[1973] PNGLR 240

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

PORTER

V

MORRISON-KNUDSEN INTERNATIONAL COMPANY INC. AND ANOTHER

Port Moresby
Williams J

18 April 1973
1 June 1973

NEGLIGENCE - Res ipsa loquitur - Vicarious liability - Special plea not necessary.

The plaintiff, an employee of the defendants, received injuries and consequential loss and damage when he was a passenger in a motor vehicle owned by the defendants and driven by an employee of the defendants when that motor vehicle collided with another motor vehicle which was also owned by the defendants and driven by an employee of the defendants. The collision occurred at night, between the two vehicles travelling in opposite directions. At the time of collision the road was straight and was in good condition; the surface was dry and the weather was fine. The cause of the accident remained unexplained. The defendants elected to call no evidence.

Held

(1)      The principle res ipsa loquitur is merely an aid in the evaluation of evidence and need not be specifically pleaded in the statement of claim. Mummery v. Irvings Pty. Ltd. (1956), 96 C.L.R. 99 and Anchor Products Ltd. v. Hedges (1966), 115 C.L.R. 493 referred to.

(2)      The condition for the operation of the principle res ipsa loquitur is that the accident is such as in the ordinary course of things does not happen if those who have the management use the proper care. Scott v. London and St. Katherine Docks Co. (1865), 3 H. & C. 596, 159 E.R. 665 applied.

(3)      The inference to be drawn from the occurrence of the accident had not been negatived. Each of the drivers was at all relevant times the servant and agent of the defendants, acting within the scope of his employment. Accordingly it was not necessary for the plaintiff to establish that a particular driver was at fault. It was more probable than not that the accident occurred by reason of negligence of one or other or both of the drivers for whose actions the defendants were vicariously responsible.

Action

David Porter brought an action in negligence against Morrison-Knudsen International Company Inc. and Fluor Australia Pty. Limited carrying on business under the firm name and style of Morrison-Knudsen-Fluor, claiming damages for personal injuries sustained on 15th October, 1970, as the result of a collision on the East Coast Access Road, Bougainville, between two Toyota utilities owned by the defendants and driven respectively by Sherlock and Blackstaffe, servants and agents of the defendants. At the time of the collision, the plaintiff was sitting on a seat in the back of the utility driven by Sherlock. The plaintiff’s statement of claim alleged particulars of negligence against both Blackstaffe and Sherlock; it did not allege res ipsa loquitur. The defendants did not call evidence.

Counsel

J. Griffin, for plaintiff.
R. Wood, for defendants.
Cur. adv. vult.

1 June 1973

WILLIAMS J: (His Honour stated the facts and continued):

In his closing address counsel for the plaintiff contended that the principle of res ipsa loquitur applied in the circumstances of this case and that, upon the evidence, the only reasonable conclusion open was that the collision was due to the negligence of one or other or perhaps both the drivers, each of whom was employed by the defendants. Counsel for the defendants contended that the plaintiff could not avail himself of the principle in circumstances where it had not been specifically pleaded in the statement of claim.

No evidence was adduced on the plaintiff’s behalf directed towards any of the particular acts of negligence alleged. It was contended by counsel for the defendants that, in these circumstances, the plaintiff could not fall back on the principle of res ipsa loquitur. No authority was cited in support of this submission.

It is trite to say that the maxim res ipsa loquitur does not represent any special rule of substantive law but is an aid in the evaluation of evidence. It seems to me that provided his pleading is wide enough and the conduct of the case is not such as to confine the plaintiff to particular acts or omissions on the part of the defendants he may, in an appropriate case, rely on the inference to be drawn from the fact that a particular incident occurred (see the majority judgment of the High Court of Australia in Mummery v. Irvings Pty. Ltd.[ccliv]1 and the judgment of Windeyer J. in Anchor Products Ltd. v. Hedges[cclv]2.

In this case the statement of claim alleged negligence on the part of the defendants through their servants and agents and then went on to give a number of particulars of alleged acts or omissions on the part of each of the drivers. There was nothing in the conduct of the case which indicated that the cause of action was other than in negligence. In my view both the pleading and the conduct of the case raised squarely for consideration the question of the vicarious liability in negligence of the defendants for the acts or omissions of their servants and agents. In these circumstances I am of the opinion that it was open for the plaintiff to rely on inference to be drawn from the fact that the accident occurred.

The condition for the operation of the principle is that the accident is such as in the ordinary course of things does not happen if those who have the management use proper care (Scott v. London and St. Katherine Docks Co.[cclvi]3). Upon the evidence in this case two vehicles travelling on a country road in opposite directions collided. The road was straight and was in good condition. The surface was dry and the weather was fine. Upon these facts I find it difficult to escape the conclusion that it is more probable than not that the collision occurred because of negligent act or acts on the part of one of the drivers or perhaps both of them. The plaintiff was not in a position to observe what occurred immediately prior to the collision, although the events immediately preceding the accident are no doubt within the knowledge of the drivers who were the defendants’ employees. The defendants elected to call no evidence. The onus of proof of negligence rests, of course, with the plaintiff. But the cause of the accident remains unexplained by those to whom the acts or omissions causing the accident should have been known. In these circumstances the inference to be drawn from the occurrence of the accident has not been negatived. I find that each of the drivers was at all relevant times the servant and agent of the defendants acting within the scope of his employment. Accordingly it is not necessary for the plaintiff to establish that a particular driver was at fault. I am satisfied that it is more probable than not that the accident occurred by reason of the negligence of one or other or perhaps both of the drivers for whose actions the defendants were vicariously responsible. I accordingly find in favour of the plaintiff on the issue of liability.

His Honour then proceeded to deal with damages.

Judgment for the plaintiff.

Solicitors for the plaintiff: Craig Kirke & Co.
Solicitors for the defendants: Cyril P. McCubbery & Co.

[ccliv](1956) 96 CLR. 99, at p. 110.
[cclv](1966) 115 CLR. 493, at p. 499.
[cclvi](1865) 3 HC. 596; 159 ER. 665.