Papua New Guinea Law Reports

In the Coue Court of Appeal in Twine v. Bean’s Express[dlvi]14 Lord Greene MR. upheld the judgment of Uthwatt J on two grounds, firstly that the plaintiff’s husband in that case was found to be a trespasser and, secondly, that, in giving a lift to the deceased man, the driver was not acting in the scope of his employment. Lord Greene pointed out that it was clear that the driver was acting as the driver of the van in the course of his employment but that did not mean as counsel for the appellant in that case suggested, “that because the deceased man was in the van it was within the scope of the driver’s employment to be driving the deceased man. He was in fact doing two things at once. He was driving his van from one place to another by a route which he was properly taking when he ran into the omnibus, and in driving the van he was acting within the scope of his employment. The other thing which he was doing simultaneously was something totally outside the scope of his employment—namely, giving a lift to a person who had no right whatsoever to be there” (at p. 459).

The only facts bearing on this issue are that the vehicle was admitted to belong to the appellant, Tomonoi was a coffee buyer, he had been seen driving the vehicle on other occasions, he was driving to the Roka Coffee Estate where he lived and, although it seems quite equivocal, a bag of coffee was found in the vehicle. There is authority that the ownership of a motor vehicle is prima facie evidence that any person driving it and causing damage was driving within the authority and for the purposes of the owner. Jennings v. Hannan [dlvii]15; Harry Rambarran v. Gurrucharran [dlviii]16. The same inference could perhaps be drawn from the evidence that Tomonoi used to be seen driving the vehicle. There is no evidence that Tomonoi had express authority to give a lift. On the other side of the line this is not such a case as Twine v. Bean’s Express[dlix]17 where thverriver was expressly forbidden to carry unauthorized passengers and a notice to that effect waplayed in t in the vehicle, or Young v. Edward Box & Co. Ltd.[dlx]18. Whether such authority could be implied depends upon the facts of the case. In Joss v. Snowball[dlxi]19 itheld that that in absence of any evidence bearing upon the matter, or to be found in local conditions it could not be inferred that a country field representative “had ostensible authority in the course of his employment as distinct from a mere permission concurrently with his employment, to give lifts” (at p. 50). In Twine v. Bean’s Express[dlxii]20 Uthwatt J left open the question “Whether a stray passenger, picked up byiver to whom no contrary instruction had bead been given falls within the class of persons” to whom the employer’s duty was owed.

In this case the deceased was not a single stray passenger but one of a party of ten persons who were permitted by the driver to travel on the utility truck. The onus was on the respondent to show that the permission by the driver to the deceased fell within the scope of the driver’s authority. In the case of a coffee buyer driving a utility truck along the Highlands Highway an implied authority could perhaps be inferred for the driver to give a lift to a stray passenger. But it is a different matter when the driver confers permission upon a group of passengers which, without exercising hindsight from the facts of this case—three men were killed and five injured—could quite possibly involve the appellant or its insurers in the risk of liability in large sums of money arising from claims for damages for personal injuries or death should an accident occur as the result of the driver’s negligence. To infer an authority to give such permission from the meagre facts proved in evidence would, in my opinion, be unjustified. Accordingly the appeal must succeed. The appellant’s liability is limited to $8,000.00 under the Motor Vehicles (Third Party Insurance) Ordinance, s. 6.

At the hearing counsel for the appellant sought leave to add a further ground of appeal to the effect that, in view of Tomonoi’s state of intoxication, there was no evidence of any duty owed by the appellant to the deceased, or, alternatively, of any breach of any such duty; and that if the learned trial judge found to the contrary his finding was against the evidence and the weight of evidence and was unreasonable. The appellant’s counsel relied particularly on the judgment of Sir Owen Dixon in Insurance Commissioner v. Joyce[dlxiii]21 in which ate set out the three forms of defence, viz. no breach of duty, (the form preferred by the learned judge), volenti non fit injuria and contributory negligence, which in an action brought by an injured passenger may be stated on behalf of the driver whose ability to drive or control a car has been impaired by drink. That these three forms of defence are available in such an action was also decided in the same case by Latham CJ at p. 46 and also in Roggenkamp v. Bennett[dlxiv]22.

When counsel for the respondent opposed the application this court decided to hear the ground argued and reserved its decision as to whether leave should be given. I would have been in favour of granting the application because the judge’s notes show that following an amendment of the pleadings the defence was in effect pleaded and relied on at the hearing. However, on the view I have taken of the case a decision on this point is not necessary, and I propose merely to refer to the points raised in the argument.

In the two High Court cases referred to, the actual decision upon the appeal turned on the defence of volenti non fit injuria which on the facts in each case was upheld. In England, however, it has been held by the Court of Appeal, despite a strong dissenting judgment by Salmon LJ and contrary to the views of the High Court, that the standard of care does not vary with a known disability of the driver. Nettleship v. Weston [dlxv]23. That was a case in which the duty of care owed by a learner driver to a passenger instructor arose for decision. The views of the majority, Lord Denning MR. and Megaw LJ are well summed up in the headnote:

“Uncertainty, confusion and injustice would result if in the law of England the accepted standard of care were to be varied according to one person’s knowledge of another’s skill or condition.”

The judgment of Lord Denning MR. makes it quite clear that he was referring also to cases of impairment of faculties by drink. His Lordship also pointed out, “The knowledge of the passenger may go to show that he was guilty of contributory negligence in ever accepting the lift—and thus reduce his damages . . .” (at p. 700). Counsel for the respondent submitted that the views of the Court of Appeal should be preferred by this court. This submission involves the application of s. 16 of the Laws Repeal and Adopting Ordinance 1921 of New Guinea whereby it is provided that the principles and rules of common law and equity that were in force in England on 9th May, 1921 shall be in force in the Territory so far as the same are applicable to the circumstances of the Territory, and are not repugnant to, etc. the provisions of any Act, Ordinance, etc. If this issue does arise for future decision, the final test may be whether the acceptance of a standard of care varying according to the person’s knowledge of another’s skill or condition is applicable to local circumstances. It might then be thought that the difficulty of communication because of the many languages spoken in the country should be a relevant consideration. Thus in a given situation because of the increased mobility of the people there may well be found a group of people unable fully to communicate with each other. Without deciding the matter, this consideration would incline me to the view that the law applicable in Papua New Guinea is that laid down in Nettleship v. Weston [dlxvi]24.

I turn now to the appeal on the ground of the voluntary assumption of the risk. Upon rather special facts to which it is unnecessary to refer, that defence arose also for consideration in Nettleship v. Weston [dlxvii]25. Lord Denning MR. stated the law as follows:

“In former times this defence was used almost as an alternative defence to contributory negligence. Either defence defeated the action. Now that contributory negligence is not a complete defence, but only a ground for reducing the damages, the defence of volenti non fit injuria has been closely considered, and, in consequence, it has been severely limited. Knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant; or, more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him . . . The doctrine has been so severely curtailed that in the view of Diplock LJ: ‘the maxim in the absence of expressed contract has no application to negligence simpliciter where the duty of care is based solely upon proximity or “neighbourship” in the Atkinian sense’: see Wooldridge v. Sumner [1962] EWCA Civ 3; (1963) 2 Q.B. 43, 69.”

See also per Megaw LJ at p. 710.

In Australia it appears that the courts are more ready to infer a voluntary assumption of the risk. Thus in Sara v. Government Insurance Office of New South Wales[dlxviii]26 in st the lthe law as established by the High Court Walsh JA. (as he then was) said:

&#82 truth I th I think probably the situation is that if the plaintiff, with sufficient knowledge, voluntarily accepts the risk of physical injury, then without proof of any further fact concerning a supposed bargain between the parties, the law as it has been developed declares that in that situation and in that relationship the result is that the plaintiff has consented to being without remedy if injury should occur of the same kind as that which she knew to be likely because of the condition of the driver”.

But I do not consider that it is necessary in this case to decide whether the law applicable in Papua New Guinea is that expressed in Nettleship v. Weston[dlxix]27 or in the Australian cases, and there are two other considerations which would lead me to lthe matter open. First it i it is possible that the degree of drunkenness of Tomonoi was so “extreme and glaring”—”like walking on the edge of an unfenced cliff”—that it would support the strict inference required in the English rule. See Dann v. Hamilton[dlxx]28 cited approapproval by Denning LJ in Nettleship v. Weston [d29. Sec. Secondly, the trial judge’s judgment really turns on the point whether there was any assumption of the risk voluntarily, and the issue can I find be decided upon this point. It was a question of fact for the trial judge. Mr. Brennan argued that the matters taken into account by the trial judge were matters for which the driver was not responsible, but I consider them matters which, it could be inferred from the evidence were known to the driver as likely to give rise to a dilemma in the minds of the passengers if he rendered himself incapable of driving. Counsel then submitted that the circumstances before the court did not establish any reasonable ground for apprehension of bodily injury on the part of the deceased, if he left the vehicle. He thus submitted that the situation at Kamaliki should be looked at and, in particular, the evidence that the trade store was well-lit and could be assumed to have been kept well-lit at night for security purposes, and also the finding that a P.M.V. transport system was operating. It was thus submitted on behalf of the appellant that there was a free choice open to the deceased either to remain and avail himself of that alternative means of transport or by proceeding further on the journey voluntarily to assume the risk. But there was no evidence of any regular bus service or the times which would elapse before a P.M.V. could be expected to have passed the store at night. If the situation was not looked at as it was at Kamaliki but as from the commencement of the journey, it was submitted on behalf of the appellant that the effect of the judgment was that the deceased was placed in the position of having a legal claim as against the company to be driven from Henganofi to Goroka. But Dixon J considered a moral claim sufficient to justify a passenger in some cases in not relinquishing his seat (Insurance Commissioner v. Joyce [dlxxii]30), and no more is involved in the present judgment, in my opinion, than that. On the whole I am not convinced that the trial judge was wrong in concluding that the deceased had no real practical choice but to continue, and that he exposed himself to the danger only because of the peculiar situation operating in the Highlands of which the driver must have known. The deceased, in my opinion, also had a moral claim in the circumstances as against the driver to remain in the utility on its journey to Goroka which was sufficient to prevent any inference being drawn against him by his continuing on the journey. On this question of fact I am, therefore, not convinced that the trial judge was wrong and would, therefore, dismiss the appeal on this ground.

Whilst it is not strictly necessary it may prove convenient if the case is taken on appeal, to consider the final ground of appeal, that the award of damages was excessive. The trial judge arrived at the sum of $19,500.00 by assessing the loss of dependency at the rate of $50.00 per fortnight and then taking a multiplier of 15 years purchase. I have made some observations upon the use generally of the method in Smerdon v. Raquel[dlxxiii]31. However, counsel for the appellant stated that he took no objection to the use of this method, so that it remains as the only method of assessing damages in this case.

At the date of death the deceased was aged 29 years and the respondent 25 years. Their two children were then respectively three years of age and nearly eight months. There is a strong possibility that there would have been other children. The deceased, a school teacher by profession, as an acting grade 2 teacher received a gross salary of $1,530.00 per annum. In June, 1970 it would have been increased to $1,605.00. He had good prospects of advancement and the trial judge considered that he would have qualified as a grade 3 teacher, the salary for which, at the time of the trial, was $2,155-$2,475 per annum, but probably no further. The respondent stated that the deceased’s gross salary was $47.00 per fortnight, of which he received in cash $36.00. But in the absence of evidence as to the various deductions applicable, that is for retirement fund, insurance, tax and rent, it is difficult to reconcile the respondent’s evidence with a gross salary of $1,530.00. The trial judge seems to have taken the figure of $47.00 as the net salary with rent only to be deducted, but even on that basis in view of the evidence of the deceased’s personal expenditure of about $4.00 per fortnight and the deduction to be made for his food and clothing out of the family expenditure of $28.00 per fortnight, the fortnightly dependency could not have been much more than about $31.00. As there is no evidence of the period of years it would have taken the deceased to reach his maximum salary of $2,475.00, which is $95.00 per fortnight gross, the task of arriving at an average fortnightly dependency over his career was made even more difficult than in the usual case. But as the figure of $50.00 taken by the trial judge is more than half of that maximum, in my opinion, this is an indication that that sum was too high. Further, if the total award of $19,500.00 were invested at 6%, the annual income is $1,170.00 or $45.00 per fortnight which exceeds more than half of the deceased’s maximum net income whilst leaving the capital intact. As Lord Guest said in Taylor v. O’Connor[dlxxiv]32 in a passeae dealing with the “multiplier” method, which was relied upon by the appellant’s counsel, “the aim of this exercise is to provide a figure which is proportionate to the injury resulting from the death. It is not to provide such a sum as would at current rates of interest leave the widow with the income she has lost. This would put her into a better position than she would have been apart from the death because at the end of the day she would still have the capital sum left” (at p. 135). So far I have treated the case, as the learned trial judge did, as if the respondent were an English or Australian widow. Upon this basis, having regard to the age of the parties, the multiplier of 15 could not be challenged. Mallett v. McMonagle [dlxxv]33. However, no proper assessment can be made without regard to the different social and economic conditions applicable in Papua New Guinea. Considerations by way of deduction to be given greater weight in Papua New Guinea are the respondent’s position following the award of damages as a wealthy widow indeed in Papua New Guinea society, which must enhance the prospects of her eventual re-marriage, and, further, as affecting the degree of support she could expect from the deceased, the durability of her marriage by native custom, the real possibility from time to time of the deceased’s incapacity by illness or supervening accident, or death before attaining retirement age. In this developing society I consider that there is a particular need for the customary moderation of the courts in assessing damages. In all the circumstances I consider, if damages were in issue, that the award is excessive and I would accordingly reduce the loss of dependency to $40.00 per fortnight and the multiplier to 12, making a total award of the round figure of $12,500.00 apportioned $2,300.00 to Doris $2,200.00 to Vari and $8,000.00 to the respondent.

For the reasons I have earlier stated the appeal should be allowed and the judgment against the appellant should be in the sum of $8,000.00 and the amount of the judgment against the respondent Tomonoi should remain unaltered. I would apportion that sum as to $5,500.00 to the widow, $1,300.00 to Doris and $1,200.00 to Vari.

CLARKSON J: I agree that in the circumstances as they existed at the time of the accident it was not shown to be within the scope of the driver’s employment to carry the deceased as a passenger and that the employer is not liable. I agree with the reasons expressed by Frost SPJ on this aspect and would add some comments of my own.

Whether or not the owner owed a duty to the deceased as passenger when the journey commenced at Henganofi—and on the evidence I do not think it is shown that the owner did—I find it extremely difficult to accept that a duty was owed by the owner to the deceased when he boarded the vehicle at Kamaliki. At that stage, the obvious risk of injury and the dilemma in which the deceased found himself had been caused by the continued and excessive drinking of the driver in the presence of the deceased but of which clearly the owner had no knowledge.

This is a case where there is no direct evidence of the driver’s authority to drive the vehicle nor to carry gratuitous passengers and the question is whether these authorities are implied in the circumstances established by the evidence. The first may I think be easily inferred; but it seems to me unreal in the circumstances to which I have referred to infer that the driver had the owner’s authority to carry the deceased from Kamaliki to Goroka as a gratuitous passenger or at all.

If one then accepts, as I do, the ratio of Twine’s case[dlxxvi]34, the claim against the appellant fails except to the extent of the statutory liability of $8,000.00.