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Kei v Hasu [2004] PNGLR 50; [2004] PNGLR 414 (3 December 2004)

NATIONAL COURT OF JUSTICE

PAULUS KEI

V

TONY HASU;
SAM INGUBA; AND
THE STATE

WAIGANI: SALIKA J

10 June; 3 December 2004

VICARIOUS LIABILITY – Wrongs Act – Vicarious liability of State for torts – Need to plead that employee of State acting in the course of employment.

DAMAGES – Award of K14,200 for repair costs – Award of K13,959 for loss of business – Plaintiff not a tax payer –Section 11 Income Tax Act – Anyone earning more than K3,000 per annum must pay income tax – Plaintiff must pay income tax.

Facts

The plaintiff's public motor vehicle suffered damage as a result of collision with a motor vehicle, belonging to the State and driven by the first defendant, a policeman. The policeman was driving under the influence of alcohol and was negligent.
The plaintiff brought an action for damages.

Held

1. The defendant having failed to file a defence, judgement on liability is entered and damages be assessed.

2. The plaintiff failed to plead and establish that the first defendant, a policeman, was acting in the course of his employment. The State, as a employer, is not vicariously liable.

Papua New Guinea cases cited

David Kofowei v Augustine Siviri [1983] PNGLR 449.
Eriare Lanyat v George Wagulo & The State [1997] PNGLR 253.

Counsel

G Koi, for the plaintiff.
Ms J Tindiwi, for the third defendant.

03 December 2004

Salika j. The plaintiff in this matter was the registered owner of a Public Motor Vehicle, Registration number P425B (the PMV), a 25 seater bus. This motor vehicle was involved in a road accident on 11 June 2003 with a marked police vehicle, a Toyota Land Cruiser 10 Seater Registration number ZGB 337. The police vehicle was driven by the first defendant who is a policeman. The PMV was driven by the plaintiff employed driver Dopu Thomas.

The accident occurred at the junction of Cameron Road and Jabiru Drive, Gordons. The PMV was waiting on Cameron Drive to allow the police vehicle to pass before it could turn right to the Lapwing Drive, Gordons. The police vehicle was coming from the opposite direction and ran front on onto the PMV.

The plaintiff alleged that the driver of the police vehicle was driving under the influence of alcohol at the time of the accident. He alleged that the police driver was charged by the traffic police and is awaiting trial on the matter.

The plaintiff alleged that the accident has adversely affected the daily operation of his PMV bus and as a result of that he has suffered loss and damage in that he has been left with a huge repair cost.

The plaintiff alleged that the first defendant drove while under the influence of alcohol and that he drove at excessive speed without due care and attention. He alleged that the first defendant did not take proper control of the vehicle he was driving and that the first defendant was negligent in his driving of the police marked motor vehicle.

The plaintiff has claimed damages for cost of repair of the PMV bus and for loss of business.

The second defendant and the third defendants are sued vicariously. After the writ of summons had been served on the defendants, the first defendant failed to file a notice of intention to defend and a defence. A default judgement was entered against the first defendant with damages to be assessed on the 10 September 2003. In relation to the issue of liability against the third defendant it was ordered to proceed to trial and if found liable then damages to be assessed then.

This court therefore proceeds on the basis that the first defendant is liable. The third defendant is only sued because it employs the first defendant and may be vicariously liable for any acts or omissions of its employers or agents or servants. The first defendant did not file a notice of intention to defend nor did he file a defence. The effect of his failure to file a notice of intention to defend and a defence is that he admits responsibility and liability. On that basis the Court ordered default judgement against him.

In so far as the third defendant is concerned the only issue in order for it to be also liable is whether the first defendant was acting in the course of his police duty so as to render the State liable. If the first defendant was on duty and acting in the course of his employment when the accident occurred then it could be argued that it is liable. If it is not established that he was acting in the course of his duties then the State may not be liable.

The first defendant needed to file a defence. He did not. He is therefore liable. The first defendant has not denied he was driving the motor vehicle that caused the accident. He has not denied being a policeman and performing his duty as a driver of that motor vehicle. He has not denied he was negligent. As he had not denied the allegations that were served on him. He was found liable by virtue of the default Judgement. The State also did not file a notice of intention to defend nor a defence but when application for a default judgement was made the court ordered that the second defendant and the third defendants liability to proceed to trial.

The State filed a submission on liability and assessment of damages on 8 December 2003. In that submission it was submitted that the third defendant is not vicariously liable for the negligent acts or omission of the first defendant. It submitted that the first defendant was doing his own thing and not on official police duty. The State submitted that there is no evidence that the State is liable. It submitted that there is no evidence that he was carrying out orders. It submitted that the first defendant is liable in his own capacity and the State should not be dragged in. It also submitted that the first defendant was never its servant nor agent performing his duties.

The fact of the matter however is that while the State has made those assertions it has made them without any evidence. It has also made them without filing a defence.

On the other hand the plaintiff would be assuming that because the first defendant was driving the police marked vehicle he was a policemen and acting in the course of his employment.

The situation now has been brought about when a default judgement was not entered against the State. This is unusual because normally an application for a default judgement is either granted or not granted. Where it is not granted the defence is given time to file its defence. No defence was filed. No application was made by the State to file its defence out of time.

It is trite law that the State is liable for wrongs committed by its servants or agents in the course of performing their duties and responsibilities to the extent that the duties and responsibilities had been conferred or imposed on them by the agencies of the State and that those servants and agents were actually performing those duties and responsibilities. Section 1(4) of the Wrongs (Miscellaneous Provision) Act specifically spells that out – See David Kofowei V Augustine Siviri (1983) PNGLR 449, Eriare Lanyat V George Wagulo & The State (1997) PNGLR 253.

In this case the first defendant was alleged to be a serving member of the Royal Papua New Guinea Constabulary. There was no denial of that allegation, nor has there been further proof of that.

The plaintiff's pleadings in the Statement of Claim does not allege that the first defendant was performing his duties and responsibilities at the material time and that by virtue of performing those official duties he negligently cause the accident. This is a vital omission by the plaintiff in my view. A plaintiff who sues another party on the basis of vicarious liability in my respectful view must specifically plead that fact; that is that the employee or agent was in the normal course of doing business when the wrong was committed.

In the Statement of Claim the plaintiff pleaded that:-

1. The plaintiff is a natural person who is capable of suing and being sued in his own name and style.

2. The first defendant is a natural person and is a serving member of the Royal Papua New Guinea Constabulary.

3. The second defendant is the Commissioner for Police and is sued in his capacity as such.

4. The third defendant is the employer of the first and second defendants and is vicariously liable for any acts or omissions of the First and Second defendants.

5. The plaintiff is the owner of a Public Motor Vehicle bus and a PMV operator here in the National Capital District.

6. On or about the 11 January, 2003 at about 3.30 pm, the plaintiff's PMV Registration No P425B, a Route 17 Bus driven by the driver Thomas Dopu was approaching Lapwing Drive turn off along Gordon Circuit, from the round about of Kennedy Road, Cameron Road and Goodwit Road fully loaded with passengers.

7. The first defendant drove a marked Police Vehicle, a Toyota Land Cruiser 10 Seater Registration No ZGB 337 blue in colour, whilst under the influence of alcohol at a very high speed on Gordon Circuit in the opposite direction, from the roundabout of Cobon street.

8. The first defendant whilst driving along, lost control of his vehicle. The Toyota Land Cruiser crossed over to the opposite lane where the plaintiff's PMV bus was coming. The PMV driver realized that the Toyota Land Cruiser was driving right at the PMV, suddenly applied its brakes causing it to come to a sudden stop,

9. The Toyota Land Cruiser's front left side hit the PMV bus right in the centre causing substantial damage. The PMV was rendered un-operational as at 11 January, 2003.

10. The first defendant was charged by the Traffic Police for driving whilst under the influence of intoxicating liquor contrary to Section 18(a) of the Motor Traffic Act and for driving without due care and attention, contrary to Section 17(2) of the Motor Vehicle Act.

11. The accident had adversely affected the daily operations of the plaintiffs PMV bus and has left the plaintiff with huge repair bills.

12. The accident was caused as a result of the negligent driving of the Toyota Land Cruiser by the first defendant.

13. Particulars of Negligence:

(i) The first defendant did drive the Toyota Land Cruiser whilst under the influence e of alcohol;

(ii) the first defendant did drive the Toyota Land Cruiser at an excessively high speed;

(iii) The first defendant did not drive with due care and attention;

(iv) The first defendant did not control the said Toyota Land Cruiser by keeping it on its own lane and did not apply the brakes or slow down when negotiating a slight curve and approaching on coming vehicles;

(v) The first defendant did drive excessively without due regard to the plaintiff's PMV bus or to any other user of the road, at the material time.

14. The third defendant is therefore liable for the said negligent driving of the first defendant.

15. As a result of the negligent driving of the first defendant, the plaintiff sustained damages to his PMV bus which requires substantial repair which quoted from three workshops ranging from about K42,000 to K25,000.

16. The plaintiff has from the 11 January 2003 made a loss of business at K200 per day for 6 days for as long as the PMV bus is undergoing repairs.

17. The plaintiff therefore claims:

(i) Damages for cost of the repair of the PMV bus;

(ii) Damages for loss of business at K200 per day for 6 days per week from 11 January, 2003.

(iii) Exemplary Damages;

(iv) Interest at 8%

(v) Cost of this proceedings

(vi) Such other order as the Court deems necessary.

While the plaintiff did allege that the third defendant was the employer of the first and second defendants and that is vicariously liable for the acts of the first and second defendants, he did not allege that the first defendant was indeed acting in the normal course of his employment. That in my view is vital because the State in any case can only be vicariously liable if it was pleaded and evidence led that the first defendant was performing or carrying out his official duties as ordered by the second defendant or by the State. In my view that is a fatal omission by the plaintiff. The plaintiff did not specifically make these allegations. In the plaintiff's own evidence he did not say that the first defendant was on duty in police uniform and driving in a negligent manner. There are no allegations in the pleadings that the first defendant was acting within the scope of his employment. On that point I cannot find the second and third defendants to be vicariously liable for the actions of the first defendant.

The plaintiff has argued in the alternative that even if the actions of the first defendant do not fall within the ambit of Section (1)(a) and Section 1(4) of the Wrongs Act the State is still liable under Section 1(c) of the said Act. Section 1(c) of the Wrongs Act says:-

Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

That provision in my view comes in to play if the first defendant was acting in the course of his employment. Moreover, that submission cannot stand because the plaintiff has not pleaded Section 1(c) of the Wrongs Act in the alternative.

In the circumstance I find the second and third defendant not liable.

Damages

Liability has been determined in so far as the first defendant is concerned. The plaintiff still has the burden to prove his damages. The National Court has over the years required plaintiffs to prove their losses by way of proper evidence. It is only proper and fair to do so. The plaintiff in this case has in that regard relied on his affidavit evidence sworn on 28 November 2003 and filed on 1 December 2003. He filed his notice of intention to rely on his affidavit evidence pursuant to Section 35 of the Evidence Act on 5 December 2003. In return the defendants on the same day 5 December 2003 filed their notice to cross examine the deponent pursuant to s.36 of the Evidence Act. When the plaintiff gave his evidence the first defendant was not present nor were his lawyers. The plaintiff's evidence was therefore uncontested.

The plaintiffs evidence is that in the accident his vehicle was damaged and so he had to get it working again. He spent K14,200 to put the PMV bus on the road. While the plaintiff has not provided any receipt of payment for the repairs I am nevertheless satisfied that he did pay for the repairs in the amount of K14,200 as he claimed. I accordingly award him the K14,200 repair costs.

The plaintiff also claimed damages for loss of business and profits. He produced his bank statement and his record of daily takings. He said he lost K13,959.00 from 11 January 2003 to 21 June 2003. The plaintiff however does not show if he is paying any Income Tax to the State. He has not produced any Income Tax Returns as evidence of paying his Income Tax. It therefore appears that while the plaintiff was running a business he was not paying any Income Tax to the State. I suspect there are many other such operators like the plaintiff who do not pay Income Tax to the State. The State Agency responsible for collecting taxes is the Internal Revenue Commission. It must clamp down on such operators. Any PMV operator or taxi operator whose income is more than K3,000.00 and who does not pay Income Tax to the State should be penalized for that default see Section 11 of the Income Tax Act. The plaintiff has not produced evidence that he is exempted from paying income tax.

The PMV makes an average of K635.00 per week. This evidence is from the plaintiff is in paragraph 9 of his affidavit. That would be an average of K33,020 per annum. In this case the bus was out of business for 22 weeks. He therefore lost K13,959.00 as a result of the bus being taken off the road.

There is no evidence to the contrary. In the circumstances I award K13,959.00 as damages. That is to be paid by the first defendant.

The total in summary is:-

Loss of business @ K13,959.00

Cost of repairs @ K14,200.00

Total awarded is K28,159.00

Interest at 8% @ K 2,252.72

Grand Total @ K30,411.72

As the plaintiff has not been paying taxes to the State, I order that he pay tax on this awarded amount plus Income Tax on K33,020.00 per annum for one year. I do not know exactly how long he has been operating like that but I am of the view that at least he be made to pay one year Income Tax. That should be calculated by the Registrar.

Lawyer for the plaintiff: Yapao Lawyers.
Lawyer for the defendant: Solicitor General.