N8569	    

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 531 OF 2003

BETWEEN:
SOLOMON SAKILYA
Plaintiff

AND:
ENGA PROVINCIAL GOVERNMENT
First Defendant

AND:
SIMON KAKIO
Second Defendant

Wabag: Makail J
2020:  8th & 9th October

LIABILITY – Negligence – Motor vehicle accident – Damage to motor vehicle – Motor vehicle accident not disputed – Breach of duty of care 
- Liability established

MASTER & SERVANT - Law of master and servant - Authority of master to servant - Expressed or implied authority - Authority to use motor vehicle for official purpose - Authority may be implied - Vicarious liability established

Cases cited:

Nil

Counsel:

Mr. J. Yapao, for the Plaintiff
Mr. M. Kambao, for the First Defendant
Second Defendant in person.

JUDGMENT

9th October, 2020

1.	MAKAIL J:	This is a trial on liability. It arises from an alleged motor vehicle accident on 6th December, 2002 along Waeamu road in the Wapenamanda District of Enga Province. It is alleged that the motor vehicle accident was caused by the negligent driving of the Second Defendant. The First Defendant is sued as being vicariously liable for the negligence of the Second Defendant.

Liability

2.	The Plaintiff tendered the following:

2.1.	Affidavit of John Pilyo sworn on 29th March 2010 and filed 30th March 2010- Exhibit “P1”.

2.2.	Affidavit of John Waran sworn on 30th March 2010 and filed 30th March 2010- Exhibit “P2”.

2.3.	Affidavit of Solomon Sakilya sworn on 30th March 2010 and filed 31st October 2010 – Exhibit “P3”.

2.4.	Further affidavit of Solomon Sakilya sworn on 27th October 2014 and filed 27th October 2014. - Exhibit “P4”.

2.5.	Affidavit of Jack Philip sworn on 22nd December 2014 and filed 23rd December 2014 – Exhibit “P5”.

3.	An affidavit by Paul Sarr sworn and filed on 23rd December, 2014 was tendered and marked exhibit “P6” but it will not be considered because Mr. Paul Sarr was not present and cross-examined by counsel for the First Defendant.

4.	For the defence case, the First Defendant offered no evidence although it attempted to tender a belated affidavit by Wass Rowatina the Provincial Education Director and sought an adjournment which were refused. 

5.	The Second Defendant tendered an affidavit sworn on 13th March, 2013 and filed on 8th April, 2013 – exhibit “D1”

6.	Though the Plaintiff’s witnesses were cross-examined, much of the cross-examination exercise was uncontroversial because it was never in dispute that there was a motor vehicle accident involving the Plaintiff’s motor vehicle and the First Defendant’s motor vehicle and that the Plaintiff’s motor vehicle was damaged. It was also never in dispute that the Second Defendant was the driver of the First Defendant’s motor vehicle and the Plaintiff was the owner of the other motor vehicle.

7.	The dispute is in relation to whether the Second Defendant was negligent and whether the Second Defendant was on authorised official duty and the First Defendant should be vicariously liable for the Second Defendant’s negligence.

8.	The first issue can be disposed off quickly because by his own admission in his evidence in chief and cross-examination, the Defendant said that he swayed his motor vehicle on to the opposite lane on the road to avoid a pot-hole. As a result, the motor vehicle came into impact with the on-coming motor vehicle of the Plaintiff. The Second Defendant’s account is consistent with the Road Accident Report tendered by the Police investigating Officer Mr. John Waran. The Report stated that:

“Driver 1 (Plaintiff) said: I saw vehicle No.2 came straight towards me on my lane and we had a collision.
Driver 2 (Second Defendant) said: I apologise to other parties for causing this accident”.

9.	This position is further reinforced by the Second Defendant’s conviction by Wabag District Court on a lesser charge of careless driving on 11th December, 2002. He was cautioned and discharged: see Court Order marked annexure “B” to the Second Defendant’s affidavit (exhibit “D1).

10.	On the evidence, I am satisfied that the Second Defendant breached his duty of care when he drove onto the lane of the on-coming vehicle and caused the motor vehicle accident. I find him liable for damages in negligence.

11.	As to whether the First Defendant authorised the Second Defendant to use the motor vehicle,  it was the Plaintiff’s case that the Second Defendant was on official duty when he ran into him. The evidence of that came from Jack Philip (exhibit “P5”) who deposed that as the Teacher in –charge of Leas Elementary School, the School invited the Second Defendant to be an official guest for the 2002, end of year close-up ceremony. I have no reason to doubt his evidence because he was forthright and maintained his evidence in chief when cross-examined by counsel for the First Defendant. 

12.	It was the Second Defendant’s evidence that as the co-ordinator of Elementary Schools in Enga Province, he was authorised to use the motor vehicle to travel to Tsak Valley to attend an end of year break-up ceremony for Elementary Schools.

13.	Counsel for the First Defendant sought to discredit the Second Defendant in cross-examination. Counsel suggested that his claim that he was on approved official duty when he was involved in the motor vehicle accident was deliberately manufactured to pass on the responsibility to the First Defendant to pay for the damage to the Plaintiff’s motor vehicle. However, I find the First Defendant to be a witness of truth. He was sincere when he said that he was at fault when he ran into the Plaintiff.

14.	His version that he was on authorised official duty for visiting Elementary Schools in the Wapenamanda District for the end of year break-up ceremony is corroborated by Mr. Philip, the Teacher in- charge of Leas Elementary School in Tsak Valley.

15.	While on its own is not determinative, the absence of Paul Sarr at the trial and the belated attempt by the First Defendant to tender the affidavit of Mr. Rowatina supports the inference that they were divided on this issue of authorisation and goes to support the Plaintiff’s case that the Second Defendant was on authorised official duty. For these reasons I reject the submission by the First Defendant that it is strange to see the Second Defendant admit liability. It is self-serving. 

16.	In a master and servant relationship, the authority to act may be expressed or implied. In this case, it was never in dispute that the Second Defendant is a servant (officer) of the First Defendant in its Division of Education. As co-ordinator of Elementary Schools in Enga Province, and in the absence of an expressed authority,  there is an implied authority to act for the First Defendant when the Second Defendant is discharging his duties and responsibilities as the co-ordinator of Elementary Schools when he attended at Leas Elementary School. I am satisfied that the Second Defendant was on authorised official duty when the motor vehicle accident occurred. I find the First Defendant vicariously liable in damages for the negligence of the Second Defendant.

16.	Judgment on liability is entered against the Defendants, with damages to be assessed. 

______________________________________________________________
Mackenzie Lawyers: Lawyers for the Plaintiff	
Provincial Legal Officer: Lawyers for the First Defendant