N4946

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS. 1062 OF 2003

BETWEEN:

MARSHALL KENNEDY
Plaintiff

V

COCA COLA AMATIL (PNG) LIMITED
First Defendant

AND:

JOSHUA YAMPA
Second Defendant

Wabag: Gauli, AJ
2011: 10, 12, 25 August
02, 25 September

NEGLIGENCE – Motor vehicle collision – Whether plaintiff proved on the balance of probabilities that the driver of the other vehicle was negligent – Driving at excessive speed when approaching the sharp corner – Failing to slow down – Failure in applying brake when negotiating the corner – Driving onto the far side of the opposite lane of the oncoming vehicle – Resulting in collision.

VICARIOUS LIABILITY – Employer vicariously liable for the negligent driving of the employee, agent or servant.

DAMAGES – Complete loss of the bus – Loss of financial earnings from the bus

DAMAGES – Special damages – expenses before and after the accident

Facts

There was a motor vehicle collision between the plaintiff's bus and the first defendant's truck driven by the second defendant. The plaintiff's bus sustained damages beyond repair. Plaintiff sued the defendants claiming damages for negligence. Defendants denied liability on the grounds that there is insufficient evidence that second defendant drove negligently and that the plaintiff's driver was negligent. As to the assessment of damages, defendants asserted that even if they are liable, the plaintiff should be awarded with nothing due to the negligence of the plaintiff's driver.

Held

1. Where the evidence for the plaintiff is unchallenged by the defendant, the Court would usually accept the evidence for the plaintiff unless that evidence is so unreliable to be believed or accepted.

2. For the plaintiff to be entitled to economic loss he must show that he has complied with Taxation laws.

Cases Cited
Papua New Guinea Cases

Felix Kua v Clement Pakite & 1 Or (2010) N4102
Daniel Occungar v Luke Kiliso & 2 Ors (2010) N4103
Longan & 58 Ors v The State (1995) N369
Steven Kirino & Ors v The State [1998] PNGLR 351
MVIT v Pupune [1993] PNGLR 370
PNGBC v Jeff Tole [200] SC 694
Graham Mapa v PNG Electricity Commission [1995] PNGLR 171
Andrew Kewa v Securimax WS /2003, 2007

Overseas Cases

Century Insurance Company Ltd v Northern Ireland Transport Board [1942] A.C.501
Livingstone v Rawyars (1880) 5 App Case 25
Milner v Minister for Pension (1047) 2 AII ER 373
United Africa Company Ltd v Saka Owoade [1957] 3 All ER 215, [1955] A.C. 130

Counsel:

Mr. P. Kak, for the Plaintiff
Mr. M. Baiya, for the Defendant

JUDGEMENT

26th September, 2011

1. GAULI, AJ: This is a trial on liability and Damages. On 11th of November 2002 the plaintiff's 15 Seater Toyota Hiace PMV bus with registration number P811W, blue in color, driven by his driver Persoban Kiginala and the Isuzu Truck with registration number HAH 816, owned by the first defendant, Coca Cola Amatil (PNG) Limited, driven by its employee the second defendant, came into collision along the Okuk Highway.

2. The Defendants and their lawyer failed to appear in Court on 25 August for submission. I have heard the submissions from the plaintiff's counsel. I adjourned the proceedings to 2nd of September for the defence lawyer to file his submissions and his response to the plaintiff's submission. The defence counsel has provided the written submission.

EVIDENCE FOR THE PLAINTIFF

3. Plaintiff called 4 witnesses, namely Marshall Kennedy (Plaintiff), Persoban Kiginala (driver), David Karape (registry clerk at Wabag District Court) and John Lakati, the Police Investigation Officer.

4. Mr. Marshall Kennedy (1st Witness): His evidence is that he bought the said 15 seater bus on 31st January 2001 valued at K62,000.00 from Ela Motors in Mt. Hagen and was issued with a PMV license No. 71339 on 29 January 2002. He deposited K20,000.00 and obtained a loan of K42,000.00 from the First Investment Finance Limited and purchased the bus. At the time of the accident on 11 November 2002, the bus had a valid Third Party Insurance with the Motor Vehicles Insurance and the Registration Certificate, both been issued on 29 January 2002. The bus was operating between Porgera in Enga Province and Mt. Hagen in the Western Highland Province making daily earnings of K520.00 (20.00 x 13 passengers x 2 trips) on return trips. Three days after the accident, he transported the damaged bus on a semi-trailer to Ela Motors in Mt. Hagen for repairs. He paid K750.00 for transporting the bus. He was told the damage was beyond repair. He left the bus at Ela Motors yard in Mt. Hagen unrepaired to this day.

5. Mr. Persoban Kiginal (2nd Witness): His evidence is that he was the driver of the plaintiff's bus. On 11th of November 2002 he was driving the said bus from Laiagam to Porgera at about 7.10pm with less than 10 passengers on board. At Kuimas village he was about to negotiate a sharp corner, when the Coca Cola truck approaching at excessive speed in the opposite direction, turned abruptly on to his lane and collided into the bus. The bus was damaged beyond repair. The Coca Cola driver was charged and convicted of the offence by the Wabag District Court. At the time of the accident he had a valid driving license, expiry date been 18/07/2003.

6. Mr. David Karapen (3rd Witness): He gave evidence that he is the Clerk of Court for Laiagam District Court. Since there is no Magistrate in Laiagam he is currently attached to Wabag District Court as Registry Clerk for Traffic cases for a period of 11 years now. On 26th of March 2003 Joshua Yanda (2nd Defendant) was convicted by Wabag District Court for the offence of negligence driving, contrary to s. 17(1) of the Motor Traffic Act.

7. Mr. John Lakati (4th Witness): He is the police investigation officer. He investigated the said accident. He attended the scene and interviewed both drivers involved in the accident and found that Joshua Yanda (2nd Defendant) was at fault because:

(i) He drove at excessive speed when attempting to maneuver a corner,

(ii) He allowed his truck to go off to his left side lane and when he attempted to bring the truck back to the road he drove over to the opposite lane and collided with the oncoming bus,

(iii) Failed to apply break when negotiating the corner.

8. The accident would not have occurred had Joshua Yanda slowed down and applied break when negotiating the corner. He charged Joshua for negligent driving and was convicted on 26th March 2003 by the District Court in Wabag.

9. The sketch plan of the scene as per the police accident report illustrated that the defendant's vehicle went off the road to his far left lane as he went passed the first corner. Then he came back onto the road but then drove straight onto the far side to the opposite (right) lane on which the plaintiff's bus was travelling resulting in the collision. Plaintiff tendered some photographs of the two vehicles which showed that the impact was on the right front part of the bus and the left side of the defendant's truck.

EVIDENCE FOR THE DEFENCE

10. Mr. Baiya for the defendants informed the Court that defendants will not call witnesses.

BURDEN OF PROOF

11. The burden of proof in civil cases is on the balance of probabilities, which is well established in Milner v Minister for Pension (1047) 2 All ER 373 at p. 373, that:

"It must carry a reasonable degree of probability but not as high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not' the burden is discharged but if the probabilities are equal, it is not".

12. The defence submitted that there is no proof that the second defendant was charged and convicted of negligent driving under section 17(1) of the Motor Traffic Act. The evidence for the plaintiff is that the second defendant was charged under section 27 (1) of the Motor Traffic Act, which the offence for failing to pay fare. He further submitted that there was no certificate of conviction tendered to court by the plaintiff or by the Clerk of Court of the District Court as required by ss. 45 & 47 (4) of the Evidence Act, respectively. Therefore the second defendant was never charged nor convicted of negligence or any other offence under the Motor Traffic Act.

13. I would agree with the submission by the defence had the defence called a witness or filed an affidavit to rebut the evidence of the plaintiff. The s. 27 (1) of the MTA may have been miss-typing of s.17(1) of the MTA because there is no Sub-Section (1) in s. 27 of the MTA. I am satisfied on the balance of probabilities that the second defendant was charged for negligent driving and convicted of that offence by the District Court, despite the certificate of conviction not been tendered by an authorized officer, pursuant ss.. 45 and 47 (4) of the Evidence Act.

14. The plaintiff submitted that the plaintiff has discharged the civil burden of proof that the defendants are liable as there is no evidence from the defendant.

The only evidence before this Court is that of the Plaintiff. The evidence for the plaintiff is unchallenged. I am satisfied on the balance of probabilities that the plaintiff has discharged the civil burden of proof. Where plaintiff's evidence is unchallenged the Court would usually accept plaintiff's evidence unless that evidence is so unreliable to be believed or accepted. There is nothing before me to disbelieve the evidence presented for and on behalf of the plaintiff. In Steven Kirino & Ors v The State [1998] PNGLR 351, Sawong J, said at p 353:

"The defendant did not file any affidavit evidence in reply nor did it bother to call any other evidence to dispute or contradict the evidence of the plaintiffs. The evidence fro the plaintiff, therefore, stands undisputed and undestroyed. It follows that I accept the evidence of the plaintiff."

ISSUES:

1. Whether or not the second defendant was negligent

2. Whether or not the plaintiff's driver was contributory negligent

3. Was the first defendant vicariously liable

4. What was the value of the bus at the time of the accident.

ISSUES NO. 1: Whether or not the second defendant was negligent.

15. From the evidence of the plaintiff, the second defendant was on high speed while negotiating the corner and he went off the road to his left side. In an attempt to bring the truck back to the road he went over to the far side to the right lane of the on-coming bus of the plaintiff and both vehicles came into collision. The right front part of the bus collided into the left side of the defendant's truck. The collision occurred on the far left side of the lane on which the bus was travelling.

16. The defence counsel submitted that there is no evidence showing that the second defendant was charged and convicted by the District Court for an offence under the Motor Traffic Act as there is no certificate of conviction from the District Court.

17. The defence has not called the second defendant or any other witness to show that second defendant had not been charged and convicted of any offence under the Motor Traffic Act. There is also evidence before me that the second defendant was charged for negligent driving and that he was convicted by Wabag District Court. Although there is no certificate of conviction tendered by the authorized officer, namely the Clerk of Court of the Wabag District Court, as required by section 45 of the Evidence Act, I am satisfied on the balance of probabilities, based on the plaintiff's evidence, that the second defendant was charged and convicted by the District Court for negligent driving under section 17 (1) of the Motor Traffic Act.

18. The present case is similar in nature to the case of Felix Kua v Clement Pakiten & David Via (2010) N4102, a tractor owned by the 3rd defendant (NBPOL) and driven by the first defendant and the plaintiff's PMV bus, were travelling in the same direction on a straight road. The PMV bus tried to over-take the tractor when suddenly the tractor turned to its right into the way of the over-taking PMV bus and resulted in the collision. Defendants denied liability but the Court found the driver of the tractor negligent.

19. From the evidence as presented before me, I find on the balance of probabilities that the second defendant was negligent in that he failed to properly control the truck while negotiating the sharp bend whereby he drove on to the lane of the on-coming bus resulting in the collision. The evidence for the plaintiff being undisturbed, I find it more probable that the second defendant was negligent.

ISSUE No. 3: Was the First Defendant vicariously liable

20. It is a trite law that the master or the employer is vicariously liable for the wrongs committed by the servant. The second defendant was the driver employed by the first defendant. He was driving the truck owned by the first defendant. There can be no doubt that the second defendant was acting in the course of his duties and responsibilities in the interest of his employer the first defendant. There is nothing before this Court to suggest that the second defendant was on his own unauthorized run at the time the accident occurred.

21. Plaintiff submitted that the evidence for the plaintiff is undisputed. The plaintiff has discharged that the first defendant is vicariously liable for the wrong doing of the second defendant.

22. Defence submitted that for the first defendant to be vicariously liable, the plaintiff must first plead that the second defendant was convicted of an offence of negligent driving and as a result the first defendant is vicariously liable. In Paragraph 4 of the Statement of Claim, the plaintiff did not adequately plead that the second defendant was convicted and so plaintiff cannot plead vicarious liability on evidence. He referred to the Supreme Court decisions in MVIT v Pupune [1993] PNGLR 370 and PNGBC v Jeff Tole [2002] SC 694, which stressed the purposes of pleading as follows:

1. They furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it.

2. They define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and

3. They give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into Court"

Paragraph 4 of the plaintiff's statement of claim is in this term:

4. "At all material times the Second Defendant was acting as an agent or servant of the First Defendant where the first defendant is vicariously liable for tortuous conduct of the second defendant."

23. The plaintiff's claim here clearly states that the second defendant being an agent or servant of the first defendant, renders the first defendant to be vicariously liable. In my view, even though the plaintiff did not specifically plead that the second defendant was convicted of an offence under the MTA for the first defendant to be held vicariously liable. I have found on the balance of probabilities that the second defendant was charged and convicted of an offence under the Motor Traffic Act by the District Court. And I find that the plaintiff has adequately and sufficiently pleaded the vicarious liability of the first defendant.

24. Defence submitted that the bus was damaged during the currency of its insurance cover the plaintiff was offered K14,7000.00 by the Workers Mutual Insurance (PNG) Ltd, but the plaintiff rejected to accept the offer. Common sense would dictate that the plaintiff would not reject that offer from the WMI. And the plaintiff has taken no actions against the WMI.

25. If the defence is of the view that the plaintiff did not reject the offer from the WMI, then it is the defence to provide by evidence that the plaintiff has actually accepted and received that payment. The defence failed to prove that I am satisfied on the balance of probabilities that the plaintiff has refused to accept that payment from the WMI and that the plaintiff did not lodge any claims against the WMI. The plaintiff refused to accept the payment because he considered that the amount offered was insufficient, compared to the value of the bus and period of time it was in use before the accident.

26. Having found that the second defendant being negligent in the manner in which he drove the truck, there can be no doubt that the first defendant is vicariously liable for the negligence of its servant, the second defendant. The employee owes a duty of reasonable care in the performance of his duties and responsibilities so much so that he does not put the employer liable for his negligent act. In Century Insurance Co. Ltd v Northern Ireland Transport Board [1942] A.C. 509 at 519, Lord Wright expressed the view that:

"… the duty of the workman to his employer is to conduct himself in doing his work as not negligently to cause damage either to his employer himself or his property or to third persons or their property and thus to impose the same liability on the employer as if he had been doing the work himself and committed the negligent act. This m ay seem too obvious as a matter of common sense to require either argument or authority.

27. And in United Africa Company Ltd v Saka Owoade [1957] 3 All ER 216, [1955] A.C. 130, a transport contractor was held liable to the owner of the goods stolen by his two servants who were convicted of stealing the goods entrusted to them. The privy Council in holding that the conversion of the goods were done within the course of the servant's employment said at page 144.

 "There is in their Lordships' opinion no difference in the liability of a master for wrongs whether for fraud or any other wrong committed by a servant in the course of his employment".

28. In Daniel Occungar v Luke Kiliso & Ors (2010) N4102 (above), the defendant's denied liability but the Court having found the first defendant (the driver of tractor) negligent, held the third defendant New Britain Palm Oil Ltd, the owner of the tractor, vicariously liable.

I find the first defendant vicariously liable for the negligence of its employee, servant or agent, the second defendant.

ISSUE No. 4: What was the value of the bus at the time of accident.

29. The plaintiff bought the bus in January 2001 at the value of K62,000.00 and was involved in an accident in November 2002. Just under two years on the road. The damage was beyond repair. The bus was insured with the Workers Mutual Insurance (PNG) Limited at the time of the accident and the WMI offered to pay K14, 700.00 but the plaintiff refused to accept it. No doubt that the value of the bus has depreciated over the period of 22 months of its use. There was no proper valuation of the bus presented by the plaintiff or the defendants.

30. The counsel for the plaintiff submitted that 35% should be allowed for depreciation in line with the decision in Langan & 58 Ors v The State (1995) N369 and claimed K40,000.00 for the loss of the bus. There was no cases cited to me by the defence on the question of depreciation, nor was I able to cite one.

31. Having considered the bus was in use for only about 22 months, I would adopt the decision in Langan & 58 Ors v The State (above) and allow 35% depreciation as being reasonable. I award K40,000.00 being the value for the loss of the bus.

DAMAGES

32. The damages the plaintiff claims are (a) the value of the bus, (b) economic loss, (c) special damages and (d) interest. The purpose of damages is to put the injured party nearly as possible to the same position as he would have been if he had not sustained such a damage from the person who caused the damage. In Livingstone v Rawyars Coal (1880) 5 App Case 25 at 39, Lord Black Burn said:

"Where an injury is to be compensated by damages, in setting the sum of money to be given… damages, you should nearly as possible, get at that sum of money which will put the party who has been injured or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting compensated…"

(a) VALUE OF THE BUS

33. Under this head of the damage, the plaintiff claimed for the complete loss of the bus. I have already determined this damage while discussing the ISSUE No. 4 above. In adopting the decision in Langan v 58 Ors v The State (supra), I allowed 35% depreciation and awarded K40,000.00 damages for the loss of the bus as claimed by the plaintiff.

(b) ECONOMIC LOSS

34. The plaintiff was operating his PMV bus between Porgera and Mt. Hagen and was generating a daily income of K520.00 x 13 passengers x 2 (return). However he only claimed an average daily taking of K460.00 less expenses of K213.00, leaving a profit of K247.00 per day. Plaintiff is of the view that he would have used the bus for another 28 months. And he would have earned another K165,984.00 (being K247.00 x 24 days/month x 28 months).

35. Economic loss and loss of earnings are forms of business activities. As such, Justice Salika said in Paulus Kei & Anor v The State [2004] N743 said that plaintiff must show that he has been paying income tax as he was running the business. And in Graham Mappa v PNG Electricity Commission [1995] PNGLR 171 at 172, Justice Woods (as then he was) said that damages in law must include adherence to the law, such as Taxation Laws.

36. Plaintiff submitted that economic loss aspect is supported with the case of Andrew Kewa v Securimax, WS /2003, 2007. The plaintiff's evidence is clear that he duly complies with taxation laws by paying his tax. Therefore plaintiff is entitled for economic loss.

37. Defence submitted that although the plaintiff tendered tax returns, they do not mean anything until the plaintiff shows evidence of business records showing profits and loss for taxation purposes accompanying the tax returns. Therefore the claim for economic loss be dismissed.

38. It is trite law in our jurisdiction that for the plaintiff to be entitled to economic loss, the plaintiff must show that he has complied with the Taxation Laws. I find that the plaintiff has satisfied that requirement by paying taxes to IRC. Though he has not produced any business records such as ledger books showing profits and or loss for taxation purposes, I am satisfied that he has complied with the Taxation Laws. He is therefore entitled to economic loss. In the absence of any business records, I would award economic loss of K1,000.00 per month.

39. I need not over-look the fact that vehicles do encounter mechanical break downs, due to wear and tear over long period of use and when that occurs the vehicle would be off the road for quite some times. It is therefore impossible that the plaintiff would have the bus in full operation for the next 28 months without break downs. I would allow economic loss for 12 months and that effectively means an award of K12,000.00 as a total economic loss.

(c) SPECIAL DAMAGE

40. The plaintiff claims a sum of K750,000.00 for hiring a semi-trailer and transporting the damaged bus to the Ela Motors workshop in Mt. Hagen for repairs. However the damage was beyond repair. There is no dispute over this claim by the defence. And I award special damage to the plaintiff in the amount claimed.

(d) INTEREST

41. The plaintiff claims interest on damages. Under section 1 of the Judicial Proceedings (Interest on Debts and Damages) Act, Chapter 52, the plaintiff is entitled to an interest of 8% per year on damages. The Court has the discretion to award interest either in whole or in part on the damages for the period from the date the cause of action arose to the date of judgment. Using my discretion, I award the interest to be on the total judgment awarded for the period from 29 July 2003 to 27 September 2011, a total of 8 years, which is calculated to be K33,760.00.
SUMMARY

42. I award damage for the plaintiff as follows:-

 (a) Value of the Bus  - K40,000.00
 (b) Economic Loss    - K12,000.00
 (c) Special Damage   - K 750.00
 (d) Interest               - K33,760.00
 = K86,510.00 

43. And I enter judgment in favour of the plaintiff in the sum of K86,510.00 with costs to be taxed.

____________________________________________
Paulus Dawa Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendants