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Yei v IPI Transport Ltd [2025] PGNC 451; N11596 (19 November 2025)

N11596


PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


WS NO. 439 OF 2024


BETWEEN
NONDUPA YEI
Plaintiff


AND
IPI TRANSPORT LIMITED
First Defendant


AND
NIGINTS PRAH
Second Defendant


LAE: DOWA J
15 OCTOBER, 17, 19 NOVEMBER 2025


CIVIL ACTION-NEGLIGENCE – tort of negligence-motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent -Whether evidence of charge of traffic offence is sufficient to establish negligence. The necessity of calling primary evidence to prove negligence-whether Plaintiff contributed to the accident-Held Defendant’s principally liable- -damages awarded subject to deductions for contributory negligence.


Cases cited
Allen Anis v Dobon Taksey (2011) N4468
Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
Eton Pakui v The State (2006) N2977
Titus Banga v Madang Port Services Ltd (2011) N4302
Yooken Paklin v The State (2001) N2212
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
Kay Pure v Tonnesi Ewebi (2021) N9013
Mapu v Mainland Holdings Limited (2025) N11572
Michael Kulame v Ombo Sinibo & Other (2025) N11586
Tirima v Angau Memorial Hospital Board (2005) N2779
Kuima Security Services Ltd v Philip (2024) N11048
Waranaka v Dusava (2009) SC940
Russel Mel Wassey v Jack Avir (2025) N11376
Peter Wanis v The State (1995) N1250
Graham Mappa v PNG Electricity Commission [1995] PNGLR 170
Kekeral Farming v Queensland Insurance [1995] PNGLR 405
Marshall Kennedy v Coca Cola Amatil (2011) N4946


Counsel
M Karu, for the plaintiff
S Kesno, for the defendants


JUDGMENT


1. DOWA J: This is a decision on liability and damages arising out of a road accident.


  1. The Plaintiff claims damages against the Defendants for damage done to his motor vehicle caused by negligent driving of the second Defendant, employed driver of the first Defendant along the Okuk Highway in the Morobe Province

Facts


  1. The proceedings arise out of a road accident involving a collision of two vehicles owned by the parties to the proceedings. The Plaintiff is the owner of motor vehicle, Toyota Coaster Bus, Reg. No. P-01861 while the Defendant’s vehicle was a Hino Semi-Trailer, Regi. No. ABR 346. The accident took place on 21st March 2023 at 9 Mile, along the Highlands Highway, Morobe Province.
  2. The Plaintiff filed a Writ of Summons on 22nd October 2024 claiming damages against the Defendants for negligent driving of the second Defendant.
  3. The Defendants denied liability pleading that the said accident was caused by the negligent driving of the Plaintiff’s driver. The Defendants pleaded further that the second Defendant is not the owner of the Hino truck and thus not liable.

Trial


  1. The trial was conducted by tender of respective affidavits and oral examination of witnesses.

Plaintiff’s Evidence


  1. Apart from oral evidence, the Plaintiff relies on the following Affidavits:
    1. Affidavit of Constable Bill Belatso filed 30th May 2025-Exhibit P1.
    2. Affidavit of David Fale filed 28th May 2025-Exhibit P2
    1. Affidavit of Christina Noah filed 28th May 2025-Exhibit P3
    1. Affidavit of Michael Onga filed 28th May 2025-Exhibit P4
    2. Affidavit of Nondopa Yei filed 30th May 2025-Exhibit P5
    3. Affidavit of Philip Isaac filed 28th May 2025-Exhibit P6
    4. Affidavit of Abraham Wama filed 28th May 2025 -Exhibit P7
  2. This is the summary of the Plaintiff’s evidence. The Plaintiff is self-employed, and a PMV operator in the city of Lae. He is the registered owner of the Toyota Coaster Bus, Registration No. P01861. On the morning of 21st March 2023, the Plaintiff’s Bus driven by Abraham Wama was travelling from the direction of Nadzab along the Okuk Highway towards Lae City. Just before reaching 9 Mile Market, the Plaintiff’s bus collided with the second Defendant’s Hino Truck, Registration No. LBR 346. The Plaintiff’s evidence from his witnesses is that the Plaintiff’s driver was cruising along the main road right behind the Defendant’s Truck. The bus was on the inner lane parallel to the Hino Truck which was proceeding on the outer lane. Then suddenly the second Defendant’s truck turned to the right from the outer lane attempting to make “U” turn towards Nadzab/Bulolo and caused the accident. The Plaintiff’s witnesses said the second Defendant failed to give way to the Plaintiff’s driver who had the right of way. The second Defendant failed to ensure the road was clear before making the “U” turn. Further, this section of road does not provide for big trucks to make “U” turns. The Plaintiff’s driver was taken by surprise. On noticing the immediate danger, the bus driver applied his brakes, but it was far too close, and he tried to avoid by driving onto the island, but it was too late as the Truck’s nose has already reached the other side resulting in the collision. The Plaintiff’s bus collided with the second Defendant’s Truck on its right end front, the driver’s side.
  3. Police arrived at the scene of the accident. Constable Gill Belatso, a senior traffic officer based at the Lae Central Police Station investigated the accident. After interviewing the two drivers and other witnesses, Police charged the second Defendant with negligent driving under Section 40 (1) of the Road Traffic Act. The Traffic Officer reasoned that the Defendant driver failed to have regard for the Plaintiff bus who had the right of way. This was not the right place for the Defendant’s lengthy 40ft truck to make a “U” turn. The traffic charge was however struck out due to the second Defendant’s failure to turn up in Court.
  4. As a result of the accident and negligence of the second Defendant, the Plaintiff’s bus was extensively damaged beyond economic repairs. The Plaintiff seeks damages for loss of the bus and for economic loss as a PMV operator.

Defendant’s evidence


  1. The Defendants rely on the following affidavit evidence:
    1. Affidavit of Nigints Prah filed 31st July 2025-Exhibit D1
    2. Affidavit of Nigints Prah filed 25th August 2025-Exhibit D2
    1. Affidavit of Moris Lipo filed 31st July 2025-Exhibit D3
    1. Affidavit of Otto Kiapranis filed 31st July 2025-Exhibit D4
    2. Affidavit of Otto Kiapranis filed 8th August 2025-Exhibit D5.
  2. This is the summary of the Defendants’ evidence. On the day of accident, the second Defendant, driver of the IPI Truck, was travelling down the Okuk Highway. Just before reaching 9 Mile Market, he made a “U’ intending to travel to Bulolo Highway. Before the accident the defendant driver was on the outer left lane towards the Lae direction. He slowed down and after allowing for sufficient space and giving right turn signal, and noticing the road was clear, cut across the semi roundabout to the lane facing Nadzab/Bulolo. As he turned, he noticed the Plaintiff’s PMV bus was about 100 meters coming at high speed. He continued crossing, expecting the bus to slow down. Instead of slowing down or stopping, the bus continued at speed and proceeded to the roundabout traffic island cement to make a shortcut onto the opposite lane resulting in the collision. Due to the high speed, both vehicles sustained extensive damage. Although the second defendant was charged, the charge was struck out. The Defendants attribute the collision due to the high speed and negligent driving of the bus driver.

Issues


  1. The issues for consideration are:
    1. Whether the second Defendant is negligent causing the accident.
    2. Whether the first Defendant is vicariously liable.
    1. Whether the Plaintiff’s driver contributed to the accident.
    1. What damages, if any, is the Plaintiff entitled to.

Burden of Proof


  1. The burden of proving the claim rests on the Plaintiff and he must discharge the burden on the balance of probabilities. Refer: Yooken Paklin v The State (2001) N2212, Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

Law on negligence


  1. The Plaintiff’s claim is based on the tort of negligence. The burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it. Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468 and Kay Pure v Tonnesi Ewebi (2021) N9013.
  2. The elements of the tort of negligence particularly set out in the case Anis v Taksey (Supra) are:

Consideration of the Issues


  1. The proceedings concern the collision of two motor vehicles in the middle of the Okuk Highway on the morning of 21st March 2023. Who is mainly responsible for the accident where the drivers are blaming each other. There are two competing versions of the facts. The Supreme Court in Waranaka v Dusava (2009) SC940 held that where there are two versions in evidence, it is important to assess and analyse the credibility of the witnesses and their evidence and point out any aspect of the performance of each witness before accepting the evidence based applying common sense and logic based on proven facts.
  2. Both drivers have a duty of care towards each other and other users of the public road. The drivers have both denied liability. Plaintiff blamed the defendant’s driver for suddenly crossing over to his lane causing the accident, while defendant’s driver blamed the Plaintiff’s driver for speeding and failing to slow down and take evasive steps to avoid the accident.
  3. As I stated in the case Pure v Ewebi (2021) N9013 and Mapu v Mainland Holdings Limited (2025) N11572 and Michael Kulame v Ombo Sinibo & Other (2025) N11586,   to establish negligence of a driver in a motor traffic accident, the primary evidence should come from witnesses like drivers, crews, passengers and bystanders in proximity. The primary evidence is then supported by the next relevant evidence from traffic police investigators who may produce copies of Road Accident Reports. Moreover, the evidence of a motor traffic charge and certificates of conviction are not only relevant but are significant and add probative value to the primary evidence.
  4. In the present case, the Plaintiff’s driver deposed he was driving slowly at 50-60 km/hour while the Defendant’s suddenly cut across from the left lane onto the right occupying his space. On the other hand, the Defendant driver deposed he cut across when the road was clear and when he was about to reach the other side, he noticed the Plaintiff bus about 100 meters away coming on highspeed collided into him. I have carefully read the affidavits and studied the demeanour of the witnesses during cross examination and have formed the view that both drivers contributed to the accident, although at different levels of culpabilities. In my view, the second Defendant, Nigints Prah, is the principal offender for reasons set forth in the judgment.
  5. Nigints deposed in paragraph 9 of his affidavit, that he saw the Plaintiff’s bus coming down on high speed about 100 meters away as he was turning right. Despite being aware of the approaching bus, the defendant driver proceeded to cut across making the “U” turn without regard for the oncoming bus. This was not a roundabout. There was no sign that vehicles can make a “U” turn. This is especially important considering the 40ft Truck he was endeavouring to manoeuvre. The truck occupied the entire road. He should have waited until the road was completely clear before cutting into the opposite lane. He overestimated the distance of the oncoming bus and his ability to steer away in time to avoid contact, especially with the type of vehicle he was driving. He knew or could tell the bus was coming fast down the inner lane, yet he underestimated the speed and miscalculated the time and distance it would take before coming into contact. As he deposed, he was hoping for the bus driver to slow down which did not happen. The bus driver was cruising down on his inner lane. The defendant driver failed to wait, give way before he crossed the road. The defendant driver took a risk which risk materialised resulting in the accident. I am not impressed with the demeanour of the second defendant and find his evidence lacking credibility. Also, I am not impressed with the Defendant witness, Morris Lipo. Lipo said he witnessed the accident while chewing betel nut at 9 Mile Market from 100 to 200 meters. He blamed the Plaintiff’s driver saying the bus came on high speed and collided with the Truck. In his affidavit he deposed he was standing 200 meters when he first saw the bus speeding down while the defendant truck was positioned to cross the lane. During cross-examination he changed the distance from 200 meters to 100 meters. Even then, judging from the location he was standing, he could not have a proper view of the bus because the body of the Truck occupied the entire double lane obscuring him from seeing anything beyond the Truck. That is, he could not see the bus coming down the highway as the truck was in the way. In my view he is unreliable and I reject his evidence.
  6. Next matter to note. On impact, bystanders and passengers on the Plaintiff’s bus attacked the Defendant’s driver blaming him for causing the accident. Although it is not proof of negligence, the spontaneous reaction of the bystanders is relevant indicator of who may have been at fault.
  7. The traffic officer who investigated the accident deposed that it was the Defendant’s driver who was at fault, leaving his lane, cruising over to the Plaintiff’s lane and caused the accident. He drew a sketch indicating the point of impact in the Road Accident Report, which report was tendered into evidence. While the description of the accident and proposed action recorded in the Road Accident Report contains hearsay material, it is an official/administrative document/record, and its contents are relevant to corroborate the primary evidence. I will give due weight to its contents as having corroborative value.
  8. The evidence of the Defendant’s driver being charged with the traffic offence is relevant to the question of whether he is negligent although it is not proof of negligence per se. This is discussed in the cases Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468.
  9. In Allen Anis v Dobon Taksey, Cannings J said this at paragraph 9 of his judgment:

“9. Even evidence that the driver of a vehicle has been charged with a traffic offence in connection with a collision, without proof of conviction, may be admissible and relevant to the question of whether that driver was negligent (Titus Banga v Madang Port Services Ltd (2011) N4302). Here there is evidence, not only that the first defendant was charged with traffic offences, but that he was convicted. The fact that he was convicted of driving without due care and attention is of special significance. It shows that a court of law, exercising the judicial power of the People, has been satisfied beyond reasonable doubt that the first defendant drove the Hyundai without due care and attention. That decision has not been overturned on appeal. Evidence of the convictions is therefore relevant to the question of whether the first defendant was negligent and it is of high probative value, in that it supports the proposition being advanced by the plaintiff, that the first defendant was negligent (Mathew John Westcott v MVIL (2008) N3565). When that evidence is combined with the evidence of the plaintiff's son and the passengers on the Dyna, and taking into account that the defendants adduced no evidence to rebut the ordinary and natural inference arising from the evidence adduced by the plaintiff, it is an easy task for the court to be satisfied that the first defendant was indeed negligent. He caused the collision. He was in the wrong. He negligently performed a U-turn. He failed to keep a proper lookout. He failed to meet the standards of a reasonable driver (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779, Litina Okevi v PNG Electricity Commission (2006) N3074).”


  1. The second Defendant was charged with negligent driving under Section 40 (1) of the Road Traffic Act 2014. The charge was struck out after a year due to continuous nonappearance by the second Defendant. The second Defendant testified that he was in Court when the case was dismissed but he did not produce a certificate of dismissal. In my view, the second Defendant was not telling the truth. He had the opportunity to defend the charge but consciously chose not to appear. While a verdict of the Court would have a probative value, the discharge occasioned by nonappearance does not aid the second Defendant’s claim of innocence. On the other hand, it is open to suggestion that he was avoiding consequences of a possible conviction.
  2. For the reasons given above, I conclude that the Defendant’s driver was negligent in his driving causing the accident. I find the second Defendant liable.

Vicarious liability


  1. The Plaintiff pleaded that the first defendant is vicariously liable for the negligent driving of its employed driver, Nigints Prah. 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 people over whom the first person has control or responsibility. Refer Tirima v Angau Memorial Hospital Board (2005) N2779 and Kuima Security Services Ltd v Philip (2024) N11048.
  2. In the present case, counsel for the Defendants submitted that contrary to the pleadings, the first Defendant is not the owner of the motor vehicle, LBR 346, and thus cannot be vicariously liable.
  3. I have carefully considered the evidence and reject the first Defendant’s contention. Although the subject Hino Truck is owned by Ari Investment Ltd, the truck was engaged fully in the first Defendant’s haulage business. It was painted in IPI colors. It was driven by the first Defendant’s employed driver and ferrying cargo for the first Defendant. According to the evidence of the Defendants’ witness, Otto Kiapranis, all vehicles used by the first Defendant in its trucking and haulage business are either owned or contracted from others. If the subject Hino Truck is not owned, then it was leased from others and was in lawful custody and possession of the Defendants. Kiapranis, during cross examination conceded that even Ari Investment Limited is either owned or part of the IPI Group of companies. The extract from IPA attached to the Kiaprianis’ Affidavit shows Ari Investment Limited is owned by Ipili Porgera Investment Limited, the parent company of the first Defendant. There is no dispute that the second Defendant is and has been an employee of the first Defendant for many years.
  4. The evidence is clear; the second Defendant was on duty on the day of accident. The first Defendant, as employer, is therefore vicariously liable for the negligence of its employed driver, the second Defendant.

Contributory Negligence


  1. Does this totally relieve the Plaintiff from contributory negligence. In my view, the Plaintiff’s driver must take some responsibility too. The accident took place in the middle of the road although on the Plaintiff’s lane. All drivers have a duty of care. The Bus driver gave evidence that he was driving at the rate of 50-60 km/hour. Two to three of the Plaintiff’s witnesses supported the bus driver on the rate of speed. During cross examination, the witnesses David Fale, Constable Bill Belatso and Philip Issac said the bus driver was speeding although no actual speed rates were stated. Given the impact where one of the passengers being thrown out of the bus, and the extensive damage sustained and the difficulties the bus driver encountered in controlling the bus clearly indicate that the bus was speeding. I do not accept that it was cruising along at the rate of 50 to 60 km/hour. If he was travelling at that rate, then he would have easily controlled the bus. The evidence on the other hand show he failed to slow down and stop or steer away to avoid the accident. While I accept and have found, it was the second Defendant who was mainly at fault, the bus driver contributed to the accident for he also has a duty of care, and he failed to mitigate the loss. I therefore find the Plaintiff’s driver contributed to the accident. I would apportion liability for contributory negligence at 70/30 in favour of the Plaintiff.

Damages


33. Whilst the issue of liability is settled in the Plaintiff’s favor, the Plaintiff is still required to prove damages with credible evidence. Ref: Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (1995) N1350, Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State (1996) N1457; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.


34. In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:

“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:

35. How much in terms of damages is the Plaintiff entitled to? The Plaintiff claims the following heads of damages:


  1. K 70,000.00 for pre accident value of the bus.
  2. General damages
  1. K6,680.00-Special damages
  1. Loss of income
  2. Interest at 8%
  3. Costs

Loss of the Motor vehicle.


  1. The Plaintiff submits his vehicle was extensively damaged and is a write off. He claims K 70,000.00 being pre accident value of the vehicle. It is not easy to place a value on the bus at the time of the accident. However, as held in Jonathan Paraia v The State (supra) and applied in Samot v Yame (supra), “The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can.”

37. In the present case, there is evidence from Ela Motors that the vehicle was damaged beyond economic repairs. Ela Motors have also assessed and fixed the pre accident value of the vehicle at K 70,000.00. The bus is a 2016 Model and was seven years old at the time of accident. The Plaintiff provided no evidence on the purchase price to allow for depreciation. The Plaintiff did not provide any evidence of the post-accident value and the wreck value of the bus for appropriate allowances. No evidence was presented of the mileage and the condition of the bus at the time of the accident. Although the pre accident value was presented by a Toyota dealer and is credible, the Court is not bound to accept the value presented on face value. It shall nevertheless become the reference point for the assessment. Thus, based on the pre accident value and allowing for natural wear and tear, depreciation over the years and for the undisclosed wreck value, I assess and fix K 50,000.00 to be a reasonable amount of compensation. I shall award K 50,000.00 for the loss of the bus.


Special Damages


38. The Plaintiff pleaded a claim for K 6,680.00 for special damages. However, he did not offer any evidence. There shall be no award.


General Damages


39. The Plaintiff pleaded a claim for pain and suffering. However, the Plaintiff did not provide any evidence. No award shall be made for general damages.


Loss of Income


  1. The Plaintiff pleads economic loss. The law on economic loss is settled in this jurisdiction. A claim for loss of income must be supported by proper documentation, including tax and accounting details, and bank statements. Refer: Peter Wanis v The State (1995) N1250, Graham Mappa v PNG Electricity Commission (1995) PNGLR170, Kekeral Farming v Queensland Insurance (1995) PNGLR 405, and Marshall Kennedy v Coca Cola Amatil (2011) N4946.
  2. The Plaintiff pleaded that the vehicle was used for his PMV business. He claims K 500.00 per day for the last 451 days. However, he did not produce any records of income. He did not produce any bank statements to confirm any deposits of the daily takings. He did not produce any tax returns. To his credit the Plaintiff produced a PMV License confirming that the bus was used for ferrying passengers for fares. In the circumstances, I will assess and allow a nominal sum for a reasonable repairs period of three months. Plaintiff pleads he makes K 500.00 per day. Allowing fuel, wages and contingencies, I will allow a net sum of K 200.00 per day for a six-day week. In my view a reasonable repairs period will be three (3) months or twelve weeks. The Plaintiff, earning an average net income of K 4,800.00 per month for a period of three months, amounts to K 14,400.00. I will make award of K 14,400.00 for economic loss.

Total Award


  1. The total award shall be K 64,400.00.

Interest


  1. The Plaintiff is claiming interest. I will allow interest at the rate of 8% on the amount assessed. Interest is to commence from date of writ of summons, (22/10/2024) to date of judgment (19/11/ 2025) for a period of 390 days. Interest is calculated as follows:

K 64,400.00 x 8/100 = K 5,152.00per annum

K 5,152.00 /365 days = K 14.12 per day

K 14.12 x 390 days K 5,506.80


44. The total award inclusive of interest is K 69,906.80. This amount shall be deducted to allow for contributory negligence at 30 %. After allowing for deduction, the Plaintiff is entitled to judgement of K 48,934.76.


Costs


45. The Plaintiff is claiming cost. The Court has a discretion to award costs by virtue of its ancillary powers under Order 12 Rule 1 of the National Court Rules. I will allow costs in favour of the Plaintiff subject to 30% deduction after taxation.


Orders


46. The Court orders that:


  1. Judgment is entered for the Plaintiff in the sum of K48,934.76 inclusive of interest.
  2. Post Judgment interest shall accrue at the rate of 8% until settlement.
  3. The first and second Defendants are jointly and severally liable to settle the judgment debt.
  4. The Defendants shall pay 70% of Plaintiff’s costs after taxation.
  5. Time is abridged.

_____________________________________________________________
Lawyers for the plaintiff: Daniels & Associates Lawyers
Lawyers for the defendants: Kesno Lawyers

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