N8130
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 905 of 2013

BETWEEN:
JACK WALOM KANIT trading as CITI-LINK TAXI SERVICES
Plaintiff

AND:
DAMGE SAKIAS
First Defendant

AND:
NATIONAL AIRPORTS CORPORATION LIMITED
Second Defendant

Kerevat: Susame, AJ
2019: 19th September, 14th, 25th October, 11th November

CIVIL SUIT– Claim under law of Negligence- Motor Vehicle Accident- Claim for damages to motor vehicle 

CIVIL SUIT– Principle of Res Judicata – whether issue on action being time barred been judicially determined in the earlier proceeding – inclusion of first defendant as a party to proceeding by amendment on 04 August 2019.- whether that amendment gives rise to fresh proceeding being commenced - s 16 Frauds and Limitation Act.

CIVIL SUIT–Negligence - elements to establish in an action for negligence –whether first defendant drove negligently- vicarious liability- employee-employer relationship - Whether second defendant caused the accident while in the discharged of his employment duties

Cases Cited:

Andrew Kewa v Johnny Lus [2007] PGNC 3; WS 415 of 2003 (14 March 2007)
Daiva&OmeOme Forests Ltd v Pukali & Anor, Ome Ome Forest Ltd v Ray Cheon & Ors (2002) N2259
Huaimbuke v Baugen (2004) N2589
Kolta Development Pty Ltd v PNG Defence Force [1997] PNGLR 585
More v State [1998] PGNC 13; N1736
Roka Coffee Estate Pty Ltd v Largo Gerebi [1973] PNGLR 486
State v Kofewei [1987]PNGLR 5   
Telikom PNG Ltd v ICCC (2008) SC906 
Titi Christian v Rabbie Namaliu (1996) OS N0.02 of 1995

Counsels:

Mr. Robert Asa, for the Plaintiff
Mr. C. Kaki, for the Defendant

DECISION
11th November, 2019

1.	SUSAME AJ: Plaintiff commenced proceedings on 21 August 2013 seeking damages for damage caused to his motor vehicle in a road accident on or about 24 November 2012 and for loss of business.     

Evidence

2.	Trial was by affidavit evidence.  Plaintiff relied affidavit of: 

•	Jack Walom Kanit sworn on 18 June 2018 (Document No. 44)
•	Dotty Penias sworn on 18 June 2018 (Document 45)
•	Steven Liu sworn on 19 June 2018 (Document 46)
•	Salome Liu sworn on 19 June 2018 (Document 47)
•	Senior Constable Otto Vue sworn on 8 March 2019 (Document 57)

3.	Defendants relied on affidavits of Damge Sakias dated 10 September 2019 (Document 79) and Lazarus Tuam sworn on 20 July 2019 (Document 49)

4.	Parties decided against challenging each other’s evidence and have deponents appear for examination and cross –examination.  So all affidavits were submitted into evidence by consent.  

Facts

5.	The following facts are drawn from the evidence and accepted by the court. Plaintiff operates a taxi service business trading under the name Citi- Link Taxi Services. The vehicle the first defendant crashed into was a Toyota Camry Sedan, bearing registration N0. T -4687. It was driven by a Penias Dotty along the Tokua Kokopo Road on 24 November 2012 when it was involved in an accident with the defendant’s vehicle, a yellow utility Ford bearing registration N0. BCX.607. Vehicle was driven by the first defendant, Damge Sakias. First defendant is an employee of the second Defendant, National Airport Corporation Ltd. 

Issues

6.	During trial a number of issues arose and arguments heard: That action was statute barred, that issue of time limitation has been judicially decided in the earlier proceedings to bring in operation defence of res judicata, that first defendant was never negligent, that first defendant was never in the course of execution of his duty to hold the second defendant vicariously liable as the employer. 

Principle of Res Judicata

7.	This subject was put at issue during arguments on the issue of action being time barred or statute barred.  It was argued by the defence the issue had not been judicially determined when matter came before Kassman J on 8 April 2019. Defendant was not precluded from arguing the issue of action being time barred again for determination by this court. 

Whether action is statute barred

8.	It was argued action is statute barred pursuant to s 16 (1) of the Frauds and Limitation Act 1988 which prescribes a mandatory 6 years’ time period to commence an action from the date cause of action arose. The rational of that argument was that addition of first defendant as a party to the proceedings by amendment on 04 August 2019 gave rise to a fresh action being filed 7 years after cause of action arose on 14 August 2012. 

9.	Plaintiff’s argument as I understand is that principle of res judicata is applicable in this case because issue on action being statue barred had judicial been determination by Kassman J and cannot be revisited again. 

10.	Action had commenced at the date of filing on 21 August 2013 after the cause of action arose on 24 November 2012. Inclusion of first defendant as a party to the proceeding on 04 August 2019 cannot be regarded as commencement of fresh proceeding but part of the proceeding which was already on foot. 

11.	Reference was made to Supreme Court decisions in Telikom PNG Ltd v ICCC (2008) SC906 and Titi Christian v Rabbie Namaliu (1996) OS N0.02 of 1995 which defined and reinforced the principle of res judicata.

12.	I have had the benefit of transcript of record of proceeding of 08 April 2019.  I have read Kassman J’s ex tempore ruling which commences at page 22 of the transcript. 

13.	Being unsatisfied with defendant’s argument on this particular issue Kassman J ruled, “the naming of the party is no tone and the same as the commencement of a fresh proceedings, …………that addition of Damge Sakias did not give rise to a new cause of action.: ( see page 25 of the decision from paragraph 10 onwards)

I adopt and endorsed the passage of Amet CJ’s judgment. His Honour adopted the definition of the principle from the text by Spencer Bower and Turner. That is the correct position of the law and will not expound further on that. 

Finding 

14.	Firstly, I am inclined to accept plaintiff’s argument more persuading. I accept as a fact issue of action being time barred or statute barred has been adequately argued and determined by court in the earlier proceeding on 8 April 2019.  I agree with Kassman J’s ruling. I need not elaborate further. Common law defence of res judicata is applicable. Defendant is precluded or estopped from taking a second bite of the apple so to speak, on the same issue which had been judicially considered and decided by a court of competent jurisdiction. 

15.	Secondly, court had the power on its own motion to make the amendments to include naming of Damge Sakias as the party to the proceedings by authority of O8 R50 of National Court Rules. At paragraphs 7 (a) & (b) and 8 of the pleadings in the statement of claim he was mentioned as the driver and employee of the second defendant but never named as co-defendant when action was filed.That was necessary for the court to decide liability. It is unlikely the amendment substantially prejudiced the defendant’s case in any material way. 

16.	Thirdly, filing of a suit and adding a party to the proceeding that had already commenced are distinct and not the same thing. In that regard adding of Damge Sakias who committed the tort as a co-defendant in the proceeding does not and cannot give rise to a fresh proceeding being commenced.  Cause of action arose on 24 November 2012. Proceeding had commenced on the date of its filing on 21 August 2013 well within the six years statutory period stipulated in s 16 of Frauds and Limitation Act.  Amendment to include the first defendant on 04 August 2019 was made on one and the same proceeding that was on foot and still progressing. 

17.	The end result of the discussions is that defendant’s argument must fail. I find that action is competent and not time barred. 

Law of Negligence

18.	This is an action in the law of negligence. First, some discussions on the law of negligence. No discussions were heard from the defence counsel except from counsel representing the plaintiff.  In his discussions he made reference to the judgment of Manuhu J in Andrew Kewa v Johnny Lus [2007] PGNC 3; WS 415 of 2003 (14 March 2007)

19.	I fully endorse counsel’s discussions and Manuhu J’s discussions on duty of drivers and consequences thereof for failure to observe that duty.  Let me expound further. To succeed in an action for negligence these elements must be proved:

•	Duty of care. Defendant owed a duty of care to the plaintiff
•	Breach of Duty. Defendant breached that duty in failing to drive safely or with care
•	Causation. Breach of duty by the defendant actually caused the injury or damage.
•	Damages

20.	Management of vehicles with prudence or with due care and attention to avoid accidents while being driven on public roads is the sole responsibility or duty of all drivers. That duty is expected of them by law and is owed to other road users.  Failure to observe that duty will attract criminal or civil liability.  

21.	What amounts to negligent driving or driving without due care and attention depends very much on many factors and the prevailing circumstances or facts at the material time. 
Whether first defendant drove the vehicle negligently?

22.	Arguments have been considered on this issue. 

23.	Assessment of evidence is necessary. Uncontested evidence from the plaintiff’s witnesses and which I accept are these.  There were two vehicles parked away from the road on the left side in bound Kokopo from Tokua airport.  One was a family owned by Steven Liu and driven by wife Salome Liu. The other was a hired vehicle owned by the plaintiff and driven by Dotty Penias. That is the vehicle the first defendant crashed into. It was parked directly behind the vehicle driven by Salome.They had stopped to drop of some passengers. 

24.	Other uncontested evidence which I accept is that first defendant was approaching the area at a very high speed. Witnesses observed him approaching from the rear vision mirrors. As he approached them a PMV bus was approaching from the opposite direction about to pass by.  

25.	First defendant stated in his affidavit as he was intending to overtake them (parked vehicles) he saw a Toyota land cruiser (10 seater) approaching on the opposite lane towards the airport. To avoid head on collision with the oncomingvehicle, he applied brakes and steered his vehicle back onto his lane. As it was raining then and road was slippery vehicle kept sliding and smashed into the back of the stationary sedan.  He stated accident was attributed to misjudgment on his part in trying to overtake the two parked vehicles without properly confirming whether there were oncoming traffic on the opposite lane. After making the commitment to overtake and realizing oncoming traffic he had to apply brakes and move back to avoid head on collision. In that process he slammed into the parked sedan.

26.	There is no evidence from plaintiff’s witnesses it was raining that particular afternoon.  It is not clear if it was raining heavily or not. If it did rain heavily obviously visibility would have been difficult. Road surface would have been wet and slippery.  Under such raining conditions more alertness and care is required of the first defendant and speed reduced to avoid possible accident.  

27.	It may not have rained. But what is can be drawn from the evidence is that first defendant was travelling at high speed.  As he was about to pass the two stationary vehicles he maneuvered his vehicle out to the opposite lane just as the other vehicle was approaching from the opposite lane. Faced with the situation he was in, he had to apply sudden brakes and tried to get back on his lane proper. However, the vehicle skidded and went off the lane proper, crashing into the rear of the sedan. The skidding of vehicle is clear proof that first defendant was travelling at high speed.

28.	On other contributing factor which attributed to the accident is that first defendant drove the vehicle under the influence of alcohol. Proof of that is the uncontested evidence of strong breath of alcohol emitting from his breath, he looked drunk with his other companion, and the empty cans of beer found in the vehicle.

29.	Driving under drunkard condition affects judgment and concentration level, hence posing a high risk of accidents occurring. First defendant’s concentrating and judgment would have been impaired. 

30.	Applying the law to the facts of this case, first defendant had apparently breached the duty of care imposed on him by law.  Under the prevailing circumstances he had driven his vehicle well below the standard of care expected of him having no regard to safety of other road users, as a result of which accident occurred. 

31.	I find first defendant guilty of negligence. 

Vicarious Liability 

32.	This is a common law principle. It refers to a situation in which an employer or master is held liable for loss suffered by a third person caused by tortuous act or omission of his worker or servant in the course of his duty. Employer can only be liable if an employee caused the tortuous act or omission in the course of his employment pursuing the employer’s interest. If he is out on a frolic and detour of his own and causes the harm or damage to a third party, employer cannot be liable.

33.	There are numerous judgments of courts in this jurisdiction on this principle. Few of which have been cited by the defence counsel. (State v Kofewei [1987]PNGLR 5, Kolta Development Pty Ltd v PNG Defence Force [1997] PNGLR 585, More v State [1998] PGNC 13; N1736 , Huaimbuke v Baugen (2004) N2589, Daiva & Ome Ome Forests Ltd v Pukali & Anor, Ome Ome Foreat Ltd v Ray Cheon & Ors (08/10/02) N2259). 

34.	The principle continues to be applied by the courts in this jurisdiction. 

35.	Basically, three elements need to be present:

1.	Employment- the person who committed the tort must be an employee
2.	A tort must be committed – example the person caused an accident
3.	Tort must be committed in the course of or scope of his employment

36.	Findings on first and second elements have been established. First defendant is an employee of the second defendant. He is the tortfeasor and has been found guilty of negligence. 

37.	Third element is yet to be decided. Whether the first defendant caused the accident while in the performance of his lawful duties for the interest and benefit of his employer. 

38.	Arguments have been considered. Defence counsel has sufficiently and correctly argued the law on vicariously liability with reference to few case authorities. 

39.	Plaintiff’s arguments are these. Firstly, second defendant is vicariously liable as the owner of the vehicle for negligent actions or inactions of its driver, the first defendant on the basis of the pre-independence Supreme Court decision in Roka Coffee EstatePty Ltd v Largo Gerebi [1973] PNGLR 486. Secondly, second defendant is liablefor its own negligent conduct and omission because he caused an unregistered and uninsured motor vehicle to be used by the first defendant. It argued there was no need for addition of the first defendant to the case. Thirdly, second defendant should be held vicariously liable based on the principle of principal –Agent relationship.

40.	I am unimpressed with arguments for these reasons. Firstly, decision of the Supreme Court in the case referred has been misconstrued. I have read the judgment. Ownership of the vehicle was discussed in the context of discussion of vicarious liability. Owner of the vehicle, the company that employed the driver involved in the accident would have been vicariously liable as the employer.

41.	Secondly, while I accept employer was at fault to allow an unregistered and uninsured vehicle to be used which was against the law, the unregistered status of the vehicle had nothing to do with the accident. What matters is that the vehicle was being driven or used outside of the scope of pursuing interest of the employer when it was involved in the accident. 

42.	Thirdly, vicarious liability can arise in both situations of Principal- Agent relation and employee-employer relationship. Save to say without going into detail discussion of distinction between the two relationships defendants in this case are in an employee-employer relationship as opposed to principal-agent relationship. Therefore, vicarious liability will be determine along employee-employer relationship.

43.	Defence conceded first defendant was the employee of the second defendant at the material time.  However, it argued second defendant is not liable for tort committed by the first defendant as it was committed outside the scope of his employment. 

44.	Defence relies on affidavit evidence of Lazarus Tuam and the first defendant. It argued first defendant although he was called out to assist contractors in clearing the sewerage at the airport accident occurred whilst he was on a frolic and detour of his own, using the company vehicle to buy and consume alcohol which was unauthorized. It was arguedfurther statutory companies like the second defendant restrict employees from consuming alcohol during working hours and using company vehicles for such purpose. For that reason second defendant cannot be vicariously liable. First defendant should be personally liable. 

Finding

45.	Did the accident occur whilst first defendant was using the employer’s vehicle in the discharge of his assigned duties on that day?

46.	Facts admitted are that first defendant and his other colleague Tau were called out to assist contractors in the cleaning up of the main sewerage pipe that connects the Tokua Domestic Terminal. The work location was at the tarmac area. The accident occurred about 5.45 pm way outside of the work location. It was already late and work would have stopped by then. 

47.	First defendant stated in paragraph 2 of his affidavit hedrove out to buy some food. I do not accept that as being truthfulfor two reasons. Firstly,it is common knowledge that there are food or market stalls lined up along the drive way into the tarmac area where local people sell food items, cigarettes and other stuff.  At the time of the afternoon locals would have still be selling because people would have still be around the airport area. There was no reason for them to drive out elsewhere to buy food when they would easily bought them from the stalls.Secondly, facts already established are that first defendant and his companion were drunk.  Empty cans of beer were found in the vehicle. 

48.	In assessing all of the evidence,the second defendant and his companion were on a frolic of their own drinking and using the employer’s vehicle for that purpose. That was way outside of scope of discharge of their call- out duties on that particular day which was not for the interest of the employer.

49.	Conclusion reached from the discussions is that second defendant being the employer cannot be vicariously liable.   First defendant should be held personally liable for the plaintiff’s loss. 

Orders

(i)	Case against the second defendant is dismissed. 
(ii)	Judgment on liability is entered for the plaintiff against the first defendant.
(iii)	Matter is adjourned for trial on damages to be assessed.
(iv)	 Time for entry of judgment is abridged to the time of settlement by the Assistant Registrar which shall take place forthwith. 
(v)	Cost is reserved until matter returns to Court for trial on damages.

Warner Shand Lawyers:	 Lawyer for the Plaintiff
Kawat Lawyers: 		Lawyer for the Defendants