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JY Trading Ltd v Mim Holdings Ltd [2019] PGNC 480; N8783 (28 January 2019)

N8783

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 40 OF 2016

BETWEEN:
JY TRADING LIMITED
Plaintiff

AND:
MIM HOLDINGS LIMITED
First Defendant

AND:
PETER PEPENDO by
his customary representatives and trustees
ERIC HAIARA and KURUBU IPARA
Second Defendant

Waigani: Hartshorn J,
2019: 28^th January

NEGLIGENCE – trial - plaintiff claims damages for loss of shop and business caused by fire through the negligent act or omission of the defendants – plaintiff relies upon the common law principle of “res ipsa loquitur (the thing speaks for itself) - The principle of res ipsa loquitur may be invoked when 3 elements are established – that there is an “absence of explanation” of the occurrence that caused the damage, that the occurrence was of a kind that does not ordinarily occur without negligence; and whatever caused the occurrence was under the control of the defendant – all three elements cannot be established to invoke the principle of res ipsa loquitur – plaintiff’s claim for damages in negligence is dismissed
Cases Cited:

Porter v. Morrison-Knudsen International Co Inc [1973] PNGLR 240
Edwards v. Jordan Lightening [1978] PNGLR 273
Timson Noki v. Fraser and Anor [1991] PNGLR 260
Marshall Lagoon Investment Company Pty Ltd v. Ding Company Ltd (2008) N3650
Ruth Wama v. John Kama Buri (2011) N4321
Tony Raim v. Simon Korua (2010) SC1062

Counsel:

Mr. P. H. Pato, for the Plaintiff
Ms. L. David, for the First Defendant
Mr. A. Ayako, for the Second Defendant

28^th January, 2019

1. HARTSHORN J: In May 2015 a fire destroyed a property in Erima, National Capital District. The property is owned by the second defendant, now deceased. On the property were two shops. One was leased to the plaintiff, and the first defendant was a sublessee of the other shop.

2. The plaintiff sues both defendants for damages in negligence claiming that they breached their duties of care that the plaintiff alleges they owed to the plaintiff. The plaintiff claims that as a result of those breaches, the fire occurred causing the plaintiff’s shop and its business to be destroyed.

3. The plaintiff relies upon the principle of res ipsa loquitur (the thing speaks for itself) as it is submitted that although the evidence does not establish the cause or source of the fire, the evidence leads to the only conclusion which is that the first defendant’s negligence caused the fire.

4. The first defendant takes issue with the plaintiff’s reliance upon res ipsa loquitur as the plaintiff has not pleaded its reliance in its statement of claim. The first defendant cites the Supreme Court case of Tony Raim v. Simon Korua (2010) SC1062. The plaintiff however, submits that it is not necessary to plead res ipsa loquitur and cites the cases of Porter v. Morrison-Knudsen International Co Inc [1973] PNGLR 240 and Ruth Wama v. John Kama Buri (2011) N4321.

5. From a perusal of Raim v. Korua (supra), the issue of whether res ipsa loquitur should be pleaded was not considered. I note that at [18] the Court said:

“It is therefore clear from these authorities that a party must sufficiently plead the material facts giving rise to a cause of action to give the opposing party the opportunity to respond or defend the claim.”

6. Res ipsa loquitur is a rule of evidence: Timson Noki v. Fraser and Anor [1991] PNGLR 260. As Raim v. Korua (supra) is concerned with amongst others the sufficiency of pleading material facts, I do not find it of assistance in this instance.

7. The cases relied upon by the plaintiff of Porter v. Morrison (supra) and Wama v. Buri (supra) together with Edwards v. Jordan Lightening [1978] PNGLR 273, are all authorities to the effect that it is not necessary to plead res ipsa loquitur to be able to rely upon it. Consequently, the submissions of the first defendant on this point are rejected.

Res ipsa loquitur

8. The plaintiff submits as referred to, that although the evidence before this court does not establish the cause or source of the fire, the evidence leads to the only conclusion which is that the first defendant’s negligence caused the fire. This is because, it is submitted:

a) the actions or omissions of the first defendant can be inferred from the location of the fire, even though there is no explanation for the cause of the fire;

b) the fire occurred in a room inside the first defendant’s shop which was occupied by its manager and a security guard provided by the second defendant;

c) that room was under the immediate control, supervision and possession of the first defendant;

d) a fire is an occurrence that would not occur without negligence.

Consideration

9. In Marshall Lagoon Investment Company Pty Ltd v. Ding Company Ltd (2008) N3650 in regard to the principle of res ipsa loquitur, I said at [28] and [29]:

“28. The principle of res ipsa loquitur may be invoked when 3 elements are established:

a) there is an “absence of explanation” of the occurrence that caused the damage;

b) the occurrence was of a kind that does not ordinarily occur without negligence; and

c) whatever caused the occurrence was under the control of the defendant.

29. Res ipsa loquitur is the process of inferential reasoning from which negligence may be inferred rather than being a distinct rule of law. The High Court of Australia in Anchor Products Ltd v. Hedges [1966] HCA 70; (1966) 115 CLR 493 and Schellenberg v. Tunnel Holdings Pty Ltd (2000) CLR 121, noted that the burden of proof stays with the plaintiff. It is necessary for the court to determine whether the burden of proof has been discharged even if the 3 elements of the principle are established. In Anchor Products (supra), Windeyer J at p.50 said:

“To say that an act speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances. It is evidence from which an inference of negligence may be drawn: it does not mean that this inference must necessarily be drawn, although in some cases it may be evidence so cogent and compelling that any other conclusion would be perverse as Du Parcq L.J. pointed out in Easson v. London and North Eastern Railway Co [1944] 1 KB 421 at 425. But always the question whether the plaintiff has discharged the burden of proving his case depends upon the effect of the whole of the evidence given in the case, including such inference as may be drawn from the happening of the accident, if its cause remains unexplained.””
10. Here, it is conceded by the plaintiff that there is no evidence of the specific cause or source of the fire. The closest the evidence comes is that the fire originated from a room in the first defendant’s shop. There is no evidence of a specific act or omission of the first defendant or of any of its employees or of the security guard or indeed, anyone else that could have caused the fire. The plaintiff submits that the fire is an occurrence that could not occur without negligence. There is no evidence of this. There are numerous ways a fire may start without being due to a negligent act. Examples are lightning strikes and some gas or electrical faults. In this instance, the evidence is that gas and electricity were connected. There is no evidence to the effect that the fire was not caused by either gas or electricity.

11. As to the first of the three elements to be considered in determining whether res ipsa loquitur can be invoked, in Marshall Lagoon (supra) at [34], I stated:

“34. As to the first of the 3 elements to be considered in determining whether the principle of res ipsa loquitur can be invoked - the occurrence in respect of which there is an absence of an explanation; in Schellenberg’s case (supra), it was stated that:

In principle, we think the relevant cause must be the immediate cause of the occurrence, which means the occurrence must be defined with reasonable precision if the principle is to operate effectively. Definition of the occurrence will determine whether the accident is of a class that does not ordinarily happen if those who have the management use proper care. Definition of the occurrence will also determine whether the cause of the occurrence has been established. To a large extent, the definition of the occurrence will depend on how much the tribunal of fact knows about the accident.””
12. It is not possible on the evidence to determine the occurrence; where inside the room in the first defendant’s shop, did the fire start and what constituted its immediate cause. That the fire started in that particular room in the first defendant’s shop is not sufficient. The occurrence cannot be defined with reasonable precision for the principle of res ipsa loquitur to operate effectively. There remains too much in respect of which there is an absence of explanation. In such circumstances the first of the three elements cannot be properly established. As all three elements are required to be established before the principal can be inferred, the principle is unable to be invoked by the plaintiff in this instance.

13. For the above reasons, there is also insufficient evidence for this court on the balance of probabilities, to be able to find against either of the defendants, in favour of the plaintiff. Given this it is not necessary to consider the other submissions of counsel.

Orders

14. It is ordered that:

a) This proceeding is dismissed;

b) The plaintiff shall pay both defendants’ costs of and incidental to this proceeding;

c) Time is abridged.
__________________________________________________________________
Parker Legal: Lawyers for the Plaintiff
Pacific Legal Group: Lawyers for the First Defendant
Haiara’s Legal Practice: Lawyers for the Second Defendant