PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 415 OF 2003

BETWEEN

ANDREW KEWA
Plaintiff

AND

JOHNNY LUS
First Defendant

AND

SECURIMAX SECURITY LIMITED
Second Defendant

Lae: Manuhu, J
2007: 7 & 14 March

DECISION

TORT – Duty of driver to take reasonable care – breach of duty – liability for breach – damage directly caused by breach – value of PMV bus – loss of income. 

Cases Cited
No Cases Cited

Counsel
P. Ousi, for the Plaintiff.
No appearance for Defendant

14 March, 2007

1. MANUHU, J.: The Plaintiff alleges that on 26 March 2002, the Second Defendant’s motor vehicle was driven at an excessive speed by the First Defendant who lost control of it and, thereby, collided with the Plaintiff’s vehicle which was stationery on the side of the road.

2. The hearing was conducted ex parte due to the withdrawal of counsel for the Second Defendant which, the Court was advised, had been sold to another security firm. The First Defendant did not appear to defend himself. 

3. Three witnesses gave evidence on the collision. Jackson Numbi was the driver of the Plaintiff’s motor vehicle, a 25 seater PMV bus, registration number P586P that operates between Lae and 10 Mile. He testified that he was driving to the city when he had to make a stop at a usual parking spot on the side of the road to allow a passenger to get off. The bus was thus stationery when he saw the Second Defendant’s vehicle from the opposite direction which was travelling at an excessive speed. As it neared the parked bus, the driver appeared to lose control of it and the oncoming vehicle collided with the stationery bus. The bus was extensively damaged and was ‘written off’.

4. Jackson’s evidence is supported by two serving policemen’s evidence. They are Sergeant Wibom and Constable Mark Nomane. The summary of their evidence is that they were travelling in a police flat top Toyota Dyna when the accident occurred. They are eye witnesses. The PMV bus was on a parallel parking at a safe distance of about 2 to 3 metres from the road when the Second Defendant’s vehicle, an armoured vehicle, travelling at "a very high speed", collided with the PMV bus. They stopped to observe the accident but left after the arrival of the Traffic Police.

5. The Court is only required to be satisfied on the balance of probabilities. In the absence of the defendants, the Plaintiff’s case is essentially unchallenged. Unless a legal or factual loophole appears in the Plaintiff’s case, a judgment in the Plaintiff’s favour is very likely. 

6. In the context of this case, every driver is saddled with the duty to exercise reasonable care for other road users. A driver’s failure to observe that duty of care will expose him to civil liability for any damage or harm caused as a direct result of the failure to take reasonable care. In addition, the driver’s employer is vicariously liable for the same tortuous act if the employee driver was driving in the course of his employment. 

7. In this case, the damaged PMV bus was parked at a safe distance of 2 to 3 metres from the road at the time of the collision. The PMV bus is exonerated from blame. From eye witness’s accounts, the driver of the oncoming vehicle was at fault. He drove too fast and lost control of his vehicle. He failed to observe his duty towards other road users. 

8. Having regard to the facts and the law, the Court is satisfied that the First Defendant was negligent when he drove at an excessive speed and lost control of the Second Defendant’s vehicle which ran into the Plaintiff’s PMV bus causing extensive damage. The Court is further satisfied on the evidence available that the First Defendant drove negligently in the course of his employment with the Second Defendant as a driver and or security officer.

9. In the circumstances, the Court finds both defendants liable.

10. In relation to apportionment of damages, the Plaintiff is claiming loss of income from the date of the accident to the hearing of the proceeding; pre-accident value of the PMV bus; interest and costs. 

11. The evidence on the pre-accident value of the vehicle was given by Tokana Hasavi of Ela Motors in Lae. The pre-accident value of the vehicle is K50,000.00. In the absence of any other contradictory evidence, the Court accepts the evidence of Tokana on the pre-accident value of the PMV bus.

12. On loss of income, the Plaintiff’s vehicle was duly registered and insured as a PMV. From the figures provided by the Plaintiff, his average loss of income per month is K4,320.67. In the absence of any other evidence, the Court must accept the Plaintiff’s calculations. He should know what he earned. The period from the date of the accident to the final hearing of the case is 59 months and 12 days. The Plaintiff’s total loss of income stands at K254,919.50. Once again, in the absence of contrary evidence, no basis exists for the Court to entertain any doubt and to find otherwise.

13. The Court ultimately finds for the Plaintiff in the sum of K304,919.50 plus 8 per cent interest from the date of the institution of the proceeding, as well as cost which, if not agreed, shall be taxed.

Orders accordingly.

_________________

Warner Shand Lawyers: Lawyers for the Plaintiff