N8779

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 66 OF 2019

BETWEEN
RAMU TRANSPORT SERVICES LIMITED
Plaintiff

AND
MORRIS BOMAI
First Defendant

AND
JIM TAPAKO INVESTMENT LIMITED
Second Defendant

Waigani:  Thompson J
2021:  4th, 9th March

NEGLIGENCE – EVIDENCE – two vehicles in head-on collision –police report both hearsay and inadmissible – contributory negligence – vicarious liability of employer.
Counsel:

Mr B Yalehen, for the Plaintiff
Ms V Rambua, for the Second Defendant

9th March, 2021

1.	THOMPSON J:	The plaintiffs’ claim and the defendants’ cross-claim, are both for damage sustained to their motor vehicles as a result of an accident on 26 August 2018.
Evidence
2.	The evidence established that on 26 August 2018, the plaintiff’s truck reg. no.  LBU507 was being driven to Madang from Lae by Casper Sam, while the defendants’ truck reg. no. LAY479 was being driven from Lae to Madang by Morris Bomai, the first defendant.  Morris Bomai had not been served with the proceedings, and did not take part.
3.     	A copy of a police accident report was attempted to be tendered into evidence, for the purpose of relying on its contents. The author of the report did not give evidence or provide an affidavit identifying the document, and nor did any senior officer give evidence that the report had been prepared in the course of business. The mere fact that a person has received or seen a document prepared by a third party, does not make it admissible. What a third party has said, is hearsay. It is also inadmissible if the document is being relied on to show the truth of its contents. In Jack Gopave v Francis Kugame and anor N2482, Davani J cited the Privy Council decision in Ratten v R (1972) AC 378, where the Court restated from an earlier case :
‘Evidence of a statement made to a witness …is hearsay, and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.’
In the present case, the police report was not a statement made to the plaintiff or defendant, it was merely seen by them.  In any event, the object of producing it was to rely on the truth of its contents.
4.	 As the police report was both hearsay and inadmissible, I refused to admit it into evidence.
5.	The plaintiff’s driver gave affidavit evidence that he had been driving since 10.00am on that day, with two rest breaks.  He said that at about 2.00pm, he saw the defendants’ truck reg no LAY579 at the market, buying food.  He says that at about 3.30pm, he “came across” nine trucks parked at a service centre, including the defendants’ truck.  He says he saw the first defendant and other drivers “standing and drinking home brew from 500m plastic containers”.  He was about 200 meters from the other trucks.  After speaking to his supervisor, he left, went to Lae, discharged his cargo, and commenced his return trip to Madang at about 6.00pm.After a stop at 41 Mile where he bought a drink, he resumed driving and when turning the corner near the primary school, he saw an oncoming truck “with its headlights on”.  This was at about 8.00pm.  He says he signalled the driver to dip his lights, but the truck continued at high speed.  He said that he “was blinded by the oncoming truck’s headlights and knew then that he would come across from his lane into my lane and collide head on into me”, and so he “remained in my lane and braced for impact”.  He says that the truck then “hit my vehicle head on”.  He next says that at 3.30pm on that day, when he had seen the driver at the service centre, he “observed him to be heavily intoxicated as he was stumbling and having difficulty in walking in a straight line”. 
6.	His evidence was not tested in cross-examination, as the plaintiffs’ lawyer had obtained leave to rely on his affidavit without the deponent needing to appear, subject to the appropriate weight to be given to the fact that the deponent had not been subject to cross-examination.
7.	A driver employed by the defendant, Paul Kemino, gave affidavit and oral evidence, on which he was cross-examined.  He said he had been driving on the same route to Madang that evening, when one of the plaintiffs’ trucks came up from behind and overtook him at speed, followed later by another of the plaintiffs’ trucks. He identified the second truck by the plaintiffs’ fleet number displayed in large letters on the bonnet of the truck.  This truck also began to overtake him, he moved to the left to make more room, and then he was overtaken at speed, at about 40 Mile.  A short time later, as he approached the bend at 41 Mile, near the primary school, he saw the plaintiffs’ truck “driving with no care of any oncoming vehicle”, and he next saw that it had collided with one of the defendants’ trucks. There were no street lights.  Being very aware of the likelihood of local villagers coming to the scene and attacking the vehicles and possibly their drivers, he did not stop, but continued on driving to his destination.  He said he knew Casper Sam, the plaintiffs’ driver, because they had worked together many times delivering cargo to the mine site.
8.	The defendants’ Operation Manager gave affidavit and oral evidence, and was cross-examined.  He said that he had attended the scene of the accident, when the vehicles were still there, and the Police were also there.  After inspecting the road and the scene, he formed the view that the vehicles had collided in the middle of the road.
9.	The plaintiff’s Loss Adjustor gave affidavit evidence which annexed copies of photographs of the scene, although it was not known who had taken those photos.  The photos showed the plaintiffs’ vehicle off on the plaintiffs’ side of the road, and the defendant’s vehicle off on the defendant’s side of the road.  There was a skid mark on the plaintiffs’ side of the road, running from the middle towards the left side of the roadway. 
10.	It was possible to infer from two of the photos that the accident occurred on the roadway before the skid mark started, but it is not entirely clear.  
11.	The photos show that the defendants’ vehicle was a prime mover with a container on the back trailer, which was said in evidence to have contained a full load of chromite for the mine.  The plaintiffs’ truck was a prime mover with an empty trailer at the back and was not carrying any load. 
Liability
12.	Both parties have alleged that the other party’s driver was negligent, and was the sole cause of the collision.
13.	The defendants’ driver was not served, and did not give evidence.  The plaintiffs’ driver gave affidavit evidence, which must take into account the fact it was not tested in cross-examination.
14.	The plaintiffs’ driver had been driving from 10.00am to 8.00pm on that day, with breaks.  As he had discharged his cargo and was making the return trip back, his vehicle was lighter and able to go faster than a full and heavily laden vehicle.  His affidavit does not contain specific detail of how he “came across” nine parked trucks at about 3.30pm on that day, or how he was able to see among them and recall the registration number of the defendants’ truck.  If he was about 200 meters away, he does not say how he knew that what some of the drivers were drinking was “home brew”.  When he refers to this in para 6 of his affidavit, he does not make any mention of observing that the first defendant was heavily intoxicated, stumbling, and having difficulty walking in a straight line.  He says only that he met with an Operation Supervisor who told him to unload his cargo when he arrived in Lae, which he proceeded to do.
15.	The possibility that the first defendant stopped in the middle of his delivery journey, with a heavy container load of chromite, drank alcohol, became so drunk that he had difficulty walking, and then got into his truck and continued his journey, was clearly one which was so prejudicial that it required some supporting evidence. The plaintiff’s driver was not an impartial witness, he was the driver being blamed by the defendant for causing the accident, and had a motive to impugn the other driver. The defendant was unable to test the evidence in cross-examination, and it was not supported by any independent evidence.
16.	There was no other evidence that the defendants’ driver was drunk.  There was no evidence that the Police intended to or had charged him with Driving Under the Influence, and there was no evidence that either the Police or the defendants’ Operation Manager or anyone else who attended the scene, had found empty bottles of alcohol or other such evidence of alcohol consumption.  The lack of any corroborating evidence, and the untested nature of his allegation, detracted from the credibility of the plaintiff’s driver.
17.	The plaintiffs’ driver did not say in his affidavit that the oncoming truck’s head lights were on full beam.  He does not say that he applied his brakes, or took any other step to avoid a collision. He may have been tired after working for 10 hours.  It is possible to infer from two of the photographs that his vehicle was in the middle of the road before it commenced to skid.
18.	The defendant’s driver did not give evidence.  Another driver gave evidence that the plaintiffs’ vehicle had overtaken him at speed not long before the accident, had approached the bend “with no care of any oncoming vehicle”, and then had the collision.  He did not change his evidence in cross-examination.
19.    The plaintiff’s lawyer referred to the National Court decision in Johannes Somat v George Yame and Anor (2020) PGNC 63, which was also a collision case. However, in that case, the police report was in evidence, and there was also evidence that the driver had been convicted of driving without due care and attention, which could be used to establish negligence.  That was not the case here, where there is no such evidence.
20.	 The maxim of res ipsa loquitur applies where there is no evidence to show that an accident has been caused by the negligence of a person, and the only reasonable conclusion is that the accident was due to the negligence of one or other or both of the drivers.
21.	That is not the case here.  There is some evidence of possible negligence on the part of the plaintiffs’ driver, in that he may have been tired, speeding, and driving around a corner in the middle of the road.  There is also some evidence of possible negligence on the part of the defendants’ driver, in that he may have been drinking, had lights on full beam, and driving in the middle of the road when approaching a corner.
22.	I find that the evidence was not sufficient to show on the balance of probabilities that the defendants’ driver was under the influence of alcohol.  There was evidence from which it could be inferred that the defendant’s truck had its lights on full beam.  There was enough evidence to show on the balance of probabilities that both vehicles were likely to have been travelling in the middle of the road when rounding the corner, and thereby collided in the middle of the road.  As in the old Supreme Court case of Porter v Morrison Knudsen International Co. Inc & anor (1973) PGSC 37:
“Upon that the evidence in this case, two vehicles travelling on a country road in opposite directions collided.  The road was straight and was in good condition.  The surface was dry and the weather was fine.  Upon these facts I find it difficult to escape the conclusion that it is more probable than not that the collision occurred because of negligent act or acts on the part of one of the drivers or perhaps both of them.  ….I am satisfied that it is more probable than not that the accident occurred by reason of the negligence of one or other or perhaps both of the drivers, for whose actions the Defendants were vicariously responsible”.

23.	Having regard to the evidence in this case presented by both parties, I find that the evidence is sufficient to show on the balance of probabilities that both vehicles were being driven in the middle of the road before the collision, so that both drivers failed to remain in their correct lanes, and to keep a proper lookout for oncoming traffic.   I therefore find that each of the drivers was 50% contributorily negligent.

Quantum
24.	The plaintiffs’ evidence is that the pre-accident value of the vehicle was K539,780.00. When added to the towing fee of K11,880.00, the total loss was K550,780.00. The defendants’ evidence is that the pre-accident value of the vehicle was K80,000.00.  When added to the towing fee of K8,910.00, the loss was K88,910.00.  The defendant further claimed K6,421.80 for a Loss Assessors fee, and then made a deduction for an unspecified salvage fee, to make a total claim of K68, 222.80.  This erroneously included a deduction of K20,000.00 for the defendant’s insurance policy excess, so that the total of the loss was actually K88, 222.80.
25.	I find that each driver contributed 50% of the loss sustained as a result of the damage to the other driver’s vehicle.
Vicarious liability
26.	This leads into the next issue, which is whether or not the plaintiff and second defendant can be held vicariously liable for the negligence of their employed drivers.  There was no dispute that each driver had been employed by their respective employers, to lawfully drive their respective vehicles in the course of their employment duties.
27.	However, the second defendant submitted that if the first defendant had consumed alcohol and been driving while intoxicated, he had gone so far out of his employment duties, that his driving was no longer in the course of his employment.  It produced evidence of the Company Policy, which “strictly prohibited” working while under the influence of any intoxicating beverage, including during breaks or meal periods, and during work time in company vehicles.  The Policy stated that the company would not be liable for any damage incurred by any employee while under the influence of alcohol, and that the employee would be responsible for any damage to a third party.
28.	There are many workers compensation cases concerning employees who have breached company policies while carrying out their employment duties.  The majority of those cases are to the effect that a worker must be shown to have been performing an activity which is so far removed from his employment activities that he can be said to be “off on a frolic of his own”.  For instance, a worker driving home from his place of work, who interrupts his journey to attend a social function unrelated to his work, can be fairly said to have broken his work journey and have been off on a frolic of his own.  However, a worker who for instance does not wear his protective helmet which is required to be worn, and who sustains a head injury during the course of his work, has not interrupted his work so as to cause a sufficient break to be engaging in an activity unconnected with his employment.  Although his failure to wear a helmet is a breach of his terms of employment, it simply means that he is carrying out his employment duties in an improper or unauthorized manner, which is nevertheless done while still in the course of carrying out his employment duties. It is an unlawful way of carrying out his lawful duties.
29.	I have already determined that there is insufficient evidence to establish that the defendants’ driver was under the influence of alcohol.  But even if there had been such evidence, it would have shown that the alcohol was consumed during the course of the first defendant’s employment as a driver with the second defendant.  He would have been in breach of the Company Policy, but I am not persuaded that this would have necessarily been enough to take him so far out of the normal course of his employment as to cause a break in the course of his duties. He is more likely to have been carrying out his employment duties in an improper and unauthorized way. Pursuant to the terms of his employment including the Company Policy, his employer could have cross-claimed against him for indemnity.
30.	Both drivers were shown to be driving their employer’s vehicles in the course of their employment.  The plaintiff is therefore vicariously liable for the negligent way in which Casper Sam drove its vehicle, and the second defendant is vicariously liable for the negligent way in which Morris Bomai drove its vehicle.
Conclusion
31.	I therefore find the plaintiff/cross-defendant liable for 50% of the second defendant/cross-claimant’s loss, and I find the second defendant/cross-claimant liable for 50% of the plaintiff/cross-defendant’s loss.
32.	I make the following orders:
	(1)	Judgment is entered for the plaintiff against the second defendant in 			the sum of K275, 390.00.
	(2)	Judgment is entered for the second defendant against the plaintiff in 			the sum of K44, 111.40, in the cross-claim.
	(3)	Interest is payable on each of the unpaid judgments at 					the rate of 8% pa from the date of judgement.
	(4)      Each party is to pay its own costs.
__________________________________________________________________
O’Briens: Lawyers for the Plaintiff/Cross-Defendant
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Second Defendants/Cross Claimant