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Banga v Madang Port Services Ltd [2011] PGNC 168; N4302 (14 May 2011)

N4302

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 1218 OF 2008

TITUS BANGA
Plaintiff

V

MADANG PORT SERVICES LIMITED
Defendant

Madang: Cannings J

2010: 26 March, 16 April, 7, 14 May,
2011: 13 May

JUDGMENT

NEGLIGENCE – motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent – tort of negligence

There was a motor vehicle collision between the defendant's semi-trailer and a vehicle, which led to damage being caused to the plaintiff's vehicle. The plaintiff sued the defendant, claiming damages for negligence. The defendant denied liability on the ground that there was insufficient evidence: that the driver of its semi-trailer drove negligently and that, in fact, the driver of the motor vehicle that collided with its semi-trailer (who was killed in the collision) was negligent.

Held:

(1) The plaintiff's evidence was insufficient to prove, on the balance of probabilities, that the driver of the semi-trailer was negligent.

(2) The plaintiff therefore failed to establish a cause of action in negligence against the defendant.

(3) The entire claim was accordingly dismissed, with costs to the defendant.

Cases cited

The following cases are cited in the judgment:

Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
Eton Pakui v The State (2006) N2977

TRIAL

This was a trial on liability and damages.

Counsel

B Tabai,for the plaintiff
G Kogora, for the defendant

13 May, 2011

1. CANNINGS J: On Saturday 29 May 2004 at 5.30 pm there was a fatal road accident on the North Coast Road at Sagalau, on the outskirts of Madang town. There was a collision between:

• an Isuzu semi-trailer owned by the defendant, Madang Port Services Limited, which was being driven by a company employee, Tom Lam Damun, in the direction of town; and
  
• a small Suzuki vehicle, driven by a 27-year-old man (who died instantly from injuries received in the collision), which was heading away from town.
  

2. The effect of that collision was to cause another collision, with an Isuzu utility, a public motor vehicle owned by the plaintiff, Titus Banga, which had been driven by his employee, Arnold Yaulon, but which was stationary, parked outside Sagalau market. The Isuzu utility was damaged and the plaintiff has brought a negligence action against the defendant on the ground that the semi-trailer driver was negligent. He claims damages of K16,885.00 for repairs to the utility. The defendant denies liability. It says that it was the Suzuki driver who was negligent and caused both collisions. In the event that it is found liable it argues that the plaintiff should be awarded nothing as he has not proven any losses. A trial has been held on both liability and damages.

3. The issues are:

1. has the plaintiff proven that the semi-trailer driver was negligent? and
   
2. is the defendant liable in negligence? and
   
3. if the defendant is liable – what damages is the plaintiff entitled to?
   

1 HAS THE PLAINTIFF PROVEN THAT THE SEMI-TRAILER DRIVER WAS NEGLIGENT?

4. The court has been presented with two bodies of evidence. For the plaintiff, Mr Yaulon gave evidence that he had taken passengers aboard in town and was heading north to drop them off at villages in the North Coast area. He stopped at Sagalau market, got out of the utility and bought some betel nut, then got back into the utility and sat in the driver's seat, chewing betel nut. He started the engine and was waiting for the passengers, who had also got off to shop at the market, to get back on board. He saw the Suzuki drive out on to the road and turn north. Then the semi-trailer came along and collided with the Suzuki, and both vehicles then continued in the direction of the utility (which he jumped out of) and collided with it, causing major damage.

5. Generally in support of that version of events is the evidence of the police traffic officer who investigated the accident, Snr Const Frank Makora. He attended the scene 30 minutes afterwards, by which time the body of the deceased driver had been removed. He observed a heavy skid mark on the newly sealed bitumen. He made inquiries and found out who else was involved in the accident and a week later took Mr Yaulon and Mr Damun back to the scene and identified the point of first impact. He later conducted a formal interview of Mr Damun and then on 24 June 2004 charged him with two offences: dangerous driving causing death and dangerous driving causing bodily harm (this charge was in respect of a passenger in the Suzuki). On 25 June 2004 he prepared a road accident report, which concluded that Mr Damun was at fault as he failed to take adequate precautions to avoid a collision. For some reason, however, the criminal proceedings against Mr Damun in the Madang District Court have not been completed. Mr Damun has attended court on a number of occasions and the case against him has not been struck out. The proceedings remain pending.

6. For the defendant, Mr Damun gave evidence that as he approached the market after coming around a bend, heading in the direction of town, he saw that there was a 15-seater bus parked on the left hand side of the road. It is a straight stretch of road and there were no obstructions other than the 15-seater. He slowed down to 30 kilometres-per-hour and moved to the right hand side of the road, to avoid the bus, then immediately after passing it turned back towards the left hand side of the road. As he did so the Suzuki pulled out without warning and came straight into the path of the semi-trailer. He braked heavily but the semi-trailer collided with the Suzuki, which was pushed in the direction of the plaintiff's vehicle and collided with it; though the plaintiff's vehicle did not incur much damage, he said. When the semi-trailer stopped he got out and was preparing to berate the Suzuki driver for causing the accident before realising that he was dead. He stayed at the scene for a short time but then took refuge in the nearby trade store for fear of reprisals.

7. There was no other evidence before the court relevant to the question of whether Mr Damun drove negligently. If his evidence is accepted the conclusion must be reached that it was the Suzuki driver who was negligent. Even if the point of impact was on the right side of the road (heading into town) it would appear that the Suzuki driver failed to keep a proper lookout before turning north. Mr Damun would appear to have a good reason for being apparently on the wrong side of the road. I found Mr Damun to be a credible witness. His demeanour was sound and he gave the impression that he was giving an honest account of what happened.

8. A police accident investigator's opinion must be given considerable weight, of course. Snr Const Makora has been in the Traffic Section for 15 years, so he is an experienced officer and his decision to charge Mr Damun means that the argument that Mr Damun was negligent cannot be lightly dismissed.

9. In the path of that line of reasoning lie three obstacles. First, the unresolved criminal case against Mr Damun. Why has it taken so long – almost seven years – and the case is still unresolved? If he had been convicted, that would lend weight to the argument that he was negligent; but he has not been. Secondly, no independent witnesses have given evidence in the National Court. Four are named in the police accident report but none of their statements has been adduced in evidence. Thirdly, it must be noted that whereas Mr Damun has given very direct and explicit evidence of how the first collision happened, Mr Yaulon's account is less exact. He did not actually see the collision, he just heard it.

10. At this point, two basic principles of civil procedure come to the fore: the court can only decide on a case on the evidence before it and the plaintiff bears the onus of proving his case. Given that I have assessed Mr Damun as a credible witness, and that his evidence supports the proposition that he was not negligent, the evidence adduced by the plaintiff needs to be fairly convincing in order to persuade the court that, in fact, Mr Damun's evidence should not be accepted. The court only has Mr Yaulon's evidence – which does not directly contradict that of Mr Damun – and Snr Const Makora's opinion, which is based, in part, on statements of apparent eyewitnesses, whose evidence has not been available to the National Court.

11. In these circumstances I am not persuaded that Mr Damun's evidence should not be accepted. The plaintiff has therefore failed to prove that Mr Damun drove negligently.

2 IS THE DEFENDANT LIABLE?

12. For a defendant to be liable in negligence, the plaintiff must establish all elements of the tort of negligence (Eton Pakui v The State (2006) N2977, John Kul v The State (2010) N3898, Daniel Occungar v Luke Kiliso (2010) N4102). There is no doubt that the semi-trailer driver owed a duty of care to other road users such as the plaintiff. He drove the semi-trailer in such a way that there was a collision, which led to damage being caused to the plaintiff's vehicle, which is not of a type that is too remote. However, one of the essential elements – that the driver of the semi-trailer was negligent – has not been proven. Therefore the defendant is not liable.

3 WHAT DAMAGES IS THE PLAINTIFF ENTITLED TO?

13. As the plaintiff has failed to establish liability he is not entitled to any damages. His claim fails entirely.

COSTS

14. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. There is nothing about this case to warrant departure from the general rule. The plaintiff will pay the defendant's costs.

ORDER

15. I direct entry of judgment in the following terms:

(1) the plaintiff's claim fails entirely;

(2) costs of the proceedings shall be paid by the plaintiff to the defendant on a party-party basis, to be taxed if not agreed; and

(3) time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly.
____________________________

Tabai Lawyers: Lawyers for the Plaintiff
Doris Gedare, Steamships Ltd: Lawyer for the Defendant