N10628

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 411 OF 2017

BETWEEN:
AMON YAMALA 
trading as POTOYO TRANSPORT
Plaintiff

AND:
MANASSEH SUKAP
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Lae:  David, J
2022:  9th, 13th, 14th May
2023:  25th November

TORT – claim against the State for tort committed by member of Papua New Guinea Defence Force – vicarious liability – plaintiff required to specifically plead s.1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act and then prove that officer committed the tort in the course of his employment while performing or purporting to perform functions conferred on him by law as a soldier - hearsay evidence- proof must be by admissible evidence which is sufficient, cogent and convincing- State not vicariously liable.

Cases Cited:

Papua New Guinean Cases
Shaw v Commonwealth of Australia [1963] PNGLR 119
Supreme Court Reference No.4 of 1980 [1982] PNGLR 65
MVIT v Pupune [1993] PNGLR 370
MVIT v Etape [1995] PNGLR 214
PNGBC v Tole (2002) SC694
Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & Ors (2008) N3340
Reference by the East Sepik Provincial Executive (2011) SC1154
Pinda v Inguba (2012) SC1181
Galem Falide v Registrar of Titles and The State (2012) N4775
Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446
Nare v The State (2017) SC1584
Kisa v Talok (2017) SC1650
Kingston v QBE Insurance (PNG) Ltd (2018) SC1698 
Kamuri v Pomoso (2021) SC2071
Mindili v Kuimo (2021) N9214

Overseas Cases
R v Sharp [1988] 1 All ER 65

Treatise Cited:
JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996

Counsel:
Luke Vava, for the Plaintiff
Salome Maliaki, for the Second Defendant

JUDGMENT

25th November 2023

1.	DAVID, J:  INTRODUCTION: This is the decision of the Court after a contested trial on liability and quantum.

2.	By writ of summons endorsed with a statement of claim filed on 1 May 2017 (the writ) and subsequently amended on 27 October 2021, the Plaintiff claims damages under various heads against the defendants which he claims arises from a motor vehicle accident involving a motor vehicle owned by the Plaintiff namely, a Toyota Land Cruiser 10 seater bearing registration number LBE 150 (the Plaintiff’s Vehicle) driven by one Titus Pena, now deceased, which was heading towards Kainantu and a motor vehicle, a Toyota Land Cruiser 10 seater bearing registration number HAQ 304 (the Offending Vehicle) driven by the First Defendant, who was a soldier in the Papua New Guinea Defence Force (PNGDF), travelling in the direction of Goroka which occurred on 14 December 2014 between the hours of 3:00 pm and 3:30 pm along the Okuk Highway somewhere at Benabena in the Eastern Highlands Province (the accident) and caused by the negligence of the First Defendant. It is alleged that as a result of the accident, all persons in the Plaintiff’s Vehicle suffered harm including two deaths and three sustaining injuries and the Plaintiff’s Vehicle was damaged beyond repair.  It is further alleged that at the time of the accident, the First Defendant was heavily intoxicated and under the influence of alcohol.  The Plaintiff claims that the First Defendant’s wrongful action and or omission was committed in the ordinary course of his employment and while performing his duties with his employer, the Second Defendant therefore the Second Defendant is vicariously liable pursuant to s.1 of the Wrongs (Miscellaneous) Provisions Act. 

3.	The First Defendant has not shown any interest in defending the action despite being served with the writ on 19 June 2017 (Order of 8 February 2019).  In fact, a glean of the Court’s records shows that on 5 June 2019, the Court entered default judgment against the First Defendant and ordered damages to be assessed. 

4.	By defence filed on 5 June 2019, the Second Defendant denies liability.  It in essence avers that:

1.	Whilst the First Defendant was an employee of the Department of Defence and ultimately the Second Defendant, it was only responsible for the First Defendant’s lawful conduct and or omission giving rise to a tort when committed within the confines and limits of his lawful and official duties as a soldier;  
2.	It was not vicariously liable for the unlawful action or omission of the First Defendant giving rise to a tort whilst under the influence of intoxicating liquor or drug and driving a motor vehicle on a public street without due care and attention and causing an accident contrary to ss.17 and 18(a) of the Motor Traffic Act resulting in the loss of lives; and
3.	The First Defendant was personally liable for his own negligent conduct.

EVIDENCE

5.	The Plaintiff relies on and reads the following affidavits:

1.	Affidavit of Amon Yamala sworn on 23 April 2021 and filed on 26 April 2021 (Exhibit PA);
2.	Affidavit of Jeffrey Walapi sworn on 8 September 2020 and filed on 9 September 2020 (Exhibit PB);
3.	Affidavit of Besta Yamala sworn on 15 September 2020 and filed on 18 September 2020 (Exhibit PC);
4.	Affidavit of Paul Poto Kawaipa sworn on 6 November 2020 and filed on 9 November 2020 (Exhibit PD); and
5.	Affidavit of Cedric Poto sworn on 17 November 2020 and filed on 24 November 2020 (Exhibit PE).

6.	The Second Defendant relies on and reads the Affidavit of Salome Maliaki sworn on 13 March 2019 and filed on 5 June 2019 (Exhibit D1).

7.	The affidavits were tendered and admitted into evidence by consent.

8.	No cross-examination of the deponents of the affidavits was conducted.  

UNDISPUTED FACTS 

9.	I find from the pleadings, evidence and submissions of counsel that the following principal facts are not disputed:

1.	The Plaintiff is the owner of the business name called Potoyo Transport which was registered on 19 March 2015.
2.	The Plaintiff is self-employed and operates a hire car business under the business name, Potoyo Transport in Lae.
3.	The Plaintiff was issued with a Certificate of Compliance (Income Reporting System) No.026511092, Taxpayer Identification Number 500017769 by the Internal Revenue Commission on 14 June 2019.
4.	The Plaintiff’s Vehicle was a blue Toyota Land Cruiser, 10 seater, bearing registration number LBE 150.
5.	On 12 December 2014, a Mr Kupa Kupoi hired the Plaintiff’s Vehicle for his use for two days. 
6.	One Titus Pena, now deceased was the driver of the Plaintiff’s Vehicle. 
7.	The First Defendant was an employee of the Second Defendant through him being employed by the Department of Defence as a member of the PNGDF based at Moem Barracks.
8.	The Second Defendant is the ultimate employer of public servants.
9.	The Offending Vehicle, a Toyota Land Cruiser 10 seater bearing registration number HAQ 304 owned by Niugini Hire Cars was driven by the First Defendant.
10.	On 14 December 2014 at about 3:00 pm, the Plaintiff’s Vehicle and the Offending Vehicle collided head-on along the Okuk Highway at a bend somewhere at or near Sokei village, Benabena District in the Eastern Highlands Province, the Offending Vehicle travelling in the direction of Goroka and the Plaintiff’s Vehicle travelling in the opposite direction towards Henganofi.
11.	There were other passengers who were also members of the PNGDF travelling in the Offending Vehicle.
12.	Apart from the Plaintiff’s driver, there were other passengers travelling in the Plaintiff’s Vehicle including Pimi Laki Kera, Jeffery Walapi, Besta Yamala and Cedric Poto.  
13.	Two persons travelling in the Plaintiff’s Vehicle namely, Titus Pena and Pimi Laki Kera died as a result of the accident whilst the other passengers in both vehicles sustained injuries.
14.	The Plaintiff paid compensation for the deaths of the late Titus Pena and Pimi Laki Kera.
15.	The Plaintiff’s Vehicle and the Offending Vehicle were severely damaged and beyond repair as a result of the accident.
16.	The First Defendant was arrested and charged by the Police for Dangerous Driving Causing Death and Dangerous Driving Causing grievous bodily harm under the s.328(2) and (5) of the Criminal Code. 
17.	The First Defendant has absconded and a bench warrant issued for his arrest.

DISPUTED FACT

10.	The main disputed fact is that the First Defendant was acting in the course of his employment and while performing or purporting to perform functions conferred on him by law as a soldier at the time of the accident.

ISSUES
 
11.	The main issues for trial are:

1.	Whether or not the Second Defendant is vicariously liable for the action or omission of the First Defendant?
2.	If the first issue is answered in the affirmative, what are the Plaintiff’s damages?

SUBMISSIONS
Plaintiff

12.	As to who was responsible for the accident, the Plaintiff through his lawyer Mr. Vava submitted that there was overwhelming and uncontradicted evidence brought by the Plaintiff to prove on the balance of probabilities that the First Defendant was at fault and was the one who caused the accident.  Mr. Vava said that eye-witness accounts contained in the affidavits of Cedric Poto, Jeffrey Walapi and Besta Yamala show that the Plaintiff’s Vehicle was in its lane when the Offending Vehicle crossed over into the Plaintiff’s lane and caused the head-on collision.  Mr. Vava also submitted that the eye-witness accounts are supported by the Police Road Accident Report which concluded that the First Defendant was at fault and therefore he was arrested and charged accordingly by the Police for Dangerous Driving Causing Death and Dangerous Driving Causing Grievous Bodily Harm under s.328(2) and (5) of the Criminal Code.

13.	Mr. Vava contended that the Plaintiff has by evidence he has adduced proven on the balance of probabilities that the First Defendant was involved in the accident caused by himself whilst acting in the course of his employment with the Second Defendant and performing or purporting to perform functions conferred on him by law as a soldier at the time of the accident and this is evidenced by the following:

1.	The First Defendant and his fellow officers or personnel from the PNGDF were in their uniforms and armed with weapons.
2.	Paragraph 7 of the Plaintiff’s affidavit sufficiently shows that the First Defendant and his colleagues were on their way to Porgera to conduct security duties in a declared State of Emergency over the Christmas period.
3.	The First Defendant and his colleagues were members of the PNGDF based in Moem Baracks, Wewak so their presence in the Highlands region at the material time with his colleagues from Moem Barracks whilst in full uniform, armed and travelling in a hired vehicle was proof that the First Defendant was on duty travel to attend to emergency security duties in Porgera. 
4.	There was not an iota or shred of evidence to the contrary brought by the Second Defendant to suggest or prove that the First Defendant and his colleagues were on a frolic of their own when the accident occurred.

14.	Mr. Vava argued that in the Plaintiff’s pleadings, he averred that the First Defendant was acting in the course of his duties at the material time so the Second Defendant was put on notice to prove otherwise.   He said it was up to the Second Defendant to adduce credible evidence to rebut the Plaintiff’s evidence that the First Defendant was on duty travel to attend to security duties at Porgera at the material time when the accident occurred.

15.	It was also argued that less weight should be given to the affidavit evidence of Salome Maliaki because firstly, lawyers having carriage of a case cannot give evidence on material aspects of a claim or defence and secondly, her affidavit consisted of her own opinions and assertions and not primary or first-hand evidence.

16.	Mr. Vava also contended that despite the Plaintiff asserting in his amended statement of claim that the First Defendant was heavily intoxicated and under the influence of alcohol at the time of the accident, no evidence was brought either by the Plaintiff or the Second Defendant to prove that the First Defendant was in fact so intoxicated. Therefore, he said the assertion by the Second Defendant in its defence that the Second Defendant was not vicariously liable because the First Defendant was on a frolic of his own as he was intoxicated was not supported by evidence and could not stand.  

17.	Mr. Vava also submitted that even if evidence showed that the First Defendant was intoxicated, this would not necessarily prove that the First Defendant was on a frolic of his own, but would only go to show that the First Defendant was negligent or careless in performing his duties when he decided to take or consume alcohol whilst on duty which may have affected his cognitive ability to a certain degree thereby causing him not to drive carefully. He said it was the act of driving whilst on duty that should be the focal point regarding the issue of vicarious liability of the Second Defendant.

18.	Mr. Vava also argued that to go on a frolic of your own means that the employee must have committed an act that is completely isolated and separated from his or her ordinary course of duties, eg, a policeman committing an act of rape on a woman during the course of a police raid. He said, in the present case, the First Defendant was driving up to Porgera in the ordinary course of his duties or employment with the Second Defendant to perform security duties when the accident occurred and the question of whether or not the First Defendant consumed alcohol or not was immaterial.

Second Defendant

19.	Ms. Maliaki for the Second Defendant in essence argued that the Second Defendant had no liability as the Plaintiff has failed to prove that it was vicariously liable. 

20.	Ms. Maliaki contended that the accident occurred while the First Defendant was inebriated with intoxicating liquor or drug and driving a motor vehicle on a public street so he was not acting in the course of his employment with the Second Defendant, but was on a frolic of his own.  

21.	Ms. Maliaki also submitted that the Plaintiff’s claim for any death or injuries sustained in the accident ought to have been made with the Motor Vehicles Insurance Ltd.  

CONSIDERATION

22.	In civil proceedings, the general rule is that he who asserts must prove it  (Shaw v Commonwealth of Australia [1963] PNGLR 119, Supreme Court Reference No.4 of 1980 [1982] PNGLR 65, Reference by the East Sepik Provincial Executive (2011) SC1154, Galem Falide v Registrar of Titles and The State (2012) N4775, Board of Management, Holy Spirit Primary School v Moses Sariki (2013) N5446) and the standard of proof is on the balance of probabilities. Hence, the burden may shift to the party who asserts and who must then prove it:  JD Heydon, Cross on Evidence, Butterworths, Fifth Edition, 1996, paragraphs 7200-7230.

23.	To succeed in establishing vicarious liability of the Second Defendant in its capacity as employer of the First Defendant, the Plaintiff was required to specifically plead s.1(1) and (4) of the Wrongs (Miscellaneous Provisions) Act and then prove that the incident complained of or tort committed occurred in the course of the First Defendant’s employment and while performing or purporting to perform functions conferred on them by law as a soldier: Pinda v Inguba (2012) SC1181, Nare v The State (2017) SC1584, Kisa v Talok (2017) SC1650, Kamuri v Pomoso (2021) SC2071, Mindili v Kuimo (2021) N9214.  

24.	Has the Plaintiff pleaded and adduced evidence to prove that the incident complained of or the tort committed by the First Defendant occurred in the course of his employment with the Second Defendant and while performing or purporting to perform functions conferred on him by law as a soldier?

25.	The Plaintiff has pleaded in his amended statement of claim that the Second Defendant was vicariously liable for the action or omission of the First Defendant pursuant to s.1 of the Wrongs (Miscellaneous Provisions) Act because the First Defendant was an employee of the Second Respondent and notwithstanding that he was inebriated, he caused the accident in the course of his employment and while performing or purporting to perform functions conferred on him by law as a soldier and he has suffered loss and damage as a consequence.  No issue was taken by the Second Defendant as to the sufficiency or otherwise of the Plaintiff pleading s.1 of the Wrongs (Miscellaneous Provisions) Act generally.   However, the Plaintiff has not pleaded the relevant facts in his amended statement of claim as to what lawful duties the First Defendant was performing or purporting to perform when the accident occurred which he states occurred during the ordinary course of his employment with the Second Defendant. 

26.	As alluded to earlier, in response to the Plaintiff’s amended statement of claim, the Second Defendant in his defence in essence denies that it is vicariously liable for the unlawful conduct of the First Defendant. 

27.	The general rule on pleadings is that pleadings set the foundation for a case and it has two practical consequences:  MVIT v Pupune (1993) PNGLR 370, MVIT v Etape (1995) PNGLR 214, PNGBC v Tole (2002) SC694.  Firstly, no evidence can be adduced of something that has not been pleaded. Secondly, the relief which may be granted to a party must be founded on the pleadings.   

28.	In order to prove his claim against the Second Defendant, the Plaintiff relies on five affidavits; three are from passengers travelling in the Plaintiff’s vehicle; one is from a person who witnessed a compensation payment; and the other is the Plaintiff’s own. 

29.	I am satisfied on the balance of probabilities that the Plaintiff’s evidence points to the accident being caused by the First Defendant.  The police had carried out their own investigation concerning the accident and concluded in their Road Accident Report that the First Defendant negligently drove the vehicle he was driving at “high speed” and caused the accident.  I have already found as an undisputed fact that the First Defendant was arrested and charged by the Police for Dangerous Driving Causing Death and Dangerous Driving Causing grievous bodily harm under the s.328(2) and (5) of the Criminal Code. 

30.	Was the First Defendant inebriated with intoxicating liquor or drug while driving a motor vehicle on a public street? Notwithstanding that the Plaintiff had averred in his amended statement of claim that the First Defendant was heavily intoxicated and under the influence of alcohol at the time of the accident and that the Second Defendant in its defence had averred that it did not condone the First Defendant’s unlawful conduct of driving a motor vehicle on a public street while under the influence of intoxicating liquor or drug and would not be vicariously liable for such unlawful conduct, neither the Plaintiff nor the Second Defendant has brought evidence to substantiate the allegation that the First Defendant was in fact inebriated either with intoxicating liquor or drug. 

31.	In addition, I have given no weight to the affidavit evidence of Ms. Maliaki because I concur with the Plaintiff’s submissions that firstly, lawyers having carriage of a case cannot give evidence on material aspects of a claim or defence and secondly, her affidavit consists of her own opinions and assertions and not primary or first-hand evidence.

32.	The fact that there is no evidence to prove that the First Defendant was inebriated either with intoxicating liquor or drug, in my view, is inconsequential because the burden of proof remains with the Plaintiff to prove on the balance of probabilities that the accident was caused by the First Defendant in the course of his employment and while performing or purporting to perform functions conferred on him by law as a soldier.

33.	In order to discharge his evidential burden, the Plaintiff specifically relies on paragraph 7 of his affidavit and the letters annexed to his affidavit as annexures D2 and D3 and he states that there is sufficient evidence to support his claim.

34.	At paragraph 7 of his affidavit, the Plaintiff deposes that:

 “I was not there at the time of the accident but learnt from the police investigation into the accident that the other vehicle was a Toyota Land Cruiser 10 seater Registration No. HAQ 304 belonging to Niugini Hire Cars was used by members of the PNGDF personnel from Moem Barracks who were on State of Emergency duties during the Christmas period in Porgera and were on their way heading up to Porgera when the accident happened.”

35.	Annexure D2 is a letter from the Investigating Officer, S/C Nick Milibur of the Highway Patrol, Henganofi to the Officer in Charge of Highway Patrol, Goroka dated 9 September 2015 reporting on the progress of the prosecution of the First Defendant in the Goroka (Grade 5) District Court on charges of Dangerous Driving Causing Death and Dangerous Driving Causing Grievous Bodily Harm.  S/C Milibur reported that a warrant of arrest was issued authorising the arrest of the First Defendant for failing to attend the Goroka District Court on several occasions and for him to be brought before Goroka District Court on 30 September 2015 to respond to the charges and to be further dealt with according to law.  A copy of the warrant of arrest is annexed to the Plaintiff’s affidavit as annexure D1.  S/C Nick Milibur also reported that the First Defendant returned to Moem Barracks, Wewak after his involvement in the operations in Porgera ceased. 

36.	Annexure D3 is a letter from Chief Sergeant John Ehava, OIC of the Highway Patrol, Goroka to the Provincial Police Commander, Goroka dated 30 September 2015 reporting that the First Defendant might have returned to Moem Barracks after his involvement in operational duties in Porgera ceased.   He also requested funding to execute the arrest of the First Defendant. 

37.	Subject to certain exceptions, under the general rule, hearsay is not admissible in court, ie, an assertion other than one made by a witness while testifying in the proceedings is inadmissible as evidence of any fact asserted:  R v Sharp [1988] 1 All ER 65 at 68.

38.	As a general proposition, the weight given to evidence is a matter for the trial Judge, including the extent to which the Court may prefer the evidence of one witness to another, and accept or reject evidence:  Kingston v QBE Insurance (PNG) Ltd (2018) SC1698 at [139]. 

39.	I give no weight to the paragraph 7 of the Plaintiff’s affidavit as it is hearsay.

40.	I also give no weight to the evidence contained in annexures D2 (letter from the Investigating Officer, S/C Nick Milibur) and D3 (letter from Chief Sergeant John Ehava) of the Plaintiff’s affidavit where it was suggested that the First Defendant returned to Moem Barracks, Wewak after his involvement in the operations in Porgera ceased as it is hearsay.

41.	The evidence that the accident occurred whilst the First Defendant accompanied by other soldiers in uniform and armed were driving to Porgera for operational duties also has no foundation in the pleadings. 

42.	In addition, the mere fact that the First Defendant and passengers in the Offending Vehicle driven by him were soldiers in the PNGDF in uniform and armed with weapons does not necessarily mean that an inference can be drawn that the accident occurred while they were travelling somewhere in the direction of Goroka in the course of their employment with PNGDF and ultimately with the Second Defendant and while performing or purporting to perform functions conferred on them by law as soldiers.

43.	Proof must be by admissible evidence, which is sufficient, cogent and convincing to meet the threshold civil standard of proof on the balance of probabilities.   In my view, the Plaintiff has failed in that regard.

44.	The Plaintiff has failed to prove his claim that the Second Defendant is vicariously liable for the First Defendant’s action or omission that resulted in the collision between the Plaintiff’s vehicle and the Offending Vehicle driven by the First Defendant along the Okuk Highway somewhere at or near Sokei village, Benabena in the Eastern Highlands Province by admissible evidence, which is sufficient, cogent and convincing.

CONCLUSION

45.	The Plaintiff has failed to establish liability against the Second Defendant so the proceedings against the Second Defendant are dismissed.  Given this, no damages will be awarded. 

COSTS

46.	Costs on a party-party basis is the norm in any court proceedings: Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & Ors (2008) N3340. A departure from the norm requires proper exercise of judicial discretion:  Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & Ors (2008) N3340 

47.	In the present case and in the exercise of the Court’s discretion, costs will follow the event, ie, on a party-party basis.  The Plaintiff shall bear the Second Defendant’s costs of and incidental to the proceedings, which shall be taxed if there is no agreement as to the amount to be paid.

ORDERS

48.	The formal orders of the Court are:

1.	The proceedings taken out by the Plaintiff against the Second Defendant are dismissed.
2.	Costs will follow the event, ie, the Plaintiff shall bear the Second Defendant’s costs of and incidental to the proceedings on a party-party basis, which shall be taxed if there is no agreement as to the amount to be paid.

Judgment and orders accordingly.
____________________________________________________________
Luke Vava Lawyers: Lawyers for the Plaintiff	
Solicitor-General: Lawyers for the Second Defendant