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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO.1157 OF 2017
BETWEEN
DIRO GABI
Plaintiff
AND
VANUA VANUA
Defendant
AND
HEBOU CONSTRUCTIONS (PNG) LIMITED
Second Defendant
Waigani: Linge A J
2022: 21st February, 02nd March
NEGLICENCE – Motor vehicle accident – duty of care – whether breach of duty of care – contributory negligence – vicarious liability
The case arose from a motor vehicle accident that occurred on 5 May 2012 along the Magi Highway in the Central Province involving a Toyota Land Cruiser Utility owned by the Plaintiff and a three (3) ton long wheelbase truck driven by the First Defendant. The Plaintiff alleges that the accident was caused by the negligence of the First Defendant and claims damages and losses he sustained. The First Defendant deny any liability and trial of the matter was conducted.
Held
1.The Plaintiff has not established a cause of action in negligence against the First Defendant.
2. The Plaintiff failed to prove that the damage to the Land Cruiser was a result of the negligence of the First Defendant.
3.The First Defendant is not liable in Damages for alleged damage and loss as claimed.
Cases Cited:
Baikisa v J & Z Trading Ltd [2016] N6181
Bill v RD Tuna Canners Ltd [2017] N6649
Kanit (t/a City Link) v National Airports Corporation Ltd) [2021] SC2084
Guard Dog Security Services v Mathews (2019) SC1861
Nare v State (2017) SC 1584
Tony David Raim v Simon Korua (2010) SC1062
Catholic Diocese WabagBoard of Trusteesv Enga Provincial Government, (2011) N4562
Andrew Moka v MVIL (2004) SC729
Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409
Kelly v Yakasa (2020) N8425
Jack Gopave v Francis Kugame & The State (2003) N2482
Kumbe v MVIL [2005] N2860
PNG Institute of Medical Research v PNG Banking Corporation (1999) N1934
TRIAL
Counsel:
Ms. E Waeda, for the Plaintiff
Ms. L David, for the Defendants
6th March, 2022
1. LINGE A J: A ruling on the trial of the proceeding conducted on the 21 February 2022. It relates to a motor vehicle accident in which the plaintiff alleges that the accident was caused by and because of the First Defendant’s negligence and therefore, the First Defendant and Second Defendant as employer, are liable for damages and losses sustained by the Plaintiff.
2. At the Trial both parties are represented by counsel and evidence are adduced by tendered affidavits.
Facts
3. The Plaintiff’s claim is based on a motor vehicle accident that occurred on 5 May 2012 along the Magi Highway towards Kwikila in the Central Province (hereinafter “the Accident”). The Accident involved a Toyota Land Cruiser Utility, registration number BCS 470 (hereinafter “the Land Cruiser”) and a three (3) ton long wheelbase truck, registration number BCL 349 (hereinafter “the Truck”) owned by the Second Defendant.
4. Plaintiff is the owner of the Land Cruizer which he claims was damaged beyond repair because of the negligent driving of the First Defendant resulting in him purchasing a replacement vehicle.
5. On the 23 March 2020 the plaintiff filed this proceeding against the First and Second Defendants alleging that the Accident was a result of the negligent driving of the Truck by the First Defendant, and the claim is against both defendants for damages and resulting losses sustained by the Plaintiff.
For the Plaintiff
6. The plaintiff relies on the following affidavits: (i) Affidavit in Support of Gariga v Kuriki Gabi filed 26 October 2017; (ii) Affidavit of Diro Gariga Gabi filed on 26 October 2017; (iii) Affidavit by Mathew Garry filed on 26 October
2017; and (vi) Affidavit in Support by Diro Gabi on 15 October 2017.
For the Defendants
7. The First and Second Defendants rely on the following affidavits:
(i) Affidavit in Support of Vanua Vanua filed on 27 November 2020; and (ii) Two affidavits by Mohan Kumar Gangachar filed on 27 November 2020 and on 24 June 2021 respectively.
Primary Evidence for the Plaintiff
8. The plaintiff primarily relies on the affidavit of Mathew Garry filed on 26 October 2021 wherein he deposes as follows:
(a) He was the driver of the Land Cruiser and there were six (6) other passengers in the Land Cruiser, being his wife, Loana Hulana Gari, his son, Kanau Gari Junior and four (4) other men, namely Gimona Kuriki, Mea K. Gamoga, Begava L. Wele and Albert Ikini.
(b) His wife, Loana Hulana Gari sat offside in the Land Cruiser with their son, Kanau Gari Junior.
(c) He was driving uphill and while midway towards the first corner of Saroa village before passing the Saroa United Church, when he saw the approaching vehicle owned by the Second Defendant swung around the corner with the headlights on.
(d) When he noticed how the First defendant swung around the corner overlapping his lane at the top, he slowly brought the Land Cruiser to a slow stop to avoid colliding with the truck whilst moving further up his lane.
(e) He could not risk moving his vehicle to the left-hand side of the
road because of the slope that would cause serious injuries or even
death to this family members on board the Land Cruiser if the
approaching vehicle crashed into them.
(f) At that moment, he was figuring out how he could save his family members on board the Land Cruiser when in a flash of a second, he heard a bang on the Land Cruiser.
(g) The truck came on high speed towards him and at the moment of
collision, he stepped onto the brakes and held on the steer firmly to avoid
the Truck from pushing him downhill and from overturning.
(h) He only moved his body slightly sideways towards the left to avoid being crushed against the driver door by seeing how the Truck was approaching him.
(i) When the truck bumped the Land Cruiser they were in, it pushed them downhill about 10 meters back from the original position the Land Cruiser first stopped, and where the accident initially occurred.
(j) He sat in the driver seat and kept holding onto the steer firmly whilst his leg on the brake and felt the truck moving them down until all of a sudden, the right front tyre of the Land Cruiser busted and the Land Cruiser gripped onto the pitch on the road. At that moment the Truck let go off the Land Cruiser crushing it onto the right-hand side of the Land Cruiser and down into the drain.
Primary Evidence for the Defendants
9. Affidavit of Vanua Vanua filed on 27 November. He deposes that:
(a) He is the First Defendant and was the driver of the Truck and was
formerly employed by the Second Defendant.
(b) On 5 May 2012, at or about 10:00pm, he was driving along the Magi Highway towards Kwikila in the Central Province at a speed of about 50 to 60km per hour and at the bend in the road about 30 meters before the culvert bridge, he saw the light of another vehicle approaching at high speed from the opposite direction.
(c) The vehicle approaching him from the opposite direction was the
Land Cruiser driven by Mathew Garry at highspeed. The Land Cruiser
veered off its lane into his lane.
(d) He was unable to avoid collision with the Land Cruiser given the speed at which the Land Cruiser was travelling towards the Truck.
(e) The Land Cruiser collided with the Truck hitting the right side, (driver’s side) of the Truck.
(f) Due to the high speed at which the Land Cruiser was driven, the
impact of the collision with the truck pushed the truck into the drain on his left side and as a result, he sustained serious injuries
to his right hip and leg. He also had one of his toes on his right foot amputated as a result.
Submissions for Plaintiff
10. Ms, Waeda of Counsel for the Plaintiff submits that in order to prove negligence by the First Defendant, the Plaintiff must establish the following elements:(1) Defendant owed a duty of care; (2) Defendant breached that duty of care; (3) Damages suffered as a result of that breach of duty of care; and (4) damage or injury not too remote.
11. For that proposition Counsel cites Baikisa v J & Z Trading Ltd, [2016] N6181and Bill v RD Tuna Canners Ltd, [2017] N6649.
Proof of Accident
12. Counsel submits and relies on the evidence of Mathew Garry and the Police Road Accident Report (hereinafter “the Report) which states that the First Defendant was suspected not only of drunk driving but was also inattentive.
13. On the other hand, the Report states that the driver of the Plaintiff’s vehicle Mathew Garry was not suspected to be drunk. She submits that the Report is an independent proof of the accident as well as the claim by the Plaintiff that the First Defendant is negligent in his actions due to his being under the influence of alcohol.
Duty of Care
14. Ms.Waeda of Counsel for the Plaintiff submits that the First Defendant owed a duty of care to the Plaintiff’s driver and as he was driving a registered motor vehicle on a public road, adherence to the road safety rules is of paramount consideration.
15. She also submits that the First Defendant breached that duty of care when he drove under the influence of alcohol as established in the Report which also states that, the First Defendant failed to drive at a reasonable speed, failed to slow down while turning the corner, failed to drive on his own lane and failed to avoid the collision with the Plaintiff’s vehicle.
16. She also submits that due to the negligent driving of the Second Defendants’ vehicle, damages were caused to the Plaintiff’s Land Cruiser as shown in the photographs in Mathew Garry’s affidavit.
17. Counsel submits that the damage caused are not too remote as the Assessment report obtained by the Plaintiff in respect of the damage done to the Land Cruiser states that the damage to the said vehicle was beyond repairs, so he purchased a replacement vehicle.
Vicarious Liability
18. Ms. Waeda submits that while the evidence is that the First Defendant was employed by the Second Defendant at the time of the Accident what is in issue is whether the First Defendant committed the tort during the course of his employment with the Second Defendant.
19. She refers to Kanit (trading as City Link v National Airports Corporation Ltd) [2021] SC 2084 which endorses the common law position that to determine vicarious liability, it is necessary to prove that: (1) a tort has been committed; (2) the tort was committed by an employee; and (3) the tort was committed in the scope or course of his or her employment.
20. The Kanit case followed the Supreme Court cases of Guard Dog Security Services v Mathews (2019), SC 1861 and Nare v The State (2017), SC 1584, which held “A wrongful act is deemed to be done by an employee in the course of his or her employment if it is either-
(a) authorized by the employer; or (b) is a wrongful and unauthorized mode of doing some act authorized by the employer.
An employer will be liable even for acts which he not authorized, provided they are sufficiently connected with acts which he has authorized”: Guard Dog Security Services v Mathew (supra); Nare v The State (supra).
21. The Kanit case further held that “it is neither possible nor desirable to define precisely when conduct will fall within the course or scope of employment. Each case must be determined according to its own facts and circumstances. The critical question is whether the employee’s conduct is sufficiently connected with his or her employment. In determining the nature of employment, a broad approach should be adopted.”
22. In the present case, Counsel for the Plaintiff submits that the actions of the First Defendant are sufficiently connected with his employment because at the time of the Accident, he was employed as a driver of the Second Defendant and had full usage of the vehicle owned by the Second Defendant. Hence on a balance of probabilities, she submits that the First Defendant’s actions during the time of the Accident were sufficiently connected with his employment as a driver.
Liability to pay Damages
23. As to whether the Defendants are liable to pay for damages to the Plaintiff as a result of the First Defendant’s actions, Counsel relies on and submits that there is adduced evidence of ownership of the Land Cruiser by the Plaintiff as shown bearing the MVIL registration number BCS 470 and certificate.
24. Counsel also submits that the Plaintiff’s dealing with Ela Motors after the Accident and the damage to the Land Cruiser, and the finding of damage beyond repair resulting in the Plaintiff’s purchasing a replacement vehicle for K85,000.00 is proof of ownership of the damaged Land Cruiser.
25. The Plaintiff further submits that General Damages were suffered by him for the loss of his enjoyment of his vehicle and the hardships he faced having to use the PMV and to purchasing a new replacement vehicle.
26. Based on all the above, Ms.Waeda submits that the Second Defendant is vicariously liable for the negligent driving of the Truck
by the first defendant resulting in the Accident and damage done to the Land Cruiser in the following sum:
(a) Replacement of vehicle: K 85,000.00
(b) Maintenance and service of replacement vehicle: K 28,464.05
(c) Usage of Public Motor vehicle transport: K 1,338.00
Total K114,804.05
Submission for the Defendants
27. Ms. David for the Defendants posed the first issue and that is whether the First Defendant is liable for the damage done to the
Land Cruiser vehicle?
28. She contends that each of them is not jointly or severally liable to the plaintiff and submits that to establish a claim for negligence,
the Court must be satisfied that the plaintiff has proven the following elements:
(1) The defendant owed a duty of care;
(2) The defendant breached that duty; and
(3) The breach of duty caused the damage.
29. Counsel cites Tony David Raim v Simon Korua, (2010) SC1062, to support the above proposition. At p.9 the Supreme Court held:
“For it is trite, where a party alleges negligence against another, it must prove the following elements:
Duty of Care
30. Counsel cites Catholic Diocese Wabag Board of Trustees v Enga Provincial Government, (2011) N4562, wherein at p.4 the National Court described duty of care in the following terms:
“A person who undertakes an activity or creates a situation which could reasonably harm another person, such as driving a car or giving
financial advice, owes a duty of care to the other person...”.
31. She also cites Andrew Moka v MVIL (2004) SC729, where at p.13 the Supreme Court says:
“The standard of care attributed to a driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver, see also, Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409 which states, “He also owes a duty of care to other road users. Once he breaches that duty, he is liable in damages for negligence.”
32. She submits that the driver of the Land Cruiser and the first defendant owed a duty of care to each other as road users.
Breach of Duty
33. Counsel acknowledges that the Plaintiff pleads at paragraphs 8, 9, 10 and 11 of the Statement of Claim, that the Accident was caused by or due to the First and Second Defendant’s negligence due to following negligent acts of the First Defendant: (1) Driving at a high speed; (2) Failing to slow down when turning a corner; (3) Failing to drive in his own lane; (4) Failing to avoid collision with the plaintiff’s vehicle; and (5) Driving under the influence of alcohol
34. However, Counsel contends and submits that the Accident was caused by the negligence of Mathew Garry, the plaintiff’s driver whose evidence Counsel submits is inconsistent with and does not correspond to the damages sustained by each of the vehicles and the injuries sustained by the persons travelling in both vehicles.
35. Ms. David submits that if Mathew Garry’s vehicle was almost stationary when it was hit by the First Defendant’s three (3) ton long wheelbase vehicle travelling downhill at high speed, the damage sustained by the Land Cruiser would have been much more significant than what is revealed in the photographs contained in the evidence of Diro Gariga, thus, a reasonable inference from the combination of these elements described above would be that the Land Cruiser would have been sent crashing downhill due to the mass and velocity of the three (3) tonne truck.
36. She submits that the evidence of the plaintiff on injury and damage to the Land Cruiser is inconsistent with the accident as the passengers in the Land Cruiser sustained superficial injuries only, and the Land Cruiser did not sustain damage that would suggest it was struck head on at high speed by a three (3) ton truck.
37. Further, the injuries sustained by the First Defendant especially to his right foot toe as a result of the Accident which led to amputation, and lack of injury to the driver of the Land Cruiser, Mathew Garry is consistent with the evidence adduced by the First Defendant she submits.
38. Counsel submits therefore that the evidence, the Court should accept is the version of events submitted by the First Defendant. That is, the Land Cruiser veered off from its lane and into the lane of the First Defendant and struck the Truck and that the damage to the Land Cruiser suggest that the Land Cruiser was the vehicle that ran into the truck and not the truck crashing into the Land Cruiser.
39. She further submits that there is no evidence adduced by the plaintiff that the First Defendant was driving well below the standard of care expected of him as a road user or committed a particular act or omission that was negligent or that any such act or omission caused the accident on 5 May 2012.
40. Accordingly, Ms. David submits that the First Defendant did not breach the alleged duty owed to the Plaintiff. On the contrary, she submits that the Accident was caused by the negligent actions and omissions of the driver of the Land Cruise, Mathew Garry.
Causation
41. Counsel submits that the First Defendant sustained serious injuries to his right hip and leg resulting in the amputation of one of his toes on his right foot as a result of the Accident and negligence of the driver of the plaintiff’s Land Cruiser.
42. As regards the Report of 8 June 2012 allegedly obtained by Police, Counsel submits that it should not be considered on the basis of it being hearsay evidence. This is clear where the Report states “the driver was believed drunk was speeding and on approaching the hump at Saroa that leads downhill, whilst on high speed hit the hump the vehicle swerved to the roads right side then back onto the lane.”
43. She cites Jack Gopave v Francis Kugame & The State (2003) N2482, in which the National Court said:“The hearsay rule is a common law creation which prohibits witnesses in court repeating out of court statements made by others in order to establish the truth of those statements.” This statement is hearsay because it is made by somebody other than the witness and its admission will have a prejudicial effect on the plaintiff’s case and would have a bearing on the ultimate result. It will not be hearsay if the maker of the statement is brought before the Court and evidence led on the statement with opportunity given to Defence Counsel for cross-examination...”
44. Counsel submits that Accident had not been properly investigated and evidence adduced by the Investigating Police Officer, Benjamin Naraboi did not contain the details of the purported investigation conducted on site, date of investigation, blood test confirming the alcohol level of the First Defendant, the names of the witnesses interviewed, and techniques used to determine his findings.
45. In relation to the first issue, Counsel submits that there is no evidence adduced by the Plaintiff to prove that the accident was caused by the First Defendant’s negligence and as such, he is not liable for damages and losses sustained by the Plaintiff.
Vicarious Liability
46. Ms. David posed the second issue which is whether the Second Defendant is vicariously liable for the action sand omissions of
the First Defendant.
47. Counsel states that the basic principles of law on vicarious liability of a
company for the misconduct of its employees are well settled in this jurisdiction. She cites Kelly v Yakasa (2020) N8425, at [72] the National Court described vicarious liability in the following terms:
“Essentially, vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility.”
48. Counsel also cites Ome Ome Forests Ltd v Ray Cheong (2002) N2289 and, Guard Dog Security Services Ltd v Richard Mathews (2019) SC 1861, wherein in the latter case, the Supreme Court at [9] said:
“It has been long established at common law that an employer will be vicariously liable for the torts of its employees that are committed ‘in the course of employment’. The question whether the conduct occurs in ‘the course of employment’ has always been of degree.
49. Counsel concedes that in the Statement of Claim the Plaintiff pleads that the Second Defendant is vicariously liable for the actions or omissions of the First Defendant on the basis that at the First Defendant was:
(a) An employee of the second defendant
(b) The driver of the truck owned by the second defendant; and
(c) Had been given the twenty-four hours right to use the truck.
50. However, she submits that to establish a claim for vicarious liability, the Court must be satisfied that the plaintiff has proven on the balance of probabilities, the following elements:
(a) The person who committed the tort must be an employee;
(b) A tort must be committed; and
(c) Tort must be committed in the course of or scope of his employment.
51. She submits that the evidence adduced by the Plaintiff does not prove on the balance of probabilities that the accident was caused by the negligence of the First Defendant.
52. Also, she submits that the liability of the Second Defendant arises when the First Defendant actually caused the injury and damage to the Plaintiff’s vehicle during the course of his employment with the former.
53. Ms. David submits that the Accident of 5 May 2012 at 10:00pm involving the Truck driven by the First Defendant on his own accord after hours and outside the scope of his work.
54. She submits that the Plaintiff has not adduced evidence to prove on the balance of probabilities that the accident was caused by the First Defendant in the scope of his employment with the Second Defendant.
55. Accordingly, Counsel submits that the Second Defendant cannot be held liable for any loss or damages allegedly sustained by the Plaintiff.
Damages
56. Finally on the issue whether the defendants are liable to pay for damages as a result of the first defendant’s actions, Ms.
David submits that the
plaintiff has failed to prove on the balance of probabilities that the accident was caused because of the first defendant’s
negligence.
57. Accordingly, the First and Second Defendants deny liability for damages or losses allegedly sustained by the Plaintiff.
Law
58. The tort of negligence arises when a person fails to exercise reasonable care and skill while undertaking his/her duty of care obligations. In vehicle accident cases, what needs to be determined is whether an accident will result in legal liability against whom it is alleged.
59. It is settled law that the onus of proving negligence rests with the party alleging it. That is, the Plaintiff who alleges negligence must discharge that onus on the balance of probability to determine negligence on the part of the party against whom it is alleged.
60. Courts in this jurisdiction have adopted four (4) elements which must be proven to establish negligence. These elements are: (1) duty of care; (2) breach of that duty; (3) causal connection; and (4) actual loss or damage resulting from the accident, see Kumbe v MVIL [2005] N2860; Baikisa v J & Z Trading Ltd, [2016] N6181 and Bill v RD Tuna Canners Ltd, [2017] N6649.
61. The Supreme Court in Tony David Raim v Simon Korua, (2010) SC1062, at p.9 held:
“For it is trite, where a party alleges negligence against another, it must
prove the following elements:
1. There is a duty of care owed by one party to the aggrieved other;
party; and
3. As a result of the breach of the duty of care, the aggrieved party
suffers injury which must be compensated.”
Duty of Care
62. The Plaintiff must establish that a duty of care exists between the Plaintiff and the negligent person or party. The duty of
care is an obligation required by law to be careful or to act reasonably.
63. A driver of a motor vehicle has a duty to be careful to other road users. In Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409, the Court held “a driver of a motor vehicle owes a duty of care to other road users. That the standard of care attributed to a driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced,
and objective driver. Once he breaches that duty, he is liable in damages for negligence”
64. The Supreme Court in Andrew Moka v MVIL, (2004) SC729, at p.13 held: “The standard of care attributed to a driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver.”
65. In Catholic Diocese Wabag Board of Trustees v Enga Provincial Government, (supra), wherein at p.4 the National Court described duty of care in the following terms: “A person who undertakes an activity or creates a situation which could reasonably harm another person, such as driving a car or giving financial advice, owes a duty of care to the other person
66. The Plaintiff alleges negligence by the First Defendant, driver of the three (3) ton Truck and that is the reason for claim of a duty of care to be careful and to act reasonably. The test is to ascertain whether the First Defendant exhibited the standard of care, which is an objective one, measured by the standard of a skilled, experienced, and objective driver. Once he breaches that duty, he is liable in damages for negligence.
67. Thus, in considering whether the First Defendant exhibited the attributes of a skill and objective driver, it is incumbent upon me to also exercise the same level of scrutiny to the driver of the Plaintiff’s Land Cruiser. Thus, if I find negligence on the part of the First Defendant, then using the same criteria determine whether the other driver has contributed to the breach of the same duty of care to all road users including pedestrians and to each other.
68. While I find both the First Defendant and Mathew Garry as drivers of each respective vehicles owe a duty of care to each other and other road users, it is the failure to exercise reasonable care or failing to do something that a reasonable careful person would do that give rise to the breach of that duty.
69. Plaintiff alleges breach of duty in his Statement of claim in which he pleads that the Accident was caused by or due to the First Defendant’s negligence by: (1) Driving at a high speed; (2) Failing to slow down when turning a corner; (3) Failing to drive in his own lane; (4) Failing to avoid collision with the plaintiff’s vehicle; and (5) Driving under the influence of alcohol.
70. The Plaintiff must prove that the First Defendant had breached that duty of care, but he has not done so. A party who alleges negligence and /or contributory negligence must adduce appropriate evidence to substantiate what he/she alleges, see PNG Institute of Medical Research v PNG Banking Corporation, (1999) N1934; Andrew Moka v Motor Vehicle Insurance Trust Ltd (supra).
71. The Plaintiff relied to a great extent on the Police Accident Report as evidence in support of its allegation against the First Defendant where it states, he was driving under the influence of alcohol, failure to drive at a reasonable speed, failed to slow down while turning the corner, failed to drive on his own lane and failed to avoid the collision with the Plaintiff’s vehicle.
72. I find that the Police Accident Report has no probative value as it lacks details of the purported investigation conducted on site, date of investigation, blood test confirming the alcohol level of the First Defendant, the names of the witnesses interviewed, and techniques used to determine his findings.
73. It is hearsay in substance and law as can be deduced from the following “the driver was believed drunk was speeding and on approaching the hump at Saroa that leads downhill, whilst on high speed hit the hump the vehicle swerved to the roads right side then back onto the lane. “This is not direct evidence but echoing what the Police Investigating officer might have heard.”
74. The law on hearsay evidence is summarized in Jack Gopave v Francis Kugame & The State (2003) N2482, referred to me by Counsel for the Defendants which I adopt here, “The hearsay rule is a common law creation which prohibits witnesses in court repeating out of court statements made by others in order to establish the truth of those statements. This statement is hearsay because it is made by somebody other than the witness and its admission will have a prejudicial effect on the plaintiff’s case and would have a bearing on the ultimate result...”
75. Comparing the evidence of parties, I accept the Submission of Counsel for the defendant that if Mathew Garry’s vehicle was almost stationary as he claims when it was hit by the First Defendant’s three (3) ton long wheel base vehicle registration number BCL 349, travelling downhill at high speed, the damage sustained by the Land Cruiser would have been much more significant than what is revealed in the photographs contained in the affidavit evidence of Diro Gariga.
76, The reasonable inference from the above scenario is that the Land Cruiser would have been sent crashing downhill due to the load,
and velocity of the three (3) tonne truck and not just pushed back a mere 10 metres as stated in the evidence of Mathew Garry.
77. Also, as there is insufficient evidence adduced by the Plaintiff to prove that the First Defendant failed to exercise reasonable care
expected of him as a
road user or committed a particular act or omission that was negligent or that any such act or omission caused the accident, I therefore
accept as the true version of what occurred on the on 5 May 2012 to be that the Land Cruiser veered off from its lane and into the
lane of the First Defendant and struck the
Truck and ended up on the left side of the Truck and the damage to the Land
Cruiser was a result of it crashing into the Truck and not vice versa.
Causation
78. This is the principal of law which requires the plaintiff to prove a causal connection between the breach of duty and the resulting injury or damage. That is, a plaintiff must show that the damage or injury suffered came about as a result of the breach of duty of care.
79. The Plaintiff failed to prove causal connection between any breach of duty and the damage to the Land cruiser and any injury sustained. He clearly misconstrued the notion and merely relies on the Assessment report obtained by the Plaintiff from Ela Motors on the damage done to the Land Cruiser and concluding that the damage to the said vehicle was beyond repairs.
80. On the other hand, seriousness of the injury occasioned upon the First Defendant to his right hip and leg resulting in the amputation of one of his toes on his right foot is a direct result of the Accident and negligence of the driver of the plaintiff’s Land Cruiser.
Damage and Injury
81. While the Plaintiff has proven ownership of the Land Cruiser bearing the MVIL registration number BCS 470 and registration certificate papers, I am unable to verify from evidence if indeed Ela Motors found in its assessment that the damage to the Land Cruiser was beyond repair and on what basis the Plaintiff was able to purchase a replacement vehicle for K85,000.00.
Vicarious Liability
82. The basic principles of law in relation to vicarious liability are well settled in this jurisdiction.
83. I endorse the ruling in Kelly v Yakasa (2020) N8425, at [72] the National Court described vicarious liability in the following terms:
“Essentially, vicarious liability is a common law principle by which the legal person is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility.”
84. I also note Ome Ome Forests Ltd v Ray Cheong (2002) N2289, where at [34] the doctrine of vicarious liability was stated as:
“The company can only be liable for the acts of its employees if they act in the course of their employment pursuing their employers’ (the company’s) interest. If they are out on a frolic and detour of their own, they could become personally liable.”
85. In Guard Dog Security Services Ltd v Richard Mathews (2019) SC 1861, at [9] the Supreme Court said:
“It has been long established at common law that an employer will be vicariously liable for the torts of its employees that are committed “in the course of employment. The question whether the conduct occurs in “the course of employment” has always been of degree.”
86. The First Defendant has not deduced sufficient evidence to show the nature of his relationship at the time of the Accident with the Second Defendant. There is no evidence of the term of his usage of the Truck, the use of the Truck afterhours, and whether he was actually doing company’s errands or driving in the course of his employment or was he pursuing his own interest.
87. I find that that the Second Defendant is not vicariously liable and the First Defendant drove the Truck resulting in the Accident during his own time and not in the course of his employment.
88. I do not consider any General Damages allegedly suffered by the Plaintiff for the loss of his enjoyment of his vehicle and the alleged hardships he faced having to use the PMV and to purchasing a new replacement vehicle.
Order
1. The Plaintiff has not established a cause of action in negligence against the First Defendant.
2. The Second Defendant is not vicariously liable.
_______________________________________________________________
Public Solicitor: Lawyers for the Plaintiff
Pacific Legal Group: Lawyers for the Defendants
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