national court of justice

william mel

v

coleman pakalia;
joseph kupo – commissioner for police; and
independent state of papua new guinea

waigani: gavara-nanu j

6, 8 August; 13, 17 October 2003

DAMAGES – Claims for damages under Wrongs (Miscellaneous Provisions) Act, ss 25 and 26 - Persons other than those mentioned in s 26 of the Wrongs (Miscellaneous Provisions) Act, have no standing to bring actions under s 25 of the Act – Common law principle of vicarious liability cannot apply where statutory provisions regulate such claims.

Facts

The plaintiff obtained a default judgment for K20,000 in damages against the defendants. The matter went before the court for assessment of damages. The plaintiff makes this claim as a result of the death of a passenger who was traveling in his PMV bus whilst driving. The plaintiff claimed that the vehicle driven by the first defendant ran into the rear of the bus he was driving and as a result the deceased was thrown out of the bus upon impact and died instantly. The plaintiff therefore claims that both the first and second defendants are vicariously liable for the death of the deceased under the relevant provisions of the Wrongs (Miscellaneous Provisions) Act. 

Held

1.	The plaintiff must first establish that his action is proper and legal and prove his claims before any damages can be awarded to him: see Obed Lalip and Ors v Fred Sekiot and The State N1457 and Komaip Trading v George Wagulo and The State [1995] PNGLR 165.

2.	The plaintiff does not qualify under s 26 of the Wrongs (Miscellaneous Provisions) Act to bring this action and therefore has no cause of action against the defendant.

3.	Case dismissed as not disclosing a reasonable cause of action pursuant to O 12 r 40 of the National Court Rules.

Papua New Guinea cases cited
Inabari & Another v Sapat & The State [1991] PNGLR 427.
Komaip Trading v George Wagulo & The State [1995] PNGLR 165.
Obed Lalip & Ors v Fred Sekiot & The State N1457.
Pawa Kombea v Semal Peke [1994] PNGLR 572.

Counsel
P Parkop, for the plaintiff.
J Juliah, for the respondent.

17 October 2003

Gavara-nanu j. The plaintiff is claiming K20,000.00 in damages against the defendants.
The plaintiff's claim is as a result of an accident which he says was caused by the first defendant, who was a policeman. The plaintiff says he was driving a PMV bus and was traveling along Kaubebe Street towards the old Boroko market when the vehicle driven by the first defendant ran into the rear of the bus he was driving. The plaintiff says, the deceased, one Raus Pepe who was a passenger in the bus was thrown out of the bus upon impact and died instantly. It is alleged by the plaintiff that the first defendant was under the influence of liquor and was reckless in his driving.

The plaintiff says he took the body of the deceased to Mt Hagen where it was buried. He says, he paid for the coffin and other funeral expenses including airfares for three people. He also claims for the hire of transport from Mt Hagen town to the village and for the costs of feeding the mourners at the village. He also claims K12,000.00 which he says he and his relatives paid to the relatives of the deceased as compensation for the death of the deceased. He says he paid that money because he was under pressure to make such compensation payment. The plaintiff also says that it was customary for him to pay all those expenses including the compensation because the deceased died while he was a passenger in the bus he was driving. 

The plaintiff claims that the second and the third defendants are vicariously liable for the death of the deceased under the relevant provisions of the Wrongs (Miscellaneous Provisions) Act.

Because the plaintiff did not specify any provisions in the Wrongs (Miscellaneous Provisions) Act, in his statement of claim, I recalled the lawyers on 13 August 2003, and sought their assistance, in particular the plaintiff's lawyer, to clarify as to whether the plaintiff's claims were based on s 25 of the Wrongs (Miscellaneous Provisions) Act.
Mr Parkop submitted that the claims can be based on that section but he further submitted that if the plaintiff cannot claim under s 25 of the Wrongs (Miscellaneous Provisions) Act, then the common law principle of vicarious liability should apply, thus making the second and third defendants liable for the actions of the first defendant.
The claims under s 25 of the Wrongs (Miscellaneous Provisions) Act, can only be made for the benefit of the wife, husband and the child, or the brother, sister, uncle or aunt of the deceased and can only be made by and in the name of the executor or the administrator of the person deceased. This is made quite clear by s 26 of the Act. See, Inabari and Another v Sapat and The State [1991] PNGLR 427.

Ms Lilih submitted that common law principle of vicarious liability does not apply because these claims are totally governed and regulated by the statute.
It is clear that the plaintiff's claims are based on s 25 of the Wrongs (Miscellaneous Provisions) Act, and as such, they can only be for the benefit of the persons mentioned in s 26 of the Act. The plaintiff is not one of those persons mentioned in s 26 of the Act. It is clear from the evidence that the plaintiff voluntarily took the body of the deceased to Mt Hagen and paid for the funeral and other related expenses including the K12,000.00 compensation to the relatives of the deceased. He did that because he felt responsible for the death of the deceased. 

Unfortunately, he is not one of the persons named in s 26 of the Act, and therefore he cannot invoke s 25 of the Act to make claims against the defendants for the death of the deceased.

The submission by Mr Parkop that, if the plaintiff is excluded by s 26 of the Act, then the common law principle of vicariously liability should apply, is in effect asking this Court to enlarge the scope of s 26. Such submission cannot be sustained because if this Court did that, it would effectively be legislating, which is not the function of this Court. The Court's task is to interpret and give effect to s 26.

Further more, the common law principle of vicarious liability if applied would be in direct conflict with s 26, in which case the statute must prevail and be given effect to over the common law.

The plaintiff in this case obtained a default judgment against the defendants because the defendants failed to file a defense against the plaintiff's claims. Thus the matter comes before me for assessment of damages. However, the claims must be valid and legal before any damages can be assessed and awarded to the plaintiff. The fact that the plaintiff had obtained a default judgement against the defendants does not mean that he is automatically entitled to damages against the defendants. He must first establish that his action is proper and legal and prove his claims before any damages can be awarded to him. See, Obed Lalip and Ors v Fred Sekiot and The State – N1457 and Komaip Trading v George Wagulo and The State [1995] PNGLR 165. 

Clearly, the plaintiff does not qualify under s26 of the Wrongs (Miscellaneous Provisions) Act to bring this action. In other words, he lacks the locus standi and thus has no interest in the matter. 

The end result is that the plaintiff has no cause of action against the defendants. The proceedings must therefore be dismissed as not disclosing a reasonable cause of action pursuant to O 12 r 40 of the National Court Rules. The proceedings are also an abuse of process.

There is one other observation I would like to make. It is trite law that even though a default judgment was obtained by the plaintiff, he still has to prove his claims by adducing supporting evidence. In this case the plaintiff has not adduced any evidence to prove his claims, for instance, he has not produced the tickets which he says he bought for three people to travel to Mt Hagen. He also has not produced any receipts of the monies he says he spent on all the funeral and other related expenses. He also says that according to his custom he had to pay compensation to the relatives of the deceased, but he has not called evidence to show that he has such custom. In any case, the plaintiff also has not pleaded such a custom to enable him to place any reliance on it. See, Pawa Kombea v Semal Peke [1994] PNGLR 572. These are as serious gaps in the plaintiff's case.

It follows that the plaintiff's claims must be dismissed.

The plaintiff will pay the defendants' costs.

Lawyer for the plaintiff: Powes Parkop Lawyers.
Lawyers of the defendants: Solicitor General.