N6332

	PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 715 OF 2013

BETWEEN:

	JACOB KERENGA BOMAI	
First Plaintiff

AND:
KORUGL ANGRAS TRADING
Second Plaintiff

AND:
JOHN TAKELA
First Defendant

AND:
SIX K LIMITED
First Defendant

Kundiawa: Liosi, AJ
2016: 9 March & 30 May

CIVIL PRACTICE AND PROCEDURE  – Negligence – Motor Vehicle Collision – Whether the plaintiff proved on the balance of probabilities that the driver of the other vehicle was negligent – Vicarious liability – Whether employer vicariously liable for negligence of employee – Circumstantial evidence – 

A collision between the plaintiff’s Landrover vehicle and the defendant’s Isuzu twin steer truck driven by an employee the first defendant resulted in damage to the Landrover. The plaintiff sued the defendant's claiming damages for negligence. The defendant's denied liability on the basis that the driver who was the first defendant was on an unauthorised trip therefore the second defendant could not be vicariously liable as he was acting outside the scope of his employment. 

Held 

1.	The driver of the Isuzu twin steer truck who was the first defendant was found to be driving in the course of his employment. That was sufficient to hold the second defendant as the employer vicariously liable.

2.	Damages are to be assessed. 

Cases cited

Anis v. Taksey (2011) 4468
Otto Benal Magiteu v. Bilding Tabai (2008) N340 
Roka Coffee Estate Pty Ltd v. Gerebi (1973) PNGLR 486
The State v. Tom Morris PNGLR 493
Wango v. Anda Kundi and The State (1992) PNGLR 45 

Overseas Cases cited
Barca v. The Queen (1975) 50 ALJR 108 
Plomp v. The Queen (1963) CLR 234
Peacock v. The King (1911) 13 CLR 619
Twine v. Beans Express (1946) 1A11 ER 202 

Trial

This was a trial on liability 

Counsel 

G. Gendua, for the Plaintiffs 
M. Yawip, for the Defendant's 

30th May, 2016

1.	LIOSI AJ: This is an action by the plaintiff claiming various heads of damages as a result of an accident allegedly caused by the first defendant who at the material time was an employee of the second defendant. 	

2.	On 18th July 2012, there was a motor vehicle accident at Minib place, Kudjip area of Jiwaka Province. It involved the second defendant's white Isuzu twin steer truck, bearing registration number HAL 979, and the second plaintiff's vehicle, a blue land rover defender station wagon, registration number LBE 962. The Isuzu truck was driven by the first defendant and the land rover was driven by the first plaintiff.

3.	The plaintiff alleges that the first defendant negligently drove the truck and caused the collision, as a result of which his land rover was substantially damaged and written off. Police charged both drivers for driving without due care and attention. On the 16th November 2012 the Minj District Court acquitted the first plaintiff but convicted the first defendant of driving without reasonable consideration for other road users pursuant to Section 17 (2) of the Motor Traffic Act and fined him K300.00 in default 4 months imprisonment with hard labour. The first defendant never appealed his conviction. 

4.	The first plaintiff has instituted a negligence action claiming damages for Pre-accident value of the Land rover of K108, 000.00, compensation for loss of use of vehicle at K5, 000.00 per month, and damages for frustration. The defendant's deny liability. They say it was the plaintiff who caused the accident by driving at an excessive speed in the circumstances and driving under the influence of alcohol. The defendant's have filed a cross-claim claiming cost of repairs to the cross claimants vehicle, compensation for loss of use of vehicle at K15, 000.00 a month and damages for frustration.  A trial has been held on liability. 

The issues are;
i.	Has the plaintiff proven negligence against the defendant? 
ii.	Is the second defendant vicariously liable? 

5.	The critical fact for the purposes of determining whether the first defendant is liable in negligence is that, for his role in the collision he was charged with driving without reasonable consideration for other road users pursuant to Section 17 (2) of the Motor Traffic Act. He was convicted and fined K300.00 in default 4 months imprisonment with hard labour which was not appealed against. That may not necessarily mean that the plaintiff has proven a cause of action in negligence against the first defendant. It is however an important fact that cannot be disregarded. Anis v. Taksy (2011) N4468. The defendant's have adduced no evidence to rebut the inference arising from such a conviction that the first defendant was negligent. 

6.	A notable aspect of the case is that at the conclusion of the trial the defendant's lawyer in his submissions conceded that as no evidence was adduced to support the cross-claim, it should be dismissed. He further submits that the only issue therefore is whether the second defendant was vicariously liable. That is whether the accident occurred whilst he was acting in the course of his employment.

Given this I find that the plaintiff has established all elements of the tort of negligence (Otto Benal Magiten v. Bilding Tabai (2008) N3470. The first defendant owed a duty of care to other road users such as the plaintiff. He drove the truck negligently and caused the collision leading to the plaintiff‘s damages and losses. Liability is therefore established against the first defendant. 

Is the second defendant vicariously liable?

7.	Vicarious liability is liability that falls on one person as a result of the acts or omissions of another person with whom the first person is in a special relationship. Employers are in a special relationship with their employees and will be liable, vicariously, for the wrongful acts or omissions of their employees that are committed within the scope of their employment Roka Coffee Estate Pty Ltd v. Gerebi [1973] PNGLR 486, Wango v. Andakundi and the State [1992] PNGLR 45.

The Managing Director of the second defendant Mr. Chris Gena gave the 	following evidence.

8.	The second defendant accepts the first defendant was its employee but says he was not authorised to drive to Kudjip where the accident happened. He was not on official duty at that time. However, no evidence has been brought in support of this assertion. The Court must for purposes of determining facts rely on evidence that has been adduced by the parties and for reasonable inferences to be drawn from the evidence. 

9.	The evidence of Mr. Chris Gena is that the second defendant is engaged in the business of buying and selling coffee. He says on the 18th July 2012 the first defendant took an unauthorised trip to Kudjip to visit his relatives and was on his way to Kundiawa when he had the accident. He did not seek permission from him to drive the company vehicle to Kudjip. It was his personal run. As a result of the accident he terminated him on the 5th August 2012 because he paid for the damages done to the company vehicle. It was not an authorised company run as he did not sell or buy coffee in Mt. Hagen. He further did not deliver any cargoes or conduct any business in Mt. Hagen on that day.  

10.	A number of significant events and facts need noting which arose out of Mr. Chris Gena’s evidence. Firstly, the first plaintiff’s evidence went unchallenged about the events of 18th July 2012. That is that his account of events remains intact as he was never cross examined.

Secondly Mr. Chris Gena’s demeanour when giving evidence appeared evasive and on a number of occasions was told to answer the questions. 

11.	I made the following findings of fact. The defendant's from the beginning accused the first plaintiff of excessive speeding and driving under influence. These were raised in their defence and cross claim in the face of the first defendant's conviction by the Minj District court. After running the trial the defendant's conceded through their Lawyer that there was no evidence to sustain the cross-claim and defence and that the only issue was that of vicarious liability. 

12.	Though not stated anywhere in his affidavit the second defendant told the court in cross examination for the very first time that on the 18th July 2012, he sent the truck loaded with green beans coffee in the container to Goroka for drop off at PNG coffee exports. The driver was accompanied by a crew whose name he forgot. This was a fact not known to the court and was never pleaded until during cross examination. It was never pleaded in the defence and cross claim and as I said arose only during cross examination. I find this to be a recent invention.

13.	There was no documentary evidence to prove that the driver was sent to PNG coffee exports in Goroka to do the delivery. In my view this would have been a significant evidence to prove that he in fact sent the truck with the coffee load to PNG coffee exports in Goroka and not to Mt. Hagen or anywhere else on that day. I find that in this modern day age and technology conduct of business would always be documented more particularly a container load of goods.  Further well knowing that a possible claim for negligence was looming, he terminated the driver on the 5th August 2012. Both the driver and the crewman were not called to give evidence to assist the court. As to why they were not called raises doubt on his credibility and the truthfulness of his evidence that he may be hiding the truth. Further at paragraph 6 of his affidavit he states that in 2011 he bought two Hino Trucks to transport coffee bags from Kundiawa to Goroka for export overseas. The trucks were also used to carry cargo from business houses in Lae to other centres in the Highlands Region. The inference drawn from this is that the second defendant could have sent the first defendant to Hagen but due to the accident he is covering up. 

14.	The second defendant never raised the defence of unauthorised trip when his defence and cross claim were filed on 9th September 2013. He raised this in his affidavit filed on 6th January 2014 almost two years later. The question is why? This was not explained by the defendants. What then are the inferences that the court is led to draw?       

15.	The law on circumstantial evidence is set out in the case of State v. Tom Morris (1981) PNGLR 493, which followed the Australian High Court decision in Barca v. The Queen (1975) 50 ALJR 108 at p.117. 

"When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused: Peacock v. The King at p 634. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilty should be a rational inference but that it should be the only rational inference that the circumstances would enable then to draw: Plomp v. The Queen at p 252; see also Thomas v. The Queen at pp. 605-606. However an inference to be reasonable must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration, of all the facts in evidence: Peacock v. The Queen at p 661."

16.	Whilst noting that the above principles relate to criminal law, they nevertheless apply to civil cases, the balance of proof being on the balance of probability. I draw inferences from the findings of fact and I find that the first defendant committed the tort in the course of his employment and therefore the second defendant is vicariously liable to the plaintiff. This finding does not extinguish the first defendant’s liability. Both are therefore liable. The matter stands adjourned for assessment of damages. 

Ruling Accordingly,

________________________________________________________________
Gendua Lawyers	: Lawyers for the Plaintiffs 		 
Public Solicitors	: Lawyers for the Defendant's