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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 745 OF 2021
BETWEEN:
GIDEON SILIWANA
Plaintiff
AND
TONY HONEY in his capacity as MANAGING DIRECTOR, PNG FOREST PRODUCTS LIMITED
First Defendant
AND
STEVEN PAK, EXECUTIVE MANAGER, HUMAN RESOURCE, PNG FOREST PRODUCTS LIMITED
Second Defendant
AND
PNG FOREST PRODUCTS LIMITED
Third Defendant
AND
CASPER MENING
Fourth defendant
LAE: DOWA J
2 & 15 AUGUST 2023; 5 DECEMBER 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 employer is vicariously liable of employed driver-whether plaintiff is estopped from seeking redress under the principles of insurance subrogation-apportionment of liability between defendants
Held:
Defendants liable- -damages awarded subject to apportionment of liability between the defendants.
Cases cited
Allen Anis v Dobon Taksey (2011) N4468
Daniel Occungar vs. 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
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
Polume v Benny (2008) N3350
Counsel
G. Siliwana, the plaintiff, in person
L. Wangi, for the first, second & third defendants
C Mening the fourth defendant, in person
JUDGMENT
1. DOWA J: This is a decision on both issues of liability and damages.
Facts
2. The Plaintiff instituted proceedings seeking damages for damage done to his PMV Truck, Isuzu NPR Truck, Reg. No P9127K in a motor vehicle accident involving the Third Defendant’s motor vehicle. The Plaintiff’s truck collided with the Third Defendant’s motor vehicle, a Toyota Land Cruiser Reg. No CAV 759, driven by Casper Mening, the fourth Defendant. The accident took place at a section of road between Bulolo and Pine Top bridge along the Bulolo/Wau highway, Morobe Province. It is alleged that the accident was caused by the negligent driving of the fourth Defendant to which the Third Defendant is vicariously liable as employer.
3. It was assessed that the Plaintiff’s truck was extensively damaged beyond economic repairs. The Plaintiff instituted these proceedings to recover damages for loss of vehicle, economic loss, and special damages.
4. On or about 23rd August 2021 the Plaintiffs insurer, Capital General Insurance Company Limited, paid K76,000.00 to the Plaintiff under a motor vehicle comprehensive insurance policy he had with the insurance company. On receiving settlement, the Plaintiff released the Insurer from all liability for the loss of the truck arising out of this accident. The Plaintiff now seeks balance of the loss of vehicle as well as economic loss.
Defence
5. The Defendants deny the claim pleading in their defence that; 1) any loss suffered by the Plaintiff arising out of the said accident was settled by the Plaintiff’s Insurer in full and the Plaintiff is therefore estopped from making a separate claim against the Defendants for the same accident; and 2) the third Defendant is not vicariously liable for the actions of the fourth Defendant as the fourth Defendant was on a frolic of his own and not in the course of the employer’s duties.
Evidence-Plaintiff
6. The Plaintiff relies on the following affidavits:
a. Additional Affidavit of Gideon Siliwana filed 23rd May 2023-Exhibit P1
b. Affidavit in Support of Gideon Siliwana filed 28th July 2022-Ehibit P2
7. This is the summary of the Plaintiff’s evidence. The Plaintiff hails from Bulolo, Morobe Province. He is the registered owner of motor vehicle; Isuzu Truck registered No P9127K. On the afternoon of 17th April 2021, the Plaintiff’s Isuzu Truck collided with the third Defendant’s motor vehicle, Toyota Land Cruiser, Registration No. CAV 759 at a section of road between Pine Top Bridge and Bulolo along the Bulolo/Lae highway. The Plaintiff was driving his truck whilst the third Defendant’s motor vehicle was driven by Casper Mening, the fourth Defendant. The Plaintiff was travelling from Lae to Bulolo while the fourth Defendant was returning from Bulolo to Lae.
8. The Plaintiff deposed that the accident took place when the fourth Defendant left his lane on high speed, occupied his lane and collided with his truck on his lane. The Plaintiff’s PMV Truck was extensively damaged beyond economic repairs.
9. As a result of the accident, the Plaintiff suffered loss of the vehicle, loss of income and loan arrears with Credit Corporation Limited.
Evidence of 1st, 2nd and 3rd Defendants
10. The first, second and third Defendants rely on the following affidavits:
11, This is the summary of the evidence presented by Stephen Paák and Tom Bob. The fourth Defendant, Casper Mening, is a welder employed by the third defendant at the material time. He was sent to Wau to evaluate a welding job to be done to a Komatshu dozer and report back to his supervisor. He was accompanied by Tom Bob. After the inspection the pair drove back to Lae. While on their way, the fourth Defendant bought a bottle of Wisky known as Captain Moresby and started drinking along the way. Fourth Defendant shared the alcohol with Tom Bob who discarded same. After some time, the fourth Defendant increased speed and drove to the wrong lane and collided with the Plaintiff’s PMV Truck at a curve near Pine Top bridge.
12. The accident was investigated by police traffic officer Senior Constable Chris Normi and charged the fourth Defendant for negligent driving under section 40 of the Motor Traffic Act.
13. The first defendant deposed that the fourth defendant breached the third Defendant’s company policy by drinking while on duty and was consequently dismissed. The third defendant is therefore not responsible for the actions of the fourth Defendant who was on a frolic and detour from his course of employment.
Evidence of fourth Defendant.
14. The fourth Defendant gave oral evidence. He was employed by the third Defendant as Welder. On the day of accident, he was instructed to travel to Bulolo to inspect a Dozer which needed repairs. After inspection he drove back to Lae in the afternoon. On his way he bought a bottle of Captain Moresby which he shared with his crew, Tom Bob. When he approached the site of accident near Pine Top bridge, it was raining heavily. He was behind another vehicle which was travelling a head. As he was coming fast, he decided to overtake. At that time, the vipers were not functioning and so he could not see clearly the road ahead. As he turned to the right of the lane, he suddenly noticed the Plaintiff’s truck coming in the opposite direction. He couldn’t do anything to avoid as it was to close, resulting in the collision. He said the accident happened during the course of his employment, and he was dismissed for breaching the third Defendant’s employment policy. He said he was charged by the traffic officers for negligent driving, but no verdict has been reached as it was still pending at the time of trial.
Issues
15. The issues for consideration based on pleadings, evidence and submissions of the parties are:
a. Whether the fourth Defendant is negligent in causing the accident.
b. Whether the third Defendant is vicariously liable
c. How much is the Plaintiff entitled to in terms of damages
16. 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
17. 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.
18. The elements of the tort of negligence particularly set out in the case Anis v Taksey (Supra) are:
(1) Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.
(2) The tortfeasor breached that duty, i.e. by act or omission, the tortfeasor's conduct was negligent.
(3) Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim.
(4) Plaintiff and/or victim’s injuries were not too remotely connected to the tortfeasor's conduct; and
(5) Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.
19 The proceedings concern the collision of two motor vehicles in the middle of the Bulolo/Wau Highway on the afternoon 17th April 2021. Who is mainly responsible for the accident. Both drivers have a duty of care towards each other and other users of the public road. Plaintiff blamed the third defendant’s driver for suddenly crossing over to his lane causing the accident.
20 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 relevant, not only relevant but are significant and add probative value to the primary evidence.
21. In the present case, the Plaintiff’s driver deposed he was driving on his left lane while the fourth Defendant suddenly cut across from the left lane onto the right occupying his space. The fourth Defendant admitted he came down fast and in trying to overtake a vehicle in front of him he drove over to the right lane occupying the Plaintiff’s lane and caused the accident. The fourth Defendant explained he could not see the road clearly because the wiper was not working. Tom Bob, who accompanied the fourth Defendant, testified that prior to the accident the fourth Defendant was consuming alcohol and was driving carelessly.
22. On impact, bystanders and passengers on the Plaintiff’s truck attacked the fourth Defendant 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.
23. The traffic officer who investigated the accident reported that the fourth Defendant 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.
24. The evidence of the fourth Defendant 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.
25. 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).”
26. The fourth Defendant was charged with negligent driving under Section 40 (1) of the Road Traffic Act 2014. The charge was pending hearing at the time of trial. While a verdict of the Court would have a probative value, the fact that the fourth Defendant being charged is relevant in determining whether he is negligent.
27. In the end it is clear to me that the fourth Defendant was driving on high speed. He carelessly left his lane cruising onto the Plaintiff’s lane without satisfying himself that the road was clear especially where the vipers of his vehicle were not functioning. He was also careless when he consumed alcohol placing himself under possible influence of liquor.
28. For the reasons given above, I conclude that the fourth Defendant was negligent in his driving causing the accident. I find the fourth Defendant liable.
29. The Plaintiff pleaded that the third defendant is vicariously liable for the negligent driving of its employed driver, Casper Mening, the fourth Defendant. 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.
30. In the present case, counsel for the third Defendant submitted that the third Defendant is not vicariously liable for the negligence of the fourth Defendant who was on a frolic of his own and detour from his course of employment by consuming alcohol while on duty which resulted in his dismissal.
Consideration
31. I have carefully considered the evidence and reject the third Defendant’s contention. Although the fourth Defendant consumed alcohol and may have affected his driving, there is no expert or conclusive evidence that consumption of alcohol was the main cause. Accidents happen by negligent driving without being influenced by liquor. There was rain and the vipers were not functioning. For the consumption of liquor, he was disciplined by dismissal by the third Defendant for breach of company policy.
32. It is not disputed that the fourth Defendant was on official duty as employee of the third Defendant. He was driving the third Defendant’s motor vehicle. Except for the consumption of liquor which amounted to breach of employment policy, the fourth Defendant was not on a frolic of his own. He was driving back from his official duty. The vehicle’s vipers were not functioning which may have contributed to the misjudgement. Keeping the vehicle in a roadworthy condition is the responsibility of the third Defendant as owner.
33. The evidence is clear; the fourth Defendant was on duty on the day of accident. The third Defendant, as employer, is therefore vicariously liable for the negligence of its employed driver, the fourth Defendant.
c. How much is the Plaintiff entitled to in terms of damages
34. Whilst the issue of liability is settled in the Plaintiff’s favour, 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 (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State – N147; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.
35. 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:
36. How much in terms of damages is the Plaintiff entitled to? The Plaintiff claims the following heads of damages:
b) K 76, 800.00 for loss of income
c) K 4,500.00 for special damages
d) General Damages
e) Interest at 8%
Loss of the Motor vehicle
38. The Plaintiff submits his vehicle was extensively damaged and is a write off. He claims K 147,000.00 being the value of the truck. It is not easy to place a value on the truck 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.” In the present case, there is evidence from PNG Motors, Boroko Motors and 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 110,000.00 while Boroko Motors assessed the pre accident value at K 116,000. The truck is a 2020 Model and was ten (10) months old at the time of accident. The Plaintiff’s insurer assessed and accepted K 113, 000.00 as the base value for settlement of the Plaintiff’s the claim under a motor vehicle comprehensive insurance policy. Based on the two pre accident values from the motor dealers and the insurance settlement value I accept K 113,000.00 as reasonable value for the truck at the time of accident.
40. The third Defendant contends that the Plaintiff is not entitled to the claim for loss of vehicle for the following reasons:
a. The loss suffered by the Plaintiff arising out of the said accident was settled in full by the Plaintiff’s Insurer, Capital General Insurance Company Limited. The Plaintiff has signed a Discharge and released the Insurer and transferred its rights to make a claim against the Third Defendant to the Insurer. The Insurer has now given notice of claim against the third Defendant seeking reimbursement under the principles of subrogation. The Plaintiff is therefore estopped from making a separate claim against the third Defendants for the same accident.
b. Plaintiff failed to disclose in his pleading that he and his finance company, Credit Corporation Finance Limited received K 76,410.00 from its insurer, Capital General Insurance Company Limited for the loss arising out of t he accident.
Consideration
41. I have considered the submissions of counsel for the third Defendant and find that the Plaintiff has sufficiently pleaded in his Reply that he has received K 76,410.00 from his insurer, Capital General Insurance Company Limited which were then paid to Credit Corporation in settlement of his outstanding loan.
42. I note the Plaintiff’s claim is for the difference between what was paid by the Insurer and the value of the truck. The question I ask is whether the Plaintiff entitled to claim the difference. In my view the Plaintiff is entitled to claim the difference or policy excess of K 36,590.00. I note that the Plaintiff signed a Deed of Release when accepting K 76,410.00. That release was made in favour of his Insurer, Capital General Insurance Company Limited. Capital General Insurance Company Limited is not the third Defendant’s Insurer. The payment by Capital General Insurance Company Limited was not paid on behalf of the third Defendant. The Deed of Release is not binding on the Plaintiff insofar as he seeks recovery against the third and fourth Defendants for the policy excess. The Plaintiff is at liberty to seek redress. The facts of this case are distinguishable from the case, Polume v Benny (2008) N3350, relied on by counsel for the third Defendant, where the Plaintiff in that case signed a Deed of Release discharging the defendant and its insurer.
43. I note the third Defendant’s contention of a pending claim by the Plaintiff’s insurer, Capital General Insurance Company Limited, under the principles of insurance subrogation. Subrogation is defined as a legal doctrine in which one person takes away the rights of a creditor against his or her debtor. Did the insurance company, Capital General Insurance take away the Plaintiff’s right of action against the third defendant such that he is now left without any cause of action. The Plaintiff’s Insurer, Capital General Insurance’s claim against the third Defendant has not materialised in any settlement or proceeding. Capital General Insurance has not instituted any proceedings of its own. Besides, it does not affect the Plaintiff’s right to make a claim for the policy excess of K36,590.00, loss of income and special damages.
44. While the Plaintiff did not plead for a specific sum for the insurance excess, there is general pleading for K 147,000.00 less K 76,410.00 settled under the policy.
45. Following the analysis and findings of facts above, I am inclined to assess and allow the loss at K 36,590.00 less K 10,000.00 for contingencies leaving a balance of K 29,590.00 and an award shall be made for that sum.
Special Damages
46. The Plaintiff makes a claim for special damages of K 4,500.00. This claim relates to expenses expended by the Plaintiff in transporting injured passengers back to Lae for hospitalization and treatment and related expenses. However, he did not plead particulars of the expenses. He provided no evidence in the form of receipts. Nevertheless, I accept that he did spend money on transporting and meeting hospital fees. I will allow a nominal sum of K1,500.00 for special damages and award same.
General Damages
Loss of Income
Total Award
Interest
52. 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, (26/10/2021) to date of judgment (05/12/ 2025) for a period of 1,500 days. Interest is calculated as follows:
K 47,290 x 8/100 = K 3,783.20 per annum
K 3,783.20 /365 days = K 10.36 per day
K 10.36 x 1,500 days K 15,540.00
53. The total award inclusive of interest is K 62,830.00
Costs
54. 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.
Who shall pay the judgment debt
55. Counsel for the third Defendant submitted that the judgment debt be equally apportioned between the third and the fourth Defendants. Generally, all defendants would be jointly and severally liable to pay the judgment debt. However, in this case, the fourth Defendant breached the terms of his contract of employment by drinking alcohol while on duty. This resulted in his termination of employment. In the circumstances, I will order the fourth Defendant to pay a portion of the judgment debt personally. In my view the fourth Defendant shall be responsible for 40 % of the judgment debt while the third Defendant shall pay the balance of 60%.
Orders
56. The Court orders that:
Lawyers for first, second and third defendants: Leahy Lewin Lowing Sullivan Lawyers
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