver. Compare Joyce[dlxxvii]35 and Roggenkamp[dlxxviii]36 on the one hand and Nettleship[dlxxix]37 on the other. Nor do I think it necessary to attempt to explain the differences which are said to exist between those who say that to establish the defence of voluntary assumption of risk “nothing will suffice short of an agreement to waive any claim for negligence” (Lord Denning MR. in Nettleship v. Weston[dlxxx]38) and those who regard the maxim available where a person having knowledge of the incapacity of the driver voluntarily becomes a passenger “thereby voluntarily accepting the risk . . .” (Walsh JA. in Sara v. Government Insurance Office of New South Wales[dlxxxi]39 ).

I agree with comments of Frost SPJ regarding damages and the order proposed by him.

MINOGUE CJ: I have had the advantage of reading the reasons for judgment of Frost SPJ and of the additional comments of Clarkson J I agree with them that this appeal should be allowed on the ground that it was not shown that any duty of care was owed by the appellant to the deceased Vari Kila. There is no evidence from which it could be inferred that the driver, Joseph Tomonoi, assuming him to be driving in the course of his employment at the time of the death of the deceased had any authority express or implied to give a lift to the deceased from Henganofi to Goroka and a fortiori from Kamaliki to Goroka (the last stage of the journey) when that driver was adversely affected by liquor. It was not shown that the driver was acting within the scope of his employment and indeed I would draw the inference that he was not.

I agree with my brother Frost that the learned trial judge could not be said to be wrong in refusing to uphold the defence of volenti non fit injuria. None the less the appeal must succeed.

As the liability of the appellant is limited to the amount for which it is entitled to be indemnified against claims under its third party policy, viz. $8,000.00, I agree with the reduction of the judgment against it to that amount and with the apportionment arrived at by my brother and thus in the order proposed by him.

I think it unnecessary to consider the argument advanced by the appellant that the damages awarded were excessive. Had it been necessary, for my part I would not have disturbed the amount arrived at by the learned trial judge.

Appeal allowed, judgment against the appellant reduced to the sum of $8,000.00, apportioned as to $5,500.00 to the respondent Largo Gerebi, $1,300.00 to Doris Vari, and $1,200.00 to Vari Vari, to be dealt with as in the judgement supra. The amount of the judgment against the respondent Tomonoi to remain unaltered.

Solicitors for the appellant: McCubbery, Train, Love & Thomas.
Solicitors for the respondents: W. A. Lalor, Public Solicitor.

[dxliii]Sections 6 (2) and 6 (3) provide:

(2)        Subject to the next succeeding subsection, for the purposes of a third-party policy and of a claim for the death of or bodily injury to a person caused by, or arising out of the use of a motor vehicle insured thereunder, a person, other than the owner, who is driving the motor vehicle, whether or not with the owner's authority, shall be deemed to be the authorized agent of the owner, and to be acting in relation thereto within the scope of his authority as such agent. 

(3)        If at the time when a claim referred to in the last preceding subsection arose the motor vehicle concerned was in charge of or being driven by a person for whose acts or omissions at that time the owner apart from the provisions of the last preceding subsection would not have been liable, the liability of the owner under that subsection shall be limited to the amount for which he shall be entitled to be indemnified against that claim under the third-party policy.

[dxliv](1950) 80 CLR. 292.
[dxlv](1948) 77 CLR. 39 per Dixon J, at p. 57.
[dxlvi](1969) 89 WN. (Pt. 1) (N.S.W.) 203.
[dxlvii](1968-69) 89 WN. (Pt. 2) (N.S.W.) 232 per Walsh JA., at p. 239.
[dxlviii][1946] 1 All ER. 202.
[dxlix](1946) 62 TLR. 458.
[dl](1957) 97 CLR. 36, at p. 57.
[dli][1946] 1 All ER. 202, at p. 204.
[dlii](1957) 97 CLR. 36, at pp. 62-63, Taylor J, at p. 68.
[dliii](1968-9) 118 CLR. 271, at p. 277.
[dliv][1946] 1 All ER. 202.
[dlv][1951] 2 KB. 266 per Asquith LJ, at pp. 275-6.
[dlvi](1946) 62 TLR. 458.
[dlvii](1968-9) 89 WN. (Pt.2) (N.S.W.) 232 per Walsh JA., at p.239.
[dlviii][1970] 1 WLR. 556 (Privy Council).
[dlix][1946] 1 All ER. 202.
[dlx](1951) 1 TLR. 789 (C.A.).
[dlxi](1969) 91 WN. (N.S.W.) 45.
[dlxii][1946] 1 All ER. 202, at p. 204.
[dlxiii](1948) 77 CLR. 39.
[dlxiv](1950) 80 CLR. 292.
[dlxv][1971] 2 QB. 691.
[dlxvi][1971] 2 QB. 691.
[dlxvii][1971] 2 QB. 691
[dlxviii](1969) 89 WN. (Pt. 1) (N.S.W.) 203, at pp. 207-8.
[dlxix](1971) 2 QB. 691.
[dlxx](1939) 1 KB. 509 per Asquith J, at p. 518.
[dlxxi](1971) 2 QB. 691.
[dlxxii](1948) 77 CLR. 39 per Dixon J, at p. 57.
[dlxxiii] [1973] PNGLR. 313.
[dlxxiv][1971] AC. 115, at p. 135.
[dlxxv][1970] AC. 166.
[dlxxvi][1946] 1 All ER. 202.
[dlxxvii](1948) 77 CLR. 39.
[dlxxviii](1950) 80 CLR. 292.
[dlxxix][1971] 2 QB. 691.
[dlxxx][1971] 2 QB. 691.
[dlxxxi](1969) 89 WN. (Pt. 1) (N.S.W.) 203.