N6340
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
								
WS NO. 817 OF 2010

BETWEEN:
PRISTINE CO. NO. 8 LIMITED
Plaintiff

AND:
NIUGINI STEEL CORPORATION LIMITED TRADING AS NSC FREIGHTERS
First Defendant

AND:
TOYOTA TSUSHO (PNG) LIMITED TRADING AS ELA MOTORS
Second Defendant

Waigani: Davani, J
					2013:	 30th May & 19th June			
					2016:  4th July

NEGLIGENCE – Defective Workmanship alleged- whether Second Defendant is a servant or agent of the First Defendant.- whether First and Second Defendants owed duty of care to Plaintiffs - whether the First and Second Defendants are negligent.
NEGLIGENCE – Second Defendant constructed reserve fuel tank which was fitted to a Hino Truck – holding clamps to reserve fuel tank snapped - the Plaintiff alleges negligence by first and Second Defendant.

NEGLIGENCE – degree of duty of care - a yardstick to measure negligence - an independent assessor not required -  duty of care to be determined by circumstances of the particular case -  duty of care to  Plaintiff not breached.

AGENCY- Second Defendant, agent of First Defendant –performed the necessary mandatory checks – duty of care not breached.

FACTS:
On or about 30th April, 2009, the Plaintiff purchased a Hino Truck from the Second Defendants branch in Lae.  Prior to the purchase, the First Defendant manufactured and installed a Reserve Fuel Tank to the Hino Truck, done according to the Second Defendants specifications and requirements who had in turn earlier, received instructions from the Plaintiff to construct the Reserve Fuel Tank.  The Plaintiff picked up the truck, then started its runs. It was after having been on the road for 14 days that the Plaintiff’s employed driver, whilst driving in Lae, drove over some deep pot holes at high speed, which resulted in the holding clamps to the Reserve Fuel Tank, snapping off. The Reserve Fuel Tank was dragged on the ground for a while then got caught in the undercarriage of the Hino, forcing the Hino to stop suddenly.  The Plaintiffs employed driver checked the Hino’s undercarriage and noted that it was damaged.
	
The Plaintiff sued the First Defendant for the negligent manner in which it constructed the Reserve Fuel Tank and the Second Defendant, for failing to ensure that the fuel tank was properly fitted. 

It alleges negligence by the both defendants and eventually damages.
The Plaintiff also relies on the principle of Res Ipsa Loquiter.

Held:
1.	In relation to duty of care, the First and Second Defendants do not owe the Plaintiff a duty of care, because they had devised a safe system at work and which its employees took great care in executing; (see Martin v Thorn Lighting Industries Pty Ltd [1978] W.A.R 10)

2.	In relation to duty of care , because the Defendants working or manufacturing system was fool proof, it is for the Plaintiff to show that the defect was caused by some other factor outside the manufacturing process.( see Martin v Thorn Lighting Industries Pty Ltd [1978] W.A.R 10)

3.	In relation to a workshop scenario and an engineer or mechanics duty of care to its customers, if the plaintiff is relying on the Defendants evidence as the standard on 	which to base its assessment of the degree of professionalism and expertise to be exhibited or used as a measuring stick, then the plaintiff would have to rely on independent, technical evidence to support its claim of unprofessionalism and 	negligence (by the Defendant). 

4.	Hence, in relation to the element of the defendants duty of care, if the defendants expert evidence is not challenged by another expert in the same field, then the defendant’s evidence remains good evidence.	

5.	The burden of proof remains with the plaintiff, where the plaintiff relies on the principle of Res Ipsa Loquitor.

6.	The Plaintiff has failed to show, by appropriate and convincing evidence, on the balance of probabilities, that the defendants owe a duty of care to the Plaintiff and that it was breached.	

PNG CASES:

1.	Kepas Waima –v- MVIT[1992] PNGLR 254
2.	Kolta Development Pty Ltd v. PNG Defence Force [1971] PNGLR 585
3. 	Kora Gene –v- MVIT [1995] PNGLR 344;  
4.	Marshall Lagoon Investment Company Pty Ltd –v- Ding Company Ltd (2008) N3650).
5.	Maxine George -v- Burns Philip (NG) [1981] N 324 (L) 
6.	Nick Kopia Kuman V Dawa Lucas Dekena (2013) N494
7.	Simon Puraituk –v- The State (2007) N3204 
8.	Richard Manui –v- ANZ Banking Group (PNG) Ltd (2008) N3405
9.	Wong v Lam (1980) N268, 

OVERSEAS CASES;

1.	Anchor Products Ltd –v- Hedges (1966) 115 CLR 493 
2.	Bolton -v- Stone (1951) A.C. 850,
3.	Cohen -v- Coca Cola Ltd [1967] 62. D.L.R (2nd) 285
4.	Donoghue v. Stevenson [ 1932] AC 562;
5.	Godfrey's Limited -v- Ryles	[1962] S.A.S.R. 33.
6.	Grant v Australian Knitting Mills [1936] AC 85
7.	Hart —v- Dominion Stores Ltd [1968] D.L.R (2d) 675.
8.	Holloway -v- McFeeters  (1956) 94 C.L.R 470
9.	Jones -v-Dunkel (1959) C.L.R 298 
10.	Licari -v-Markotos (1920) 180 N.Y. Supp. 278 
11.	Martin -v- Thorn Lighting Industries Pty Ltd [1978] W.A.R 10
12.	Overseas Tankship (UK)  Ltd -v- The Miller Steamships Co. Pty and Anor (The Wagon Mound 	No. 2) (l967) A.C. 617.
13.	Schellengerg -v- Tunnel Holdings Pty Ltd  (2000) CLR 121

Counsels:
Ms E. Suelip, for the Plaintiff
Mr L. Manua, for the first Defendant
Mr W. Stephen, for the second Defendant

DECISION

04th July, 2016
  
1.	DAVANI  J:  Before the Court for substantive hearing is Writ of Summons and Statement of Claim filed by Mirupasi Lawyers on 16th July, 2010 (the ‘Writ’).  Also before the Court is Defence filed by Second Defendant, Ela Motors on 15th September, 2010 and Defence filed by Rageau Manua & Kikira Lawyers for and on behalf of the First Defendant, on 14th October, 2011.

2.	The matter went to trial on the Plaintiff’s claim, as pleaded in the Writ. The claim is basically that the Defendants servants and agents were negligent in the manner in which they constructed a reserve fuel tank for a Hino truck, owned by the Plaintiff and which reserve fuel tank had snapped off its holding clamps, which caused substantial damage to the Hino truck. The Writ alleges that the first defendant was negligent in the manner in which he constructed the fuel tank. It alleges further that the Second Defendant also failed to properly inspect the Hino truck and the reserve fuel tank to ensure that it could withstand rough road conditions, especially PNG conditions.

3.	Because of this alleged negligence, the Plaintiff claims repair costs to the Hino truck and also for loss of business, together with interest at 8% percent and costs of the proceedings.

Background

4.	 The First Defendant is a company whose activities include metal fabrication, manufacturing steel, fabricating, manufacturing and supplying amongst other things, reserve fuel tanks for heavy equipment hauling trucks. The First Defendant is based in Lae, Morobe Province.

5.	All the parties are companies incorporated under the Companies Act 1997, and are capable of suing and being sued.
	
6.	The First Defendant is an independent contractor, who, from time to time was engaged by the Second Defendant, to carry out metal fabrication or welding according to the Second Defendant’s requirements and specifications.

7.	The First Defendant manufactured and installed a reserve fuel tank (‘Tank’) to the Plaintiff’s Hino truck, Registration No. CAT 750 (‘Hino’) in accordance with the Second Defendant’s specifications and requirements, prior to the Plaintiff purchasing the Hino from the Second Defendant.

8.	The First Defendant installed the Tank to the Hino.

9.	On or about April 2009, and prior to purchasing the Hino, the Plaintiff entered into a verbal agreement with Kenmore Limited trading as Steelhaus, to transport its goods to various destinations in the Highlands provinces of Papua New Guinea.

10.	On or about 30th October, 2009, the Plaintiff purchased the Hino from the Second Defendant’s branch in Lae.

11.	On or about 8th December, 2009, in Lae, whilst transporting materials, the Tank on the Hino snapped off its holding clamp.  The Tank sustained damage to and including the underside or undercarriage to the Hino.

12.	The Plaintiff claims to have paid K30, 126.00 for repairs to the Hino, done at the Second Defendant’s branch in Lae.

13.	Thereafter, Kenmore Ltd or Steelhaus, terminated its contract with the Plaintiff.

Issues for Trial

14.	 The issues for trial are taken from the Statement of Agreed and Disputed Facts and Legal Issues for trial (‘Statement’). These are;

(i)	whether the First Defendant was an agent or servant of the Second Defendant?

(ii)	whether the First Defendant owed a duty of care to the Plaintiff when manufacturing and fabricating the Tank?

(iii)	And if it did owe a duty of care, whether the First Defendant was negligent when fabricating and installing the Tank to the Hino?

(iv)	whether the First and Second Defendants are individually or together, liable for the damages, if any, caused to the Hino?

(v)	if the First Defendant was negligent, depending on the degree of negligence exhibited , whether the Second Defendant is also liable and ought to pay damages as a result of the First Defendant’s negligence?

(vi)	whether the Plaintiff is entitled to its claims for general damage, special damages, interest  and costs?

Liability

15.	In relation to liability, the Plaintiff claims that;

(i)	The First Defendant owes it a duty of care when manufacturing and fabricating the Tank;

(ii)	That First Defendant was negligent when manufacturing and fabricating the Tank;

(iii)	That the Second Defendant was also negligent when it failed to ensure that the Tank was firmly affixed and attached to the Hino’s underside or undercarriage;

(iv)	That the Second Defendant is liable for the damage caused to the Hino, as a result of the First Defendant’s negligence and vice versa; and

(v)	That, the First & Second Defendants are together, liable for all damage, caused to the Hino because of the respective and differing roles played by the both entities that then resulted in the Tank falling off and thereafter, the damage caused to or sustained by the undercarriage of the Hino.

Evidence

Plaintiff

16.	The Plaintiff called two (2) witnesses;

(i)	Paias Alopea – the Plaintiff’s Managing Director, and

(ii)	Martin Dengemba – The person who drove the Hino, the Plaintiff’s employed driver.  

First and Second Defendants

17.	The defendants called three witnesses;

(i)	The First Defendant called, Marcus Kupp.  His affidavit sworn on 6th August, 2012 and filed on 7th August, 2012, was tendered into Court and marked as an exhibit.

(ii)	The Second Defendant called two witnesses, David Lowe and Vincent Artango. Their affidavits were tendered into court and marked as exhibits.

(iii)	A photograph of the Hino was tendered into evidence and marked as an exhibit   for the Second Defendant.

Analysis of Evidence and the Law

18.	I set out below the evidence, given by all parties. Having done that, I will analyze the evidence together with law.  Thereafter, I will discuss the issues making findings as I go, in relation to the aspect of liability.

19.	In the event this Court finds in favor of the Plaintiff in relation to liability, I will decide whether to call counsel to hear them further on the aspect of damages or to proceed to a consideration of the evidence before me now, in relation to damages.

Relationship between the Plaintiff, the First Defendant and the Second Defendant

20.	Between the Plaintiff and the Second Defendant, the relationship is one of 	
contract where there must exist between two or more parties, the following elements:-

1.	 there must be an intention by the parties to create legal relations.
2. 	there must be an offer.
3. 	there must be an acceptance of the offer.
4.	 there must be consensus between the parties.
5.	 there must be consideration made/paid by one party to the other.

21.	If all the above elements are present when the contract is made, then all parties involved are to fulfil their respective obligations pursuant to that contract. When one party fails to comply, the others can rightfully sue for damages or specific performance of the balance of the contract, if damages are an inadequate remedy.

22. 	The relationship between the Plaintiff and the First Defendant is that the First Defendant is an agent of the Second Defendant and through that arrangement, the law on agency applies. Therefore, the Second Defendant is responsible for the actions or inactions of the First Defendant. Thus, if the First Defendant has failed to act or perform its duties, the Second defendant becomes vicariously liable to the First Defendant.
	
23. 	The Plaintiff is alleging that the Defendants owe it a duty of care. The Plaintiff also alleges negligence by the Defendants resulting in damages and loss of income caused to the Hino. It claims that as a result of the First Defendants poor workmanship on the Hino, that it purchased a product from the Second Defendant that had defects, not a product free of defects that the Second Defendant agreed to sell him, when it initially paid for the Hino.

24.	Essentially a formal contract of sale was entered into between the Plaintiff and the Second Defendant on or about 30th October 2009. The payment of the Hino was fully financed by the Plaintiff's financiers on 16th October, 2009, the sum of K436, 715.40. The Plaintiffs financer was First Investments Limited	.

Issues

25.	In summary, the main issues are threefold, even though the Statement filed sets out several. These are:

1. 	Whether the First Defendant owes or owed a duty of care to the Plaintiff when fabricating the reserve fuel tank and affixing it to the Hino. 

2.  	Whether the First Defendant was an agent or servant of the Second Defendant?

3.	If so, whether the Second Defendant was negligent when it failed to ensure that the First Defendant’s workmanship was done professionally and that the finished product can withstand the Highlands rough and rugged terrain.

Evidence 

I review the evidence of all witnesses below.

26.	 Plaintiff’s Witness – Paias Alopea; I only set out the evidence that is admissible. I say this because it is not disputed that Paias Alopea did not witness the accident.  His affidavit, sworn on 08th September, 2011 and filed on 9th September, 2011 was tendered into court and marked as exhibit ‘A’ for the Plaintiff.  
	
27.	At the date of accident, the Plaintiff was a properly registered trucking and restaurateur business. After receipt of a quotation and an invoice of K436, 715.40 from the Second Defendant, the Plaintiff purchased the Hino, with funding assistance from the First Investment Finance Limited, his financier.
	
28.	The Second Defendant engaged the First Defendant Niugini Steel Corporation Limited trading as NSC Freighters (Niugini Steel), to fabricate and install a reserve fuel tank to the Hino’s undercarriage.

29.	On 22nd October, 2009, Paias Alopea took delivery of the Hino from the Ela Motors Branch in Lae. Paias Alopea then entered into a Contract to deliver, with Steel Haus, to run 3 delivery trips to Tari at a total cost of K59, 400.00. It was a verbal contract.  Steel Haus paid for these trips.

30.	On 8th December, 2009, Paias Alopea received a telephone call from his employed driver Martin Dengemba, who informed him that the reserve fuel tank had snapped off its holding clamps and had caused damage to the Hino’s undercarriage.  Paias Alopea told his employee and Hino driver Martin Dengemba, to take the Hino to Ela Motors for an assessment of the damage done to the Hino and for repairs to be carried out to it. The Hino was brought in and damages assessed at K30, 126.10. Paias Alopea paid Second Defendant Ela Motors the sum owing to it of K30, 126.10, on 14 December, 2009.

31.	He deposes that because the Hino was not on the road and had not done any work for 3 weeks after the reserve fuel Tank collapsed, that Steel Haus then terminated the cartage contract on 8th December, 2009.

32.	Plaintiffs Witness – Martin Dengemba ; Martin Dengemba gave verbal evidence because the court struck out his affidavit sworn on 14th December,2011 and filed on 30th September, 2011. This was because the affidavit although written in English, was sworn by Martin Dengemba, could not speak English. It was bad in law and inadmissible. Martin Dengemba’s verbal evidence is summarized as follows;

*	He is the driver who drove the Hino and had driven it since its purchase from Ela Motors.
*	He had earlier driven the Hino, loaded with cargo from Lae to Tari and back to Lae, on a 14 day trip. 
*	He drove the Hino back to Lae to reload cargo, for a second trip to Tari.
*	For his second trip to the Highlands on 8 December 2009, he started driving at 11:30am and had to load cargo from eleven different locations in Lae. The witness claims that because he had to collect cargo from a number of locations in Lae, he had 	to drive at high speed. His last load was from the Atlas Steelyard at Taraka in Lae at 	about 5:00pm.
*	After loading cargo into the 20 foot container on the Hino, he drove out of the Atlas Steel yard and towards Bumayong to pick up his bag.
*	At the Unitech gate, the reserve fuel tank on the Hino snapped off as he negotiated the big pot holes. However he did not hear a sound or see the reserve fuel tank 	snap off as he was sitting quite high in the driver's seat in the driver’s cabin. 
*	Then he felt the steering lock. The Hino suddenly stopped. He got off the 
Hino to check the Hino’s undercarriage. That was when he saw that the reserve fuel tank had snapped off and had fallen under the Hino. He noted also that the undercarriage, especially the brake shoes, drum, dip housing and the main fuel tank were damaged.
The reserve fuel tank was lodged under the Hino on the surface of the potholed road. He noted that this was why the Hino stopped moving.
*	It was late in the afternoon. He saw some workers from Atlas Steel walking home.  He asked them to assist him remove the reserve fuel tank from under the Hino and if he could drive the Hino into their yard.  They agreed after which he drove the truck to the Atlas Steel yard in Taraka, Lae.
*	At the Atlas Steel yard, he saw that the plaintiffs other driver, Elias Suka was there.  	He learnt that it was Elias Suka who had informed Paias Alopea about the accident 	wherein Paias Alopea then instructed Elias Suka to take the Hino to Ela Motors the next day.
*	Martin Dengemba also said that Paias Alopea had instructed that Martin Dengemba not drive the truck to Ela Motors because he was angry with Martin Dengemba for causing the accident and damage done to the brand new Hino.

33.	First Defendants witness, Marcus Kup –Marcus Kup’s affidavit, sworn on 6th August, 2012 and filed on 07th August, 2012, was tendered into evidence and marked as exhibit ‘1’ for the First Defendant.

34.	Marcus Kup is an employee of the First Defendant and at the date of trial, had been in its employ for 14 years. He is a Civil Engineer by profession and had been in the metal fabrication industry for 14 years.  He is also the First Defendant’s manager.

35.	The First Defendant does all metal fabrication works requested by the Second Defendant for its customer's vehicles, particularly the manufacturing and installation of reserve fuel tanks.  When it does, it would state its specifications and details for the metal fabrication and installation work. The First Defendant would then provide a quotation to the Second Defendant for its approval, before it carries out any such work.

36. 	The First Defendant then issues an invoice for the work done after it is completed. The Second Defendant then attends at the First Defendant's yard to inspect the work. Upon being satisfied with the workmanship and safety, the Second Defendant would then pay the First Defendant's invoice. It would then deliver the new truck or truck with its completed specifications to the Second Defendant, who would deliver to its customer.

37. 	In this case, the Second Defendant brought the Hino to the First Defendant's yard and requested the First Defendant to carry out metal fabrication work to build or manufacture a reserve fuel tank and to install it to the Hino.

38.	The Second Defendant gave the First Defendant its specifications in relation to the type of reserve fuel tank that it required. The First Defendant accepted the request, then manufactured and installed the reserve fuel tank to the Hino, done in accordance with the Second Defendant's specifications. 	Thereafter, the First Defendant invoiced the Second Defendant. The Second Defendant's Vincent Artango then inspected the Hino truck and the reserve fuel tank, fittings, workmanship, professionalism and safety and was satisfied with the work. Thereafter, the Second Defendant paid the First Defendant's invoice and took delivery of the Hino which it later delivered to the Plaintiff.

39. 	The First Defendant has been providing this service to the Second Defendant and other clients for many years. This claim is the first of its kind made against it.

40.	The Second Defendant called 2 witnesses;

	i.	David Lowe, its National Sales Manager.
	ii.	Vincent Artango , its Trucks Workshop Manager, Lae Branch 

41.	Second Defendant’s witnesses , David Lowe and Vincent Artango  – Their affidavits, both sworn on 15th August, 2012 and filed on 16th August, 2012 were tendered into evidence and marked exhibit ‘1’ and ‘2’ respectively, for the Second Defendant.

42. 	Second Defendants witness - David Lowe ; He is based at the Second Defendant's Head Office in Port Moresby. As at the date of trial, he had been employed by the Second Defendant for 3 years. His expertise is as a diesel mechanic and technical specialist in Mercedes Benz trucks.

43.    He was informed of the accident when Paias Alopea's driver drove the Hino to the Second Defendant's yard at Lae and told him that the Hino’s reserve fuel tank had snapped off and that there was also  damage to the under carriage of the Hino. Paias Alopea’s driver asked that repairs be done to the Hino.

44.	David Lowe then instructed Vincent Artango to inspect and carry out repair work to the Hino and to assess if such damage are covered by warranty, to then do the repairs for free, under the warranty.

45.	David Lowe said that the First Defendant were informed of the accident after which Marcus Kupp attended at the Second Defendant's workshop and also inspected the damage to the Hino.

46.	He said that the damage was caused by the reserve fuel tank which is not part of factory warranty and therefore the Plaintiff must pay for the repair costs. An invoice for the repair work for K30, 126.00 was issued to the Plaintiff and the Plaintiff later paid the same and took delivery of the Hino after payments. 

47.	From his experience as an heavy equipment mechanic in the motoring industry, and his assessment of the damage caused to the Hino’s undercarriage and reserve fuel tank, he said that the Hino was driven at high speed and may have fallen into a pothole which then caused the reserve fuel tank to hit the surface of the road or ground and on impact, it (reserve fuel tank) snapped off its holding clamps.

48. 	He said that the accident with the Hino’s reserve fuel tank was the first of its kind in his 3 years of employment with the Second Defendant i.e where a reserve fuel tank had snapped off. 

49.	He said further that in his experience, the reserve fuel tanks that are manufactured and installed on the Second Defendant's trucks by the First Defendant are always secure and permanently affixed and can only be snapped off on impact or collision.

50.	Second Defendant’s witness Vincent Artango; He has more than 30 years experience in the motoring industry as a mechanic and tradesman. At the date of trial, he had been in the Second Defendant’s employ as its Trucks Workshop Manager for about 8 years.

51.	He said that on 11th December , 2009, the Plaintiff's 'representatives brought the Hino into the Second Defendant's workshop with instructions for them to check and assess 	the damage caused to the Hino as a result of it 	driving over the Reserve Fuel Tank when it came off.

52. 	He had initially inspected the damage done to the Hino, then later informed Marcus Kupp, and they both conducted a joint inspection of the damage done to the Hino reserve fuel tank and its undercarriage.

53.	 From the inspection, Marcus Kupp told him that the reserve fuel tank 'channels snapped above 90 degree bend' where the tank sits. Both agreed that the top part of 	the channel where it was bolted to the chassis was still attached to the chassis.  They agreed that the Hino must have hit a pothole or potholes at speed and snapped the channels and then drove over the tank itself, causing the damage to the undercarriage.

54. 	Vincent Artango also said that gear shifting to gear 4 or 5 or even 6 are high range gears so the vehicle would have been travelling at about 60 to 70 km per hour. He said further that if the Hino is on 'gear 4 	button speed’, the Hino would have definitely been travelling at a high speed. The same would apply 	to gear 5 or gear 6 which are high range gears.  If the driver was travelling at gear 5, then that also indicates that the Hino was travelling at high speed.

55. 	He stated further that based on his experience, he believed that the Plaintiff’s employed driver was speeding on a rough and uneven surface, given the type of damage sustained under the Hino. His believes that whilst speeding, the Hino‘s back tyres or wheels  fell into a pothole and on impact the reserve fuel tank snapped off and sat under the Hino as it was moving, causing extensive damage to the under carriage including the brake drum, axles and differential wheel housing. If the Hino was not speeding and the reserve fuel tank snapped and fell, then the reserve fuel tank would not have rolled at a speed and caused such damage to the under carriage of the Hino. It would have blocked the tyres and the driver would have felt it and stopped the Hino.
	
56. 	He also said that the Plaintiff did not accept the Second Defendant's offer to fix the reserve fuel tank for free. 

57. 	After being shown 2 photographs of a similar brand and type of a truck similar to the Hino, Vincent Artango explained that the reserve fuel tank was attached and affixed to the back of the Hino’s factory tank and back wheels. That if the back wheels dropped into a pothole, the reserve fuel tank would also go down towards the surface of the ground, with force. Both photographs were tendered into evidence as Exhibits "C" and "D" for the Second Defendant.

58.	Vincent Artango’s evidence, which is undisputed, is that he has 30 years experience in the motoring industry as a mechanic and tradesman. That as at the date of the trial, he had been employed as the Second Defendants Truck Workshop Manager for about 8 years.

59.	In relation to the Second Defendant’s duty of care to the Plaintiff, Vincent Artango was asked by the Plaintiffs representative to check the Hino after the accident.  So, together with Marcus Kupp, of the First Defendant, they both conducted a thorough inspection of the damaged Hino. 

60.	In cross – examination, Vincent Artongo said prior to the accident, he inspected the Hino before it was delivered to the First Defendant. He also said that prior to the product being released to its customer, as with the reserve fuel tank, that it must go through quality checks.

61.	According to Vincent Artango, these quality checks were done.  And I must say that this evidence has not been discredited or disputed by evidence from the Plaintiff.  I say this because even the Plaintiff’s witness, Paias Alopea, said that he did inspect the Hino, and because he was satisfied with the First Defendants workmanship and craftsmanship, that he took delivery of the Hino.

The Law 

62.	Before discussing the law, it is imperative that this court review the Plaintiffs Statement of claim and the Defences filed by all Defendants to then be cognizant of the claims being pursued by the Plaintiff, to be tested against the Defendants defence. It must always be borne in mind that it is only the claims and the Defences that are pleaded, that will be relied on by this court when making its findings.  (Simon Puraituk -v- The State (2007) N3204; Kora Gene -v- MVIT [1995] PNGLR 344;  Kepas Waima -v- MVIT[1992] PNGLR 254).

Writ of Summons and Statement of Claim

63.	The Writ pleads the First Defendant’s alleged negligence, at paragraphs 11 (1-7);

i,	That it failed to fabricate a reserve fuel tank for the Hino, that could withstand the very rough PNG road conditions;

ii.	That it failed to properly attach the reserve fuel tank to the Hino, by failing to firmly and securely bolt or fasten it to the Hino so that it would not easily snap off when travelling the very rough PNG road conditions;

iii.	That the First Defendant did not take reasonable steps to stop the holding clamps welded to the reserve fuel tank attached to the Hino, from falling off;

iv.	The Plaintiff relies on the principles of res ipsa loquitar;

64.	The Writ pleads the Second Defendants alleged negligence as;

i.	The Second Defendant failed to inspect the Hino to ensure the First Defendants 	workmanship was up to standard; and 

ii.	That it failed to inspect the Hino to ensure the reserve fuel tank was securely and 	firmly tightened and fabricated onto its holding clamps and that it can withstand 	PNG’s very rough conditions; and 

iii.	That it failed to ascertain from the First Defendant whether the work done by the First Defendant was up to standard; and 

iv.	That it sold the Plaintiff the Hino, when its reserve fuel tank was not properly fitted, in other words, it sold the Plaintiff a defective vehicle; and 

First Defendants Defence 

65.	The First Defendant denies the Plaintiff’s claim in its entirety. It pleads in its Defence, the following;

i.	That it manufactured and affixed to the Hino, a reserve fuel tank that met the 	specifications and standards required by the Second Defendant; and 

ii.	That at the completion of the works done to the reserve fuel tank, the Second Defendant inspected the “Truck” (see par.8(3) of the First Defendants Defence) to 	ensure it suited it’s specifications after which the “Truck” was released to the Second 	Defendant; and 

iii.	The First Defendant does not owe a duty of care to the Plaintiff nor has it breached any duty of care to the Plaintiff because the Plaintiff is “a total stranger” (see par.8. (4) of First Defendants Defence ) to it; and 

iv.	In the further alternative, that the First Defendant does not know the Plaintiff and 	therefore, did not have a contractual relationship with the Plaintiff or, a duty based on 	the common law duty of care; and 

v.	That the Plaintiff is not entitled to the relief’s sought because it failed to obtain insurance cover over its business and or operations.

Second Defendants Defence 

66.	The Second Defendant does not deny that the Plaintiff purchased the Hino on 30th October, 2009.

67.	It pleads also that the First Defendant was engaged as an independent contractor.  

68.	The Second Defendant admits and agrees that the Hino’s reserve fuel tank did snap of its holding clamp and did cause substantial damage to the Hino.  However, it pleads in its Defence that;

(i)	the Second Defendant carried out a thorough inspection of the Hino prior to delivery of the Hino to the Plaintiff and that no defects were found in it;

(ii)	That the Second Defendant did inspect the Hino to ensure that the First Defendant’s 	workmanship was up to standard;

(iii)	That the Second Defendant did properly inspect the Hino to ensure that the reserve fuel tank was firmly tightened to its holding clamps;

(iv)	That its employee did inspect the Hino to ensure that the reserve fuel tank would withstand PNG’s rough road conditions including not snapping or breaking off whilst under pressure;

(v)	That the principle of Res Ipsa Loquitur, does not apply.

69.	The Second Defendant pleads further that;

(vi)	After taking delivery of the Hino on 30th October, 2009, that after the accident on 11th 	December, 2009 , when the mileage on the Hino read that the Hino had done 6688 	kilometres, that the Second Defendant repaired the Hino, at no cost to the Plaintiff, more particularly the fabrication and manufacture of a reserve fuel tank.

(vii)	That the Plaintiff is ‘stopped’ from alleging prior 	poor workmanship, quality of the repair work done and payment made for repairs because of the Plaintiff’s conduct in accepting the repair work done, paying for the repairs, taking delivery of the Hino and using it.

70.	The Second Defendant also pleads contributory negligence in the alternative, because;

(viii)	 The Hino was travelling at a very high speed, despite the heavy load it 		was carrying and despite the bad road conditions; and 

(ix)	That the Plaintiff’s employed driver did not take reasonable steps to avoid the accident.

(x)	The Second Defendant also does not deny that the Plaintiff paid K30, 126.00 for repair work done to the Hino. It also does not know of the contract the Plaintiff purportedly had with Kenmore Limited.

(xi)	Finally, it denies all other allegations pleaded in the statement of claim and pleads that it is not liable to the Plaintiff for any of the alleged losses or damage that the Plaintiff claims to have suffered.

Discussion of the issues

71.	I will address the issues, set out below.

Duty of Care

First Issue:	Is the First Defendant a servant or agent of the Second Defendant?

Second Issue: And if so, whether the First Defendant owed the Plaintiff a duty of care when constructing the Hino’s reserve fuel tank?

72.	In relation to a defendant’s duty of care to a plaintiff, the courts in PNG and the Common Law have discussed it over the years. I set out below some notable cases.

73.	In Kolta Development Pty Ltd v. PNG Defence Force [1971] PNGLR 585 per Salika J, a claim based on negligence, his Honour Salika.J quoted Lord Atkins  statement in  Donoghue v. Stevenson [ 1932] AC 562 at pg 580 ;

"Lord Atkins' famous statement in Donoghue v Stevenson [1932] AC 562 (at page 580) is now accepted as establishing the principle on the duty of care in the law of negligence. Lord Atkins said:

	"The rule that you are to love your neighbour becomes in law, you must not injure your 	neighbour; and the lawyers question, 'Who is my neighbour' receives a restricted reply. You must take reasonable cure to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons, who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question."

Lord Wright, four years later in Grant v Australian Knitting Mills [1936] AC 85 said:
“All that is necessary as a step to establish the tort of actionable negligence is to define 	the precise relationship from which the duty to take care is to be deduced. It is, however, essential in English law that the duty should be established; the mere fact that a man is injured by another act gives in itself no cause of action; if the act is deliberate, the party 	injured will have no claim in law even though the injury is intentional, so long as the other 	party is merely exercising a legal right; if the act involves lack of due care, again no cause 	of actionable negligence will arise unless the duty to be careful exists."

In Wong v Lam (1980) N268, Narokobi AJ said this in relation to negligence:
	
	"As far as negligence goes, the law is that the issue can be resolved by reference to the question of duty of care, the Defendants can be said to owe to the Plaintiff and if  that duty was breached, resulting in the damage or loss sustained by the Plaintiff."

74.	In Maxine George -v- Burns Philip (NG) [1981] N 324 (L) per Pratt J, a case on  manufacturers liability and occupiers liability, where his Honour discussed the duty of care and foreseeability, invitees to a self-service store and a safety system. 

75.	This case concerns an explosion of soft drinks in a shop which caused injury to a shopper.  The issue arose as to whether the occupier or the storekeeper and the manufacturer of the soft drinks were liable. The Court held that they were liable and stated its reasoning as follows:-

	“The defendant company is both manufacturer of the product and distributor (though not a 	manufacturer of the container). As such it carries a duty of care not only to persons who purchased the item but to the other invitees in the store who are legitimately going about their 	business of selecting and waiting to pay for such goods that the store displays. "

	The distributor has a duty to ensure not only that his product is safe but that the container itself is fit for the purpose (See Salmond's 15th Edition p316 and cases referred to therein also ‘Charlesworth on Negligence' 5th Edition, paragraph 633). In the present case, whether one treats the Defendant as a manufacturer of a product which was dispatched in a faulty container or as occupier of premises who was responsible for a container being on display for sale through the checkout counter does not make any real difference.

	The incident was certainly not a common one but that of itself does not detract from the need to 	take reasonable care (See Salmond’s 15th Edition, p.229) Nor does it require the Plaintiff to pinpoint exactly where the defect occurred or should have been detected. (Grant -v- Australian Knitting Mill Limited [1936] AC 85 at 101). In the present case, the Plaintiffs task 	has been rendered somewhat easier because of the dual role played by the Defendant 	Company."

76.	The defendant in the above case filed an appeal to the Supreme Court who by majority, upheld the decision of the National Court. In this Appeal, Burns Philip (NG) Ltd -v- Maxine George No.(2) [1983] SC 259.  Andrew J, Bredmeyer J and McDermott J, held that the manufacturer was liable and likewise the retailer of the product who displayed them and which exploded under pressure.

77.	The Supreme Court applied the English decision of Donoghue -v- Stevenson (supra) at p.599 where Lord Atkins said:-

	"A manufacturer of products which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination and with the knowledge that the absence of reasonable care and preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care."

78.	The Supreme Court also referred to and analysed various other English, American, Canadian and Australian cases in this judgement which are worth re-stating in this case as the discussion of the principles of law is relevant and applicable to this matter.

79.	In Grant -v- Australian Knitting Mill Ltd and Others (supra) at p. 106, the Court said the following;-

“The decision in Donoghue's case did not depend on the bottle being stoppered and sealed the essential point in this regard was that the article should reach the consumer or user, subject to the same defect as it had when it left the manufacturer"
	(my emphasis)

80.	The Supreme Court also referred to a Canadian case relating to exploding bottles, Cohen -v- Coca Cola Ltd [1967] 62. D.L.R (2nd) 285 at p.288. The Court said; 

	"The bottler of carbonated beverages owes a duty to furnish containers of sufficient strength to withstand normal distribution and consumer handling. Little is to be granted by discussing the numerous decided cases involving the explosion of bottles containing such beverages. Each 	case turns upon whether the evidence in that particular case excludes any probable cause of injury except the permissible inference of the Defendant's negligence. "

	'This was followed in Hart -v- Dominion Stores Ltd [1968] D.L.R (2d) 675. Both 	cases 	concerned apparent spontaneous explosions. The major difference with the Canadian 	litigation and the present was the quality of the expert evidence called concerning the types of 	bottles used, and the filling and inspection processes."

81.	In Martin -v- Thorn Lighting Industries Pty Ltd [1978] W.A.R 10 a case where  damage was caused when an incorrectly labelled light bulb exploded when placed in contact with greater power than its capacity could take. The Court considered there were two lines of inquiry relevant to the issue of the manufacturer's duty. On the one hand, if the Court accepted that the system of the manufacturer was in fact foolproof, then the manufacturer must have answered the case against him for it would be impossible for the relevant article to be defective and thus harm the Plaintiff. The Plaintiff would then have to show that the defect was caused by some factor outside the manufacturing process. On the other hand, if the system was not foolproof but was only most 'up-to date possible' - (Salmond on Torts 16th ed. P.317) or 'as near perfect as human ingenuity can make it' (Clerk and Lindsell on Torts 12th ed.par.769), then the manufacturers may be guilty of negligence. The Court concluded at p. 12.

	'If the evidence established that the system employed by the Defendant was so efficient 	that it was highly unlikely or at least not likely that the defective article could or would 	emerge from the Defendant's factory, once the evidence of the Plaintiff regarding the 	defect is accepted, then the manufacturer will be liable unless he can show that he was 	not negligent - a task which calls into question not only his care in devising a safe system of 	manufacturer but also, and more importantly, his employees' care in operating that system."
(my emphasis)

82.	In relation to the duty of care, the Plaintiff submits that the second defendant has the responsibility to ensure that the product it sells to its customers are in the form or standard as required by its customers.  Thus, it owed the Plaintiff a duty of care, when it sold the Hino to the Plaintiff.  The Plaintiff submits that when it purchased the Hino and requested that the reserve fuel bank be installed, that the Plaintiff relied solely on the Second Defendant’s expertise to deliver him the Hino truck’s reserve fuel tank he required for his business.

83.	The Plaintiff submits further that the Defendants are negligent because even though they were entrusted with a task which they were to have professionally done, that for the First Defendant, it did not conduct an independent check to ensure that the fabrication work on the reserve fuel tank, was properly done, as required by the Plaintiff, and therefore, was negligent.

84.	The Plaintiff submits finally, that the First defendant is the Second Defendant’s agent, and is therefore, vicariously liable for the actions or inactions of the First Defendant.
	
85.	In relation to the both defendants duty of care, the Plaintiff submits that the First Defendant’s duty of care is to ensure that it manufactures a reserve fuel tank that can travel on the rough and rugged terrain of the highlands of Papua New Guinea and anywhere else in Papua New Guinea.  That the First Defendants duty of care extends to ensuring that it manufactures a reserve fuel tank that can withstand the turbulent and excessive pressure to be had or experienced by the Hino, whilst travelling over the rough and rugged terrain of the Highlands of Papua New Guinea and anywhere else in Papua New Guinea.  And to do that, the Plaintiff submits that the First Defendant must ensure that after installation, the reserve fuel tank does not explode or break or dislodge or snap and subsequently, cause damage to the Hino’s undercarriage. 

86.    And because of all Defendants failure to exercise a duty of care, that they are negligent and has resulted in damage to the Hino, and subsequently, loss of income.  

87.	What is the courts role then, in a situation such as this, where the Plaintiff is relying on the Defendants evidence as the standard on which to base its assessment of the degree of professionalism and expertise to be exhibited or used as a measuring stick before a truck is released? The only helpful submission I have is from Mr Manua who referred me to the following case authorities and where he submits that the courts role then is to draw an inference based on common experience.  In my view I accept that submission because in a case such as this where the Plaintiff is relying very much on independent technical evidence to support its claims of unprofessionalism and negligence, that there must be a yardstick or measuring stick that the Plaintiff ought to use, to establish the standard that must be achieved by, as in this case, engineers and mechanics, to then safely conclude that a vehicle, or as in this case, a Hino Truck, is ready to take on PNG’s rough terrain.  Mr Manua referred me to 
 Holloway -v- McFeeters  (1956) 94 C.L.R 470 which was adopted and applied in Jones -v-Dunkel (1959) C.L.R 298 (supra) followed in Maxine George -v- Burns Philip (supra) where it was held that an inference can be drawn from common experience, the more probable inference can be drawn from the circumstances that appear by evidence or admission left unexplained should the injury arise from the Defendants negligence. By more probable is meant no more than upon a balance of probability, such an inference might reasonably be considered to have some greater degree of likelihood.

88.	The First Defendants witness Mr Marcus Kupp , a Civil Engineer by profession , gave evidence that over the years , it had always been requested by the Second Defendant , to manufacture and install reserve fuel tanks to the Second Defendants trucks. That thereafter, there has never been any complaints about the quality, workmanship and installation of these reserve fuel tanks and that the Plaintiffs complaint is the first of its kind.

89.	Mr Kupp’s evidence is clear that usually the Second Defendant requests that the First Defendant to carry out metal fabrication for it.  It gives the specification for the metal fabrication work after which the First Defendant carries out the work.

90.	The Second Defendant then attends at the First Defendant’s premises at the completion of works, to inspect the work done and ensure that it is carried out according to the Second Defendant’s specifications.  Upon being satisfied, the Second Defendant pays the First Defendant’s invoice, then takes delivery of the product.  The undisputed evidence is that this is what occurred with the Hino and the Reserve Fuel Tank. Upon being satisfied with the work done and specifications, met, the Second Defendant’s Vincent Artango, took delivery of the Hino to which the Reserve Fuel Tank was installed.  He took delivery of the Hino truck after he inspected the Hino and was satisfied with the workmanship and safety of the fittings to the Reserve Fuel Tank.

91.	Should the Plaintiff have secured the services of an independent assessor or engineer, to review the First Defendant’s standard of work and workmanship as submitted by the Plaintiff? 

92.	In my view, yes. I say this because in a normal day to day operation of a workshop, the workshop management rely entirely on the skills of its employed mechanics and engineers to rectify and repair mechanical faults. Indeed, a workshop has never had to bring in independent expertise, unless the situation called for it. One obvious reason being that it is the independent experts expenses that must be paid, amongst others. And I cannot imagine how, in an ordinary day to day workshop, an independent expert has to be called in whenever a vehicle is repaired. That is an unsavoury, unfavourable and an unnecessarily expensive situation indeed. Unless the customer asks that this be done. Then it is a matter between him and the workshop management.

93.	Additionally, the evidence is clear that the Defendants had devised a safe system at work and that its employees took great care in operating that system (see Martin v Thorn Lighting Industries Pty Ltd (supra) 

94.	And that leaves this Court with Marcus Kupp’s assessment of the damages, which is summarised in his report to Vincent Artango of the First Defendant, which is annexure “A” to Marcus Kupp’s affidavit, sworn on 6th August, 2012 and filed on the 7th August, 2012, marked exhibit “1” for the First Defendant. This report was prepared immediately after Vincent Artango informed him of the accident and the damage done to the Hino.

95.	Mr Kupp stated in clear terms that the reserve fuel tanks support steel channels had snapped above the 90 degree bend where the tank sits. The report stated further that the top part of the channel where it was bolted to the truck chassis was still attached to the chassis.  He stated that in his professional opinion, the Hino must have hit a pot hole travelling “at speed” after which the channels snapped, which then resulted in the reserve fuel tank hanging and being dragged along the road, causing damage to the Hino’s undercarriage and which eventually forced the Hino to stop because the reversed tank was stuck to the Hino’s undercarriage and the road. 

96.	In his report also, Mr Kupp stated that the First Defendant had fabricated a new reserve fuel tank, at no cost to the Plaintiff.

97.	He confirmed in cross examination that the quality checks involved are that after fabrication work is done, a representative from the Second Defendant, signs the delivery docket then takes delivery of the truck, after the normal inspections have been done.

98.	He also said in cross examination that the reserve fuel tank is usually about one and a half meters from the ground, after installation.

99.	Evidence given by David Lowe, witness for the Second Defendant is also crucial. His evidence is set out above.

100.    In relation to the element of the Defendants duty of care, a witness who is an expert in his field, brings evidence that is vital to a case. Unless that evidence is challenged by another expert in that field, it remains good evidence. Mr Lowe has that technical expertise in that he is a diesel mechanic and technical specialist for Mercedes Benz trucks. And he is also the National Sales Manager. His evidence has not been challenged by an expert brought by the Plaintiff. (see Martin v Thorn Lighting Industries Pty Ltd (supra)).
	
101.	David Lowe, in cross examination said he became aware of the damage to the Hino when he received a letter from the Plaintiff dated 30th  December, 2009 where the Plaintiff complained about the damage done to the Hino and the First Defendants poor workmanship. 

102.	David Lowe emphasized that Ela Motors representative was very satisfied with the work done by the First Defendant, before the Plaintiff took delivery of the Hino. 

103.	As far as witness David Lowe is concerned, the requisite checks were done by the First and Second Defendant’s representatives.  There is no evidence from the Plaintiff that shows that David Lowe failed in his responsibilities as the Second Defendant’s National Sales Manager and a diesel mechanic and technical specialist. There is also no evidence from the Plaintiff to show that David Lowe failed to ensure that there were workmen at the Second Defendants workshop with the specialized knowledge to conduct the necessary mandatory checks before the Hino was released. In fact, quite the opposite. The Second Defendant brought evidence that the Plaintiff has not refuted.

104.	 In my view, the Second Defendant’s duty of care to the Plaintiff, including its Nationals Sales Manager, has not been breached.

Agency

105.	As to the issue of whether the First Defendant is a servant or agent of the Second Defendant, the undisputed evidence is that the Second Defendant engaged the First Defendant to construct and fabricate the reserve fuel tank and to attach or affix it to the Hino.

106.	And after constructing the Reserve Fuel Tank, the general agreement and practise is that the First Defendant and Second Defendant would contact its clients, in this case the Plaintiff, to take delivery of the truck.

107.	So, it clearly is not disputed that the Second Defendant is an agent of the First Defendant.

108.	Although the Plaintiff submits that the Defendants were negligent in ensuring that their workmanship was checked independently prior to delivery of the Hino to the Plaintiff, this is where I would have wanted to see evidence from the Plaintiff to show that in the welding, fabrication and engineering business or industry, thats where the building or manufacturing of car parts are involved, that the manufacturer must bring in an independent expert to review the final product. I think this would have been achieved during the discovery process, when either party, during the exchange of interlocutory or specific discovery, will the Plaintiff raise such a question. And if such a body does exist in Papua New Guinea, then the Defendants must make that known.  That is the whole purpose of the discovery process, to ask those questions which will provide material which, under normal circumstances, a defendant would not divulge. 

109.	Then the Court must ascertain the degree of duty of care, after it has had regard to the circumstances of that particular case. (See Marshall Lagoon Investment Company Pty Ltd –v- Ding Company Ltd (2008) N3650). And a distinction can be drawn between this case and Richard Manui –v- ANZ Banking Group (PNG) Ltd (2008) N3405.  In Richard Manui, the court held that the defendant bankers had a duty to bring in an expert to check the two types of signatures they have before them because they had a duty of care to the plaintiff to have these signatures verified.  The court held that because the bankers did not do that, which included protecting the account against fraud, they breached their duty of care to the plaintiff.

110.	In this case, the Defendants, represented by an engineer and a mechanic, using their accumulated expertise of over 30 years, checked the Reserve Fuel Tank, confirmed that it was properly installed and fabricated, then released it.

111.	In Marshall Lagoon Investments Company Pty Ltd (supra), the court said that the person in charge of the premises is not strictly liable. And for him to be liable, it must be established that there has been a breach of the particular degree of the duty of care required as a result of the negligent or careless performance of that duty by him.

112.	Again, as was held in Marshall Lagoon Investments Company Pty Ltd (supra), irrespective of the degree of duty of care that is owed, the Plaintiff’s argument that the defendants are strictly liable for the loss that occurred, and however that loss occurred, cannot be sustained.  And that is only because the degree of duty of care must be determined after regard is had to the circumstances of the particular case.

113.	And the circumstances of this particular case, based on past, accepted practise, is for the managers and/or engineers and/or mechanics of both defendants together with the customer, will check the manufactured and fabricated equipment and once all parties are satisfied with the quality of the product after conducting the necessary checks, that the fabricated and/or manufactured equipment, will then be released.

 Res Ipsa Loquitur.

114.	This then takes me to the common law principle of Res Ipsa Loquitur which the Plaintiff relies on as pleaded in its statement of claim.

115.	Apart from the known and obvious negligent act or omission, liability can be found on strict liability on the basis of the principle Res Ipsa Loquitur in negligence which raises two (2) inferences, namely,

(1) 	That the accident was caused by a breach by somebody of a duty of care to
	the Plaintiff; and

(2) 	That the defendants were that somebody.  See Godfrey's Limited -v- Ryles
[1962] S.A.S.R. 33. This is a case concerning a kerosene refrigerator catching fire sometime after it was repaired, causing serious damage. The court said the following at p. 50;

	'The defendant company's obligations arose from the law of torts. In supplying the article, it 	was obliged to abstain from putting into the plaintiffs hands something with a dangerous 	defect which it should have discovered on reasonable examination. In effecting repairs it was obliged to exercise proper care and skill. But these obligations 	fall short of an indemnity to the plaintiff against any damages he might suffer by reason of the article's condition. The fact that it caught fire and exploded may indicate that it was defective without indicating that the defect was attributable to negligence on the part of the defendant. "(My emphasis)

116.	Indeed, the defect was not attributable to negligence by the Defendants. The Plaintiff has a duty to prove the claim for negligence by showing that there is a duty on the Defendants to exercise reasonable care not to injure the Plaintiff. The Defendants in this case performed that duty.

117.	The American case where a bottle exploded in the Plaintiffs hand, Licari -v-Markotos (1920) 180 N.Y. Supp. 278 at p.280 was quoted with approval.

	'The plaintiff in failing to affirmatively show the existence of some defect in the preparation, 	construction or condition of this article which the defendant knew or should, in the exercise of reasonable care, have known, would render the bottle 'not merely possibly, but would probably, dangerous' ........has failed in her proof.”

118.	In Holloway v- McFeeters (1956) 94 C.L.R. 470 at p.488-481 in regards to the issue of common experience or same business of the Defendant in manufacturing and supplying of the products over the years without any problem, the Court said the following:-

	"All that is necessary is that according to the course of common experience, the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of 	probability such an inference might 	reasonably be considered to have some greater degree of likelihood."

Dixon C.J quoted in the above case in Jones -v- Dunkel (1959  C.L.R. 298, a case
involving a collision between two trucks in which the plaintiff, a driver of one, was
killed and the driver of the other was not killed. The Court said at p.304:-

“In an action of negligence for death or personal injury, the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind. It is true 'that you need only show circumstances raising a more probable inference in favour of what is alleged. But they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture. "

119.	In regards to the issue of foreseeability, the Court said in the case Overseas Tankship (UK)  Ltd -v- The Miller Steamships Co. Pty and Anor (The Wagon Mound No.( 2) (l967) A.C. 617. to sheet home to the defendant, as occupier, liability through foreseeability of the dangerous propensities of carbonated beverages. The Court considered the correct approach as stated in the following statement at p.642:

	“In their Lordship's judgement Bolton -v- Stone (1951) A.C. 850, did not alter the general 	principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognize and 	give effect to the qualification that is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it’s right to neglect it."
	
And at pp.643 and 644:

	'If a real risk is one which would occur to the mind of a reasonable man in the position of the 	defendant's servant and which he would not brush aside as far-fetched, and if the criterion is to be what the reasonable man would have done in the circumstances, then surely he would not 	neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, 	and required no expense."

120.	As Mason J., (Stephen and Aicken JJ agreeing) said of this decision in the Wyong case (supra) at p.285.

	'In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. I am of course referring to foreseeability in the context of breach of duty, the contempt of foreseeability in connection with the existence of the duty of care involving a more generalized enquiry.

	A risk of injury which is quite unlikely to occur, such as that which happened in Bolton -v-Stone 	(supra), ante, may, nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ”foreseeable" we are not making any statements as to the probability 	or improbability of its occurrence, save that we are implicitly asserting that the risk is not 	one that is far-fetched or fanciful. Although it is 	true to say that in many cases the greater the degree of probability of the occurrence of the risk more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. "

121.	In the case  Marshall Lagoon Investment Company Pty Ltd -v- Ding Company (supra)), the court, in relation to  Res Ipsa Loquitur, sets out three (3) elements that are required to be established by the Plaintiff. It said;

(1) 	There is an 'absence of explanation' of the occurrence that caused the damage;
(2) 	The occurrence was of a kind that does not ordinarily occur without negligence; and
(3) 	Whatever caused the occurrence was under the control of the defendant. 

122.	The court also said the following;-

"Res ipsa loquitur is the process of inferential reasoning from which negligence may he inferred rather than being a distinct rule of law. The High Court of Australia in Anchor Products Ltd –v- Hedges (1966) 115 CLR 493 and Schellengerg -v- Tunnel Holdings Pty Ltd  (2000) CLR 121 noted that the burden of proof stays with the plaintiff. It is necessary for the Court to determine whether the burden of proof has been discharged even if the 3 elements of the principle are established. In Anchor Products (supra), Windeyer at p.50 said:-

"To say that an act speaks for itself does not mean that if no evidence is given of the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks 	of negligence, but how clearly and convincingly it speaks depends upon its circumstances. 	It is evidence from which an inference of negligence may be drawn, it does not mean that this inference must necessarily be drawn, although in some cases 	it may be evidence so cogent and compelling that any other conclusion would be perverse. As Du Parcq L.J. pointed out in Easson -v- London and North Eastern Railway Co. to discharge the burden of proving his case depends upon the effect of the whole of the evidence given in the case, including such inference as may be drawn from the happening of the accident, if its cause remains unexplained."

123.	Indeed, the burden of proof remains with the plaintiff. It is now for this court to determine whether the burden of proof has been discharged even if the 3 elements of the principle are established. (see Marshall Lagoon Investments Company Pty Ltd (supra)). 

124.	Under the principle of Res Ipsa Loquitur, negligence may be inferred, but the burden of proof stays with the plaintiff. (see above) And as to whether the Plaintiff has discharged this burden of proving his case, depends upon the whole of the evidence given in this case. 

125.	Which then takes me back to the Plaintiff’s evidence.

126.	The Plaintiffs whole evidence in relation to establishing liability and whether the Defendants are liable, is that of Paias Alopea and Martin Dengemba. 

127.	Martin Dengemba's evidence that the fuel tank snapped without any fault on his part is clearly unsubstantiated by any other evidence because of the undisputed fact that he was the driver of the Hino when the accident occurred; that he was driving at about 60 kilometres per hour or more, over very deep pot holed road and finally, that he had already made 14 trips, to Tari, with no mishap.

128.	Martin Dengemba also contradicted himself in evidence on numerous occasions, that it is indeed difficult for this court to place any weight or reliance on his evidence.  These inconsistencies and contradictions are;

(1)	 He said Elias Suka was at the Steelhaus when the accident occurred.  However, he later contradicted himself by saying that Elias Suka was walking from Taraka towards 	the road and when he saw the accident that he then called Paias Alopea at 5.00pm and 	informed him of the accident.

(2) 	He said that he was rushing to load cargo and was driving the Hino at a high speed to 11 different locations in Lae. In cross examination he said that it was 11 different locations within the Steelhaus yard.

(3)	 During cross examination, he said he was in the Hino truck with all the windows up and because of that, he did not hear any sound or noise. It was only when the steering wheel 	suddenly locked and when the truck just stopped and the Hino stopped, that he got off the Hino to inspect it. That was when he saw the reserve fuel tank on the ground and which had also blocked the back tyres. However, when asked further in cross 	examination, he changed his evidence when he said after the Hino stopped and on inspection of the Hino’s undercarriage, he saw that the reserve fuel tank had  snapped at its brackets and had fallen off causing damage to the under carriage of the Hino truck, especially the brake drum, amongst others.

(4)	When cross examined by Mr Manua for the First Defendant he said he was not driving fast as there were pot holes on the road. However, in further cross examination by the Second Defendants lawyer, he said he drove at a low speed, then shifted gear to a higher speed. That it was then that the truck swayed from side to side as he negotiated the potholes and that it may have hit a pothole.

5) 	Upon cross examination by Mr Manua for the First Defendant, he said that after the Hino stopped, he noted that it was getting dark.  He was fearful and that was when he saw 4 men employed by Steelhaus, walking home. He asked for help and they assisted him free and moved the Hino, after which he drove it to the Steelhaus yard.

6)	Upon cross examination by the Second Defendant's lawyer he said that at the  Steelhaus yard, he saw Elias Suka there. He left the Hino at the Steelhaus yard.

7) 	It should be noted also that during cross examination, the witness was in constant eye contact with Paias Alopea, the Plaintiffs Managing Director and owner who was seated at the back of the Court room. That he was often asked by the First Defendant's 	lawyer to face the Court or the Judge when giving evidence.

129.	This witness evidence, with its many contradictions, means that I cannot rely on it because it is not safe to do so.  Especially the very crucial evidence in relation to the speed at which he was driving when the reserve fuel tank snapped; what he saw when he looked at the undercarriage of the Hino and his opinion as to what caused the reserve fuel tank  to snap. Indeed I will place little or no weight on his evidence and will exercise my discretion to reject it.

Inferences and/or conclusions to be drawn

130.	Having reviewed all the evidence above, I must now draw likely inferences or find conclusions as to what actually occurred. Clearly, if there are contradictions in the evidence of witnesses or a witness, then the totality of their evidence cannot be taken as containing complete truths. The veracity of their evidence is also questionable and not credible (see Nick Kopia Kuman V Dawa Lucas Dekena (2013) N494 dated 15 January, 2013).

131.	The First Defendant's evidence is that the reserve fuel tank cannot be dislodged or cannot snap on its own accord because it was securely fastened or bolted to the Hino truck. And I accept this because according to the plaintiff’s witnesses, the Hino was driven to Tari, Hela Province on a fourteen (14) day trip. During that period, the reserve fuel tank did not snap or dislodge. No doubt, if the reserve fuel tank was insecurely attached or bolted to the truck, it would have snapped or dislodged during the 14 day trip to Tari and the Southern Highlands because the roads are rough and have trench like potholes. (See evidence of Paias Alopea and Martin Dengemba in cross-examination).

132.	Mr. Alopea and Mr. Dengemba’s evidence is that the along the Highlands Highway, all the way to Tari are covered in trench like potholes.  Then it can be inferred that if the reserve fuel tank was not fitted, affixed or bolted properly and permanently then the reserve fuel tank could have been dislodged or could have snapped during that trip.  But that did not happen.

133.	Of course, the Court can also conclude that during the 14 day trip to and from Tari, that the Hino was driven over trench like potholes and may have sustained damage to the reserve fuel tank.  However, in the absence of evidence from the Plaintiff that a complete mechanical check was carried out after the Tari trip and there was noted to be damage, then the only conclusion I can reach is that the Plaintiff was satisfied with the condition of the truck, that it was mechanically sound, then prepared itself for the next trip.

134.	And it was whilst the Hino was driven at high speed, along the Lae roads, that the Hino was driven into pot holes, after which the reserve fuel tank snapped. The reserve fuel tank was then dragged at high speed along the road whilst the Hino was moving, causing damage to the Hino’s undercarriage.

135.	The Plaintiff’s witnesses have not discharged the onus of proof on the balance of probabilities, that the First Defendant and or the Second Defendant have breached their duty of care owed to the Plaintiff.

136.	As for the First Defendant, there is irrefutable evidence that over many years, it had manufactured and installed reserve fuel tanks on large trucks for the Second Defendant. Thereafter, the Second Defendants clients purchased those trucks and used them without ever raising any complaints over the quality, the workmanship and the installation of reserve fuel tanks. In fact, the Plaintiff’s complaint is the first of its kind.

137.	The undisputed evidence is that, there is a system in place between the First and Second Defendants, where after the manufacture of reserve fuel tanks, that the First Defendants civil engineer, one Marcus Kupp, an expert in manufacturing and installation of reserve fuel tanks to trucks, would inspect the First Defendants employees workmanship, and upon being satisfied, would then contact Mr. Artango, Second Defendants workshop Manager, who would then also inspect the truck and upon being satisfied with the First Defendant's workmanship, and that the reserve fuel tank was securely fastened, then pay the First Defendants invoice and would then take delivery of the trucks. That process has not been shown by the Plaintiff, to be an unreliable and defective process.

138.	Furthermore, the Plaintiff alleges or claims negligence relying on the principle of Res Ipsa Loquitur. To have reliance on that principle, the Plaintiff must prove that the accident was caused by a breach of duty of care to the Plaintiff.  And that the Defendant was that somebody (See Godfrey Limited —v- Ryles (supra)). 

139.	The Courts have held that the principle of res ipsa loquitur is the process of inferential reasoning from which negligence may be inferred rather than it being a distinct rule of law. The burden of proof stays with the Plaintiff. 

140.	Indeed, the Defendants have explained the cause of the damage to the Hino’s reserve fuel tank and its undercarriage. That the damage occurred without any negligence or foul play by the Defendants. And finally, that the Hino was not under the Defendants control when the damage occurred to it. (see Marshall Lagoon Investments Company Pty Ltd v Ding Company Limited (supra)). 

141.	The only inference that can be drawn from the evidence of both the Plaintiff and the Defendants is that, the Plaintiffs employed driver drove the Hino at high speed. That it hit a pothole which caused the reserve fuel tank to break loose and come off its clamps, It then hit the surface of the road and was dragged along causing damage to the Hino’s undercarriage.  The accident and subsequent damage to the Hino was caused by the negligent driving of the Plaintiffs own driver.

Conclusion:

142.	The Plaintiff’s claims against the First and Second Defendants is based on negligence, for having manufactured and installed a reserve fuel tank that cannot withstand or ‘survive’  the rough terrain and road conditions of Papua New Guinea. However, I have seen that the Plaintiff has failed to show, by appropriate evidence on the balance of probabilities, that the First and Second defendants owed a duty to the Plaintiff and that it was breached. 

143.	The Plaintiffs witnesses evidence is also very contradictory in many respects, as I have seen above.

144.	The duty to be careful must exist. (see Grant V Australian Knitting Mills(supra). The Defendants must take reasonable care to ensure that their product is safe (see Maxine George V Burns Philip (NG) [1981] N 324 (L)). And the article must reach the consumer or user, subject to the same defect it had when it left the manufacturer (see Grant v Australian Knitting Mills (supra)). The Plaintiff has not shown that. 

145.	In this case, the Defendants took reasonable care to ensure that the reserve fuel tank was properly installed, by conducting the necessary checks.  There were no defects on it when it left the First Defendant’s and eventually, the Second Defendant’s yard.

146.	There is no evidence from the Plaintiff that an inspection by an Independent expert is a requirement in the engineering and mechanical profession, before a repaired or manufactured vehicle part is released. As far as I can tell, what was needed was for the Defendants to demonstrate that they did exercise reasonable care and skill. The evidence before me established and showed that the checking system employed by the Defendants is efficient, such that it was highly unlikely or at least not likely that a defective article would emerge from the First Defendant’s factory. (see Martin v Thorn Lightning Industries Pty Ltd [1978] W.A.R 10)

147.	And it is only when the Court accepts the Plaintiff’s evidence, then the Defendant’s must show that they were not negligent (see Martin v Thorn Lightning Industries Pty Ltd (supra). But that is not the case here.

148.	Therefore, the Plaintiffs claim will be dismissed with costs as it has failed to prove its claim against the First Defendant and eventually or thereafter, the Second Defendant. 

Formal Orders;

149.	I make the following orders;

1.	 The Plaintiff’s claim is dismissed in its entirety;

2. 	The Plaintiff will pay the first and Second Defendant’s costs of the whole 	proceedings, which will be taxed if not agreed.

Mirupasi Lawyers:  Lawyer for the Plaintiff	
Rageau & Manua Kikira Lawyers:  Lawyers for First Defendant:  	
In house lawyer for Toyota Tsusho (PNG) Ltd trading as Ela Motors:  Lawyers for Second Defendant: