N9875
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 296 OF 2017 (CCI)

BETWEEN:
MASO TUA HARO
Plaintiff

AND:
RICHARD YOPO
First Defendant

AND:
NATIONAL AIRPORTS CORPORATION
Second Defendant

Waigani:   Dingake J
2022:    22nd July

NEGLIGENCE – claim for damages for personal injuries caused by negligence driving of motor vehicle – plaintiff’s cause of action also based on breach of agreement and misrepresentation by the first defendant where he is alleged to have promised to the plaintiff that he would fix the plaintiff’s vehicle but did not – plaintiff claims General damages for tort of negligence, breach of agreement, pain and suffering and financial hardship – Plaintiff also claims special damages and exemplary damages against the First Defendant – whether  there is no sufficient and cogent evidence that the Plaintiff drove at a high speed, without due care and attention, negligently drove on the left lane without proper look out for the moving traffic, failed to apply the brakes to slow down the vehicle or failed to take a proper look out and or take precaution for the traffic in front leading to the injuries complained of  in the Statement of Claim – there is insufficient evidence to prove on the balance of probabilities that the first defendant was actually negligent – claim is dismissed

Case Cited:

Kimbe v Motor Vehicles Insurance Ltd [2005] PGNC 110; N2860 
Baikisa v J&Z Trading Ltd [2016] N6181

Counsel:

Mr. Lason Tangua, for the Plaintiff
Mr. Mol Bare, for the First and Second Defendants

22nd July 2022

1.	DINGAKE J: The progression of this matter was severely impacted by the onset of Covid – 19.  The trial was conducted and concluded on the 7th of August, 2018, and adjourned for final submissions, which never took place until July, 2022.  The plaintiff sues the First Defendant for causing the accident that took place on the 6th of June 2015 at 6 Mile, which accident the Plaintiff says caused damage to his motor vehicle, Mazda Familia Registration BDC 827 and to himself.

2.	When the matter was called for final submissions the Defendants’ new lawyers filed a Notice of Motion on or about the 18th of July, 2022, seeking to dismiss proceedings on the basis that all claims for deaths and/or bodily injuries arising from motor-vehicle accidents are to be made against the Motor Vehicle Insurance Limited (MVIL) pursuant to Section 54 (1) of the Motor-Vehicle (Third Party Insurance) Act 1974.

3.	I dismissed the application because it is common cause that this defence was not pleaded, pleadings were closed and trial concluded, save for final submissions. The application also came late, about four (4) years after the trial was concluded. It seems clear to me that the defence referred to above amounts to an ambush and offends Order 8 Rule 14 of the National Court Rules (NCR) and is there not permissible.

4.	Consequently, for the reason that Section 54 (1) of Motor Vehicle Insurance Act argument, brought during the course of final submissions was not pleaded and offends Order 8 Rule 14 of the NCR, I will not have regard to it in determining this matter.

5.	Having disposed with the Section 54 (1) of the Motor Vehicle Insurance Act argument, I return to the case as pleaded and an evaluation of the evidence adduced at the trial.

6.	It is commons cause that the First Defendant was at all material times hereto an employee of the Second Defendant and the accident took place during the course of his employment.

7.	The Plaintiff alleges that he suffered severe injuries to his body as a result of the accident and was rushed to the hospital for treatment. He particularizes the injuries he suffered as:

i)	Left eye injury and blindness;
ii)	Injury to cervical spine and upper thoracic spine vertebrate;
iii)	Right thumb injury (Bennett’s fracture and dislocation);
iv)	Tender tissue and swollen;
v)	Mildness in jaw and eye sockets;
vi)	Skin bruises and abrasions;
vii)	Bleeding from head.

8.	The Plaintiff alleges that the accident was caused solely by the First Defendant in that he drove negligently, as particularized in the Plaintiff’s Statement of Claim.

9.	The particulars of the alleged negligence by the First Defendant are that:

i)	He drove at high speed without due care and attention.
ii)	He negligently drove onto the left lane without proper lookout for the moving traffic.
iii)	He failed to step on brake and slow down the motor vehicle.
iv)	He failed to take proper lookout and precaution for the traffic in front.

10.	Additionally, having regard to the pleadings, it also appears that the Plaintiff’s cause of action is based on breach of an agreement and misrepresentation. He alleges that the First Defendant had agreed to fix his motor vehicle and to pay for other damages such as costs for medical expenses. The Plaintiff says that the First Defendant breached the agreement in that he failed to pay for all the costs, medical expenses and damages.

11.	The Plaintiff alleges further that the First Defendant misrepresented to him that he would assist by paying all damages, costs and expenses arising from the road accident.
  
12.	The Plaintiff also alleges that based on the First Defendant’s misrepresentations, he suffered hardship in claiming all medical covers and further loss of his legal rights to claim for medical insurance and compensation for injuries suffered whilst in the cause of his employment.

13.	In consequence of all the above, the Plaintiff claims the following:

i)	General damages for tort of negligence;
ii)	General damages for breach of agreement;
iii)	General damages for pain and suffering and financial hardship;
iv)	Special damages;
v)	Exemplary damages against the First Defendant;
vi)	2% interests pursuant to Law;
vii)	Cost of the proceeding;
viii)	Any other Orders Court deems fit.

14.	The Defendants deny the Plaintiff’s claim in its entirety.  Significantly, the Defendants deny that the accident was solely caused by the negligent driving of the First Defendant.  The Defendants allege that the road was slippery, and that the car driven by the First Defendant veered off the road as a result and hit the Plaintiff’s car.

15.	To succeed the Plaintiff must prove his case on a balance of probabilities.  He must lead cogent evidence that establishes his pleaded case. Put differently, it is not enough to simply allege or make assertions. The allegations that the Plaintiff says constitute negligence as set out in paragraph nine (9) above must be proven to the required standard.

Statement of Agreed & Disputed Facts and Legal Issues

16.	The parties agreed that on the 5th of July, 2015 at about 11:30am, there was a motor vehicle accident at the Morea Tobo Road at 6 Mile, National Capital District, opposite the Hide Away Hotel on the left lane of the road when coming from 7 Mile to 5 Mile.

17.	The said accident involved three (3) vehicles – one a Mazda Familia, Hatch back, Registration No. BCD 827, driven by the Plaintiff and the second vehicle being a Foton Foton, Utility, Reg No. BDQ 813, owned by Pacific Industries Limited driven by Erick Samuel and the third vehicle was a Toyota Land Cruiser, Registration No. BEO 891, driven by the First Defendant.

18.	The parties agreed that at that time of the accident the vehicle driven by the Plaintiff had stopped and four (4) vehicles ahead of the Plaintiff’s vehicle had also stopped because there was a vehicle ahead of all of them that had broken down causing a traffic jam.

Issues

19.	In the Statement of Agreed and Disputed Facts and Legal Issues the parties have agreed that the issues before the Court are as follows:

a)	Whether or not the First Defendant was responsible for causing the vehicle accident?
b)	Whether or not the First Defendant was careless in causing the accident?
c)	Whether or not the Defendants should be responsible for the losses and damages suffered by the Plaintiff owing to the vehicle accident?

Liability

20.	It is trite learning that to establish liability the Plaintiff needs to satisfy five (5) basic elements of tort of negligence:

i)	Firstly, the driver owed a duty of care to the Plaintiff;

ii)	Secondly, the driver breached that duty, i.e. was negligent;

iii)	Thirdly, the driver’s negligent conduct caused injury to the Plaintiff;

iv)	Fourthly, the Plaintiff’s injuries were not too remotely connected to the driver’s conduct, and;

v)	Fifthly, the Plaintiff has not contributed to own injuries. Kumbe v Motor Vehicles Insurance Ltd [2005] PGNC 110: N2860 Cannings J followed in Baikisa v J&Z Trading Ltd [2016] N6181, Cannings J.

Evidence

21.	 The trial was conducted on the basis of Affidavits.  The parties agreed that they would be no Cross Examination.

22.	I have assessed the evidence tendered by the Plaintiff with great care having regard to the case as pleaded.  None of the Affidavits upon which the Plaintiff places reliance for his case proves that the First Defendant was negligent as particularized in the Statement of Claim.  Certainly there is no sufficient and cogent evidence that the Plaintiff drove at a high speed, without due care and attention, negligently drove on the left lane without proper look out for the moving traffic, failed to apply the brakes to slow down the vehicle or failed to take a proper look out and or take precaution for the traffic in front leading to the injuries complained of  in the Statement of Claim.

23.	The evidence by the Defendant that the road was slippery and that this could explain the car veering off and hitting the Plaintiff’s vehicle has not been shown to be false and this raises serious doubts where the cause of accident was the First Defendant driving at a high speed.

24.	There is also no sufficient proof of the agreement, the Plaintiff pleaded or misrepresentation.

25.	Having regard to my assessment of the evidence it is my conclusion, that the evidence tendered by the Plaintiff does not meet the required threshold of a balance of probabilities, that the Plaintiff is required to meet, of he were to succeed.

26.	In the result:

a)	The Plaintiff’s claim is dismissed with costs.

_______________________________________________________________
Warner Shand Lawyers: Lawyers for the Plaintiff
Lawyer for the Defendants:     No Appearance