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Malum v Egimbari [2008] PGNC 68; N3347 (22 April 2008)

N3347

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 606 OF 2004

BETWEEN:

ALBERT MALUM
Plaintiff

AND:

SENIOR SERGEANT RUSSELL EGIMBARI
First Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Lae: Kirriwom, J
2008: 22 April

DAMAGES – negligent driving causing damage to vehicle – Issue of vicarious liability raised – whether state is vicariously liable for offence committed outside scope of employees employment – issue of liability not established – quantification of damages cannot be done when liability is not established – action dismissed

Cases cited:
Aimon Aure & Ors v. Captain Peter Boko & The State [1996] PNGLR 85

Counsel:
S. Toggo, for the Plaintiff/Respondent
V. Culligan, for the Defendants/Applicants

RULING

22 April, 2008

1. KIRRIWOM, J: The plaintiff sued the defendants for damages for the damage caused to his motor vehicle by the negligent driving of the first defendant as servant of the second defendant. The fact that the first defendant is a servant of the second defendant and that the second defendant is vicariously liable for his actions incurred in the course of his employment is not denied. The pleadings however fail to state whether at the material time of the accident the first defendant was acting ie. Driving the offending vehicle within the scope or course of his employment.

2. The matter has come before me by direction of Kandakasi, J made on 15 June 2006 for settlement by way of assessment of damages based on the evidence of the first defendant’s conviction and fine by the District Court for driving without due care and attention. But that direction failed to acknowledge and consider the fact that there are two defendants, one which is the second defendant being sued in its vicarious capacity, and the only way the second defendant can legally become or be made a party to this proceeding is if the first defendant was negligent in his actions while performing his duty. The fact that the first defendant is a servant of the second defendant which is admitted does not make the second defendant automatically liable for every action of the first defendant including those committed or incurred in his personal and private capacity.

3. The facts in the statement of claim show that at the material time the first defendant was driving a Toyota 10 seater 1994 model registration number LAI 016 and white in colour at the intersection of Seventh Street and Huon Road near Food Mart Lae when he collided into the rear of the plaintiff’s motor vehicle a Mazda diesel 4x4 double cab registration number LAL 686 blue in colour driven by the plaintiff himself. The second defendant had denied that it was the owner of the vehicle driven by the first defendant. This distinction was not mentioned by the plaintiff or the defendants. It would seem to me that this important distinction is becoming less and less significant as more and more individuals continue to hold the view that the State has bottomless pit full of money with which it can pay damages for every negligent act or omission of those in its employ irrespective of whether such negligent acts are done or omitted in the course of performing their duties or not.

4. In Aimon Aure & Ors v. Captain Peter Boko and The State [1996] PNGLR 85, Woods J (as he then was) awarded exemplary damages against the first defendant personally who was then the commanding officer of the combined State Forces involved in the operations in Chimbu where he ordered a raid of the plaintiffs’ village in search of a lost Defence Force weapon which was not part of the scheme of the operation of the Security Forces. His Honour said:

"This also lends support to the findings of the coroner that the whole operation of the raid may have been a private vendetta by the Defence Force because of their own incompetence in the care and security of their own weapons and could have involved a criminal conspiracy by the officers concerned including the First Defendant. The evidence before the coroner and before this court was that the raid was done to search for a lost Defence Force weapon, a weapon that appears to have been lost in Moresby or somewhere else in the country but not in Chimbu Province. This story has not been refuted by the State and as I have already noted, Captain Boko did not attend before the Coroner and nor before this Court to give his version of the events. I must therefore suggest that Captain Peter Boko should be investigated by the State and that disciplinary action should be taken against him in the Defence Force because of his criminal actions over and above his normal duty responsibility in leading this illegal raid and because of what he has cost the State. It is quite clear that he is not a fit person to be an officer in the Defence Force. Further I will not award exemplary damages against the State because I find that the State should not be liable for the personal aberrations of its servants but I will make an award of exemplary damages against Captain Peter Boko personally in the amount of K71, 500 being at the rate of K500.00 per claimant."

5. In this case, there is no suggestion at all that the first defendant was acting in the course of his employment and the vehicle he was using is not even State-owned. There is no suggestion also that the first defendant was performing his duty using his private vehicle.

6. In the circumstances I will not hold the State liable for any damages owing to the plaintiff. Whatever damages incurred that is a matter for the first defendant to wear. In this regard I question the soundness of the direction given for quantification of damages when the issue of liability has not been properly adjudicated and determined. There appears to have been some argument raised by the first defendant of contributory negligence on the part of the first defendant. Bearing in mind that the standard of proof in civil is not the same as in criminal prosecution, I would think that the first defendant had not been given a fair opportunity to defend himself in this case.

7. Consequently I dismiss this action on the assessment of damages brought before me by way of court direction as being misconceived and a misapprehension on both facts and law. Justice will go begging to allow the error to remain without being remedied and I have power under section 155(4) of the Constitution to invoke this all-embracing power of the Constitution to do justice in this case. I order this matter to return to the list for proper trial on the issue of liability. Costs shall be in the cause.

Daniels & Associates Lawyers: Lawyers for the Plaintiff
Acting Solicitor-General: Lawyers for the Defendants