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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1082 OF 2010
HELEN JIMMY
Plaintiff
V
PAUL ROOKES
Defendant
Madang: Cannings J
2011: 19 December,
2012: 10 February, 25 June
NEGLIGENCE – motor vehicle collision – proof of ownership of vehicle – whether plaintiff proved that driver of other vehicle was negligent – relevance of defendant's conviction for traffic offence – defence of contributory negligence.
A collision between a bus allegedly owned by the plaintiff and a utility driven by the defendant resulted in damage to the bus. The defendant was convicted in the District Court of driving without due care and attention. The plaintiff then sued the defendant, claiming damages for negligence. The defendant denied liability on two grounds: that the plaintiff failed to prove that she owned the bus and that the plaintiff failed to prove the defendant drove negligently. The defendant also argued that if a cause of action were established against him the driver of the bus was guilty of contributory negligence. A trial was conducted on the issue of liability.
Held:
(1) Though the plaintiff failed to adduce a certificate of registration, which would normally be sufficient evidence of ownership, she deposed on oath that she was the owner and the defendant failed to adduce any evidence to the contrary. The plaintiff proved ownership.
(2) The natural inference arising from a conviction for a traffic offence relating to a motor vehicle collision is that the person convicted was negligent. Though the defendant adduced evidence asserting that he was not negligent it was insufficient to rebut the inference that he was. The plaintiff established a cause of action in the tort of negligence.
(3) The defendant proved on the balance of probabilities that the driver of the bus was guilty of contributory negligence.
(4) Liability was established subject to a finding of 25% contributory negligence. The question of assessment of damages was referred to mediation.
Cases cited
The following cases are cited in the judgment:
Alphonse Kopi v The State [1994] PNGLR 475
Andrew Moka v MVIL (2004) SC729
Andrew Nagari v Rural Development Bank (2007) N3295
Anis v Taksey (2011) N4468
Aundik Kupil v The State [1983] PNGLR 350
Barclays Bank v Cole [1967] 2 WLR 166
Brian John Lewis v The State [1980] PNGLR 219
Brown v MVIT [1980] PNGLR 409
Eastern Highlands Provincial Government v Aita Ivarato (1999) N1893
Garo Kei v MVIT [1992] PNGLR 195
Goody v Oldham's Press Ltd [1967] 1 QB 333
Hollington v Hewthorn [1943] 1 KB 587
Joe Danga v MVIT (1997) N1665
John Kaina v The State [1990] PNGLR 292
McIlkenny v Chief Constable [1980] 2 All ER 227
Omonon v Kuanga (2012) N4686
Otto Benal Magiten v Bilding Tabai (2008) N3470
Pastor James Molu v Dokta Pena (2009) N3817
Peter Wanis v Fred Sikiot and The State (1995) N1350
PNG Institute of Medical Research v PNGBC (1999) N1934
Rabaul Shipping Limited v Peter Aisi (2006) N3173
Re Fisherman's Island [1979] PNGLR 202
Regina v Holland [1974] PNGLR 7
Sembi Paikel v Kaiwe Pty Ltd [1997] PNGLR 603
Stupple v Royal Insurance Co Ltd [1971] 1 QB 50
Thomas Paraka v Thomas Upaiga and The State (2010) N4090
Wamena Trading Limited v Civil Aviation Authority (2006) N3058
WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003
Yange Langan v The State (1995) N1369
TRIAL
This was a trial on liability for negligence.
Counsel
B W Meten, for the plaintiff
Y Wadau, for the defendant
25 January, 2012
1. CANNINGS J: On Thursday 13 January 2005 there was a collision between:
2. The collision occurred at 10.30 pm on Modilon Road, Redscar, Madang. The plaintiff alleges that the defendant drove negligently and caused the collision, as a result of which her bus, which was used as a Public Motor Vehicle, was damaged and off the road for a considerable period. She has brought a negligence action against the defendant, claiming damages of K45,019.00 for damage to the bus, damages for loss of income, special damages and general damages for pain and suffering. The defendant denies liability on two grounds: that the plaintiff failed to prove that she owned the bus and that the plaintiff failed to prove that he drove negligently. The defendant also argues that in the event that a cause of action is established against him the driver of the bus was guilty of contributory negligence and that the amount of any damages assessed against him should be reduced accordingly. A trial was conducted on the issue of liability, including contributory negligence. The issues are:
1 HAS THE PLAINTIFF PROVEN THAT SHE OWNED THE BUS?
3. This has become an issue as the plaintiff has not adduced any direct evidence that she owned the bus other than a statement in her affidavit that she was the owner and the registration number was P933W. The plaintiff has failed to adduce the obvious document that would prove ownership: a certificate of registration issued under the Motor Traffic Act. In many cases the National Court has highlighted the relevance of a certificate to the question of ownership: Garo Kei v MVIT [1992] PNGLR 195, Peter Wanis v Fred Sikiot and The State (1995) N1350, Sembi Paikel v Kaiwe Pty Ltd [1997] PNGLR 603, Joe Danga v MVIT (1997) N1665, Eastern Highlands Provincial Government v Aita Ivarato (1999) N1893, Andrew Nagari v Rural Development Bank (2007) N3295, Pastor James Molu v Dokta Pena (2009) N3817, Thomas Paraka v Thomas Upaiga and The State (2010) N4090.
4. The certificate of registration is the critical document and it is surprising that it has not been adduced in evidence. Proof of ownership is an essential part of the plaintiff's case. She cannot establish liability unless she proves that she owned the bus. However, though all of the cases just listed demonstrate the significance of a certificate of registration none of them say that without a certificate of registration a party cannot prove ownership of a motor vehicle; and there is no statutory provision that says that either. The court is obliged to weigh and assess all the evidence when determining the question of ownership. Here the plaintiff has given sworn testimony that she is the owner of the vehicle. The defendant has adduced no evidence to the contrary. (Which is also surprising. It would seem to be a simple investigation to undertake, to check the registration of a motor vehicle.) The approach to the task of determining disputed facts in such situations was explained by Wilson J in Re Fisherman's Island [1979] PNGLR 202:
Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could accept it. If for any reason which recommends itself to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness before the court or judicial tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it.
5. The same principle was outlined by the Full Court of the pre-Independence Supreme Court (Frost ACJ, Clarkson J, O'Loghlen AJ) in Regina v Holland [1974] PNGLR 7 and more recently by Woods J in Alphonse Kopi v The State [1994] PNGLR 475 and by Lay J in Rabaul Shipping Limited v Peter Aisi (2006) N3173.
6. Here, there is evidence in the plaintiff's affidavit, which was admitted into evidence without objection, that she was and is the owner of the bus. There is no evidence to contract it. So I am bound to accept the plaintiff's evidence unless it is so incredible or unreasonable that no reasonable person could accept it. Is what the plaintiff deposes to so incredible or unreasonable as to be objectively unacceptable? No. There is evidence in the defendant's affidavit that the plaintiff has been pursuing him over this matter since the date of the collision. She has been acting as if she were the owner. The defendant has, it appears, a suspicion that she is not the owner, and well he might, but that does not mean that her evidence of ownership is so unreasonable or incredible that it would be not accepted by a reasonable person. I have been provided with no reason to relieve me of the obligation to accept the plaintiff's evidence. I conclude that the plaintiff has proven on the balance of probabilities that she is the owner of the bus.
2 HAS THE PLAINTIFF PROVEN NEGLIGENCE AGAINST THE DEFENDANT?
7. The critical fact for the purposes of determining whether the defendant is liable in negligence is that, for his role in the collision, he was charged by the police and convicted by the Madang District Court (his Worship Mr Tanga Kuri presiding) on 2 March 2005, of the offence of driving without due care and attention, contrary to Section 17(2) of the Motor Traffic Act. He was fined K300.00, payable within 24 hours, in default nine months imprisonment. He appealed to the National Court against his conviction but the appeal was on 25 October 2006 dismissed for want of prosecution. So his conviction stands. The plaintiff relies upon this conviction as evidence that the defendant drove negligently. Surprisingly the police accident report has not been adduced in evidence to support that contention. Be that as it may, there is no rule of law that says that in civil proceedings for negligence arising from a motor vehicle accident a police report must be adduced in evidence. The certificate of conviction has been admitted into evidence under Sections 45 and 47 of the Evidence Act, which state:
45. Convictions
(1) The conviction by a court of a person for an offence may be proved by—
(a) producing a certificate containing the substance of the conviction purporting to be signed by the officer having the custody of the records of the court; and
(b) showing that the person whose conviction is sought to be proved is identical with the person named in the certificate.
(2) It is not necessary to prove the signature of the officer referred to in Subsection (1) or his official position, or the truth of a statement made by him.
47. Use of convictions
(1) In any civil proceedings the fact that a person has been convicted of an offence by or before a court in the country or by a court-martial in the country or elsewhere is, subject to Subsection (3), admissible in evidence for the purpose of proving that he committed the offence, whether he was so convicted on a plea of guilty or otherwise and whether or not he is a party to the proceedings, but no conviction other than a subsisting one is admissible in evidence under this section.
(2) The fact of a conviction is not admissible in any civil proceedings merely to prove that the person convicted has a propensity to behave in a particular manner.
(3) In any civil proceedings in which a person is proved to have been convicted of an offence by or before a court in the country or by a court-martial in the country or elsewhere—
(a) he shall be taken to have committed the offence unless the contrary is proved; and
(b) without prejudice to the reception of any other evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document that is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, is admissible in evidence for that purpose.
(4) Where in any civil proceedings the contents of a document are admissible in evidence under Subsection (3), a copy of the document, or of the material part of the document, purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of the document, is admissible in evidence, and shall be taken to be a true copy of the document or the part of the document unless the contrary is shown.
(5) This section does not prejudice the operation of an enactment by which a conviction or a finding of fact in any criminal proceedings is made conclusive evidence, for the purposes of any other proceedings, of a fact.
8. The certificate of conviction is proof that the defendant committed an offence. He does not dispute that he was convicted but argues that he should not have been convicted and that the fact of his conviction does not relieve the plaintiff of the obligation to prove that he drove negligently.
9. On the last point the defendant is correct. Proof of a defendant's conviction of a traffic offence in earlier criminal proceedings does not relieve a plaintiff in subsequent civil proceedings of the onus of proving that the defendant drove negligently. Proof of conviction is one thing. Proof of the elements of a cause of action in subsequent civil proceedings relating to the same events that led to the conviction is another. This raises the question of the weight to be attached to evidence of the conviction.
10. The common law position, represented by Hollington v Hewthorn [1943] 1 KB 587, was that evidence of a criminal conviction is not admissible in subsequent civil proceedings to prove any facts on which the conviction was based. So evidence of a prior conviction carried no weight at all, as it was not even admissible. That strict position is not applicable in PNG, as noted by Bredmeyer J in Aundik Kupil v The State [1983] PNGLR 350, because Section 47 of the Evidence Act abolishes a large part of the rule in Hollington v Hewthorn. However, Section 47 still does not relieve a plaintiff in subsequent proceedings of the onus of proving the case. Caution must be exercised in dealing with prior convictions, as shown by the decisions of the Supreme Court (Woods J, Hinchliffe J, Brown J) in John Kaina v The State [1990] PNGLR 292 and the National Court (Lay J) in WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003 and Wamena Trading Limited v Civil Aviation Authority (2006) N3058.
11. In my view the weight to be attached to evidence of conviction of a driver for a traffic offence in subsequent civil proceedings that relate to the same facts as those considered by the court which convicted the driver, is this: a natural inference arises that the driver was negligent (Anis v Taksey (2011) N4468, Omonon v Kuanga (2012) N4686). An evidentiary burden is then cast upon the defendant to adduce evidence to rebut that inference. This approach has been propounded in a number of British decisions which expressed disapproval of the rule in Hollington v Hewthorn, eg Goody v Oldham's Press Ltd [1967] 1 QB 333, Barclays Bank v Cole [1967] 2 WLR 166, Stupple v Royal Insurance Co Ltd [1971] 1 QB 50, McIlkenny v Chief Constable [1980] 2 All ER 227. The legal burden of proving the case does not shift from the plaintiff but common sense dictates that the defendant needs to bring evidence to throw doubt on the correctness of the conviction.
12. The defendant has attempted to do that in this case. He deposes that he was driving along Modilon Road into town. It was dark. The road was wet. Light rain was falling. A PMV bus (which I have found to be the plaintiff's) pulled out suddenly without indicating. He had no time to avoid it. Hence the collision. He stopped, spoke to the bus driver, Mr Ururu, and they went to the nearby Jomba Police Station and reported the collision. He told Mr Ururu to get three quotes as there was a comprehensive motor vehicle insurance policy covering the utility (owned by the defendant's employer, Rookes Marine) and that he would assist Mr Ururu lodge a claim. He also offered to assist by repairing the bus at the Rookes Marine workshop. Instead the plaintiff and a police officer started harassing him for cash. They wanted K13,261.75, which was the amount of a quote obtained from Ela Motors. He (the defendant) insisted that an insurance claim should be lodged. His offers of assistance were never accepted. Instead the plaintiff and the police officer claimed K45,000.00 from him. In the meantime he was charged with driving without due care and attention. He defended the matter in the District Court and gave sworn evidence that the bus had pulled out without signalling. However, he was found guilty.
13. That evidence does not, in my view, throw sufficient doubt on the correctness of the conviction to defeat the natural inference arising from it that the defendant drove negligently. The part of the evidence about the defendant trying to assist the plaintiff lodge an insurance claim (which seems peculiar as normally it would be the defendant who would be responsible for lodging a claim with his insurer) actually seems to be an admission of fault.
14. I find that the plaintiff has established all elements of the tort of negligence (Otto Benal Magiten v Bilding Tabai (2008) N3470). The defendant owed a duty of care to other road users. He drove the utility negligently and caused the collision, which led to the damage to the bus which is not of a type that is too remote. Liability is therefore established against the defendant.
3 HAS CONTRIBUTORY NEGLIGENCE BEEN PROVEN?
15. Contributory negligence is a partial defence in a negligence action. It applies where a defendant proves that a plaintiff is partly to blame for the damage for which the defendant has been found liable (Brown v MVIT [1980] PNGLR 409). It is recognised as a defence by Section 40(1) of the Wrongs (Miscellaneous Provisions) Act, which relevantly states:
... where a person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of the damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect of it shall be reduced to such extent as the court thinks just and equitable, having regard to the claimant's share in the responsibility for the damage.
16. The onus of proving contributory negligence rests with the party relying on it (Andrew Moka v MVIL (2004) SC729, PNG Institute of Medical Research v PNGBC (1999) N1934). The defendant has adduced evidence that the driver of the bus contributed to the collision by leaving the kerb without indicating. The plaintiff has not contradicted that evidence. There is also a significant piece of evidence supporting the defendant's contention in the terms of the District Court order recording his conviction. The District Court ordered, in addition to the finding that the defendant was guilty of an offence under Section 17(2) of the Motor Traffic Act and subject to a fine of K300.00, that:
The defendant to meet 75% of the cost of the repairs to the complainant's vehicle [ie the bus] within specified period subject to negotiation by the defendant and the owner of the bus or the complainant in this matter.
17. It is a peculiar order, tantamount to making a determination of civil liability in the course of criminal proceedings, and as it turned out it was set aside by a subsequent order of the District Court. But its legality is not the point here. Its significance lies in the inference that must reasonably be drawn that the learned Magistrate who conducted the trial, while concluding that the defendant was guilty of the offence, considered that the driver of the bus was partly to blame for the collision. The plaintiff's failure to defeat this inference, combined with the defendant's direct evidence of how the collision occurred, convinces me that a finding of contributory negligence should be made.
18. When the time comes to assess damages a reduction in the amount of damages that the plaintiff would otherwise recover will be made to such extent as is just and equitable, having regard to the plaintiff's share in the responsibility for the damage she has suffered (Brian John Lewis v The State [1980] PNGLR 219). The extent of the reduction is expressed in percentage terms. Here I see no reason to depart from the evident opinion of the learned trial Magistrate: the driver of the plaintiff's bus was guilty of contributory negligence to the extent of 25%. Thus the damages that the plaintiff would otherwise recover will be reduced by that percentage.
4 WHAT ORDERS SHOULD BE MADE?
19. As this trial was confined to the issue of liability, no assessment of damages will be made. Assessment of damages is not a formality. The plaintiff seeks in her statement of claim damages of K45,019.00 for damage to the bus, damages for loss of income, special damages and general damages for pain and suffering. The plaintiff is not necessarily entitled to any of those damages. She still needs to prove her losses (Yange Langan v The State (1995) N1369). This raises the question of how damages should be assessed. There are at least three options available to the court: (1) order a trial on assessment of damages or (2) let the parties resolve the matter or (3) order mediation.
20. Under the ADR Rules the National Court is empowered by Rule 5(2), of its own motion, to order mediation for a resolution of any part of any proceedings provided that at the time of considering whether to order mediation it has regard to the factors prescribed by Rule 5(3). I have had regard to those matters. I consider that: (a) mediation will not result in prejudice to the rights of either party; (b) it is reasonably within the ability and power of both parties to comply with a mediation order; (c) mediation will not entail substantial work for either party; (d) the nature of the relief sought lends itself to mediation; (e) a mediation at Madang can be set up very soon and this should be convenient to both parties; (f) neither party has expressed opposition to the prospect of mediation; (g) mediation has not yet been attempted and it should be attempted at least once before consideration is given to setting down a trial; (h) neither party loses the right to have the assessment of damages tried in court; and (i) it is in the interests of justice to attempt mediation as a method of resolving disputes such as this. I conclude that option (3) is the most appropriate as it is the option that has the greatest prospect of finally and quickly determining the dispute. I will therefore make an order for mediation.
21. As to costs, 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. In this case the plaintiff in a sense 75% succeeded, in view of the 25% contributory negligence finding. The costs order will reflect that determination.
ORDER
22. The Court orders that:
(1) The plaintiff has established a cause of action against the defendant for negligence, and accordingly judgment shall be entered for the plaintiff on liability as to 75% of the damages found to have been suffered by her.
(2) The question of assessment of damages shall under Rule 5(2) of the ADR Rules, on the court's own motion, be referred for mediation pursuant to a separate mediation order under Rule 5(4) of the ADR Rules.
(3) The defendant shall pay 75% of the plaintiff's costs of the proceedings to date, on a party-party basis, which shall if not agreed be taxed.
Orders accordingly.
____________________________
Meten Lawyers: Lawyers for the Plaintiff
Young Wadau Lawyers: Lawyers for the Defendant
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