N8731             
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 762 OF 2017

BETWEEN:
PEMBO KARL
Plaintiff

AND:
WILLIAM XING
First Defendant

AND:
COVEC (PNG) Limited
Second Defendant

AND:
TAO JOHN
Third Defendant

Lae: Dowa AJ
2020:  11th September & 30th October

DAMAGES – assessment of damages after trial on both issues of liability and quantum – plaintiff’s claim based on negligent driving by the first defendant causing extensive damage to plaintiffs PMV bus – defendant raises the defence of res judicata and terms of a deed of release signed by plaintiff that he will not sue the defendants after settling the matter in the district court – claim cannot be agitated as the district court had already settled the issue and paid damages to the plaintiff in a previous proceeding – terms of the deed of release states the plaintiff undertakes not to file any further court proceedings against the defendants on the same claim – plaintiffs claim dismissed for abuse of process under the principles of res judicata

Cases Cited:

AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944 and 
Kundu Consultants Ltd v The State (2001) N2128. 
National Airline Commission v Lysenko [1990] PNGLR 266
Titi Christian v Rabbie Namaliu (1995) SC1583 
Yooken Paklin v The State (2001) N2212 

Counsel:

W. Kume, for the Plaintiff
R. Kasito, for the Defendants
RULING

30th October, 2020

1.	DOWA AJ:	 The Plaintiff is claiming damages for damage done to his PMV Bus in a road accident allegedly caused by the negligent driving of the Defendant’s motor vehicle.

2.	The Defendant denied liability.  A trial was conducted on both issues of liability and quantum.

	Facts

3.	The Plaintiff alleges, he is the registered owner of a PMV Bus, Toyota coaster Bus Reg. No. P0845.

4.	On Wednesday, 02nd April 2014, the Plaintiff’s Bus collided with the Defendant’s motor vehicle, an Isuzu Truck Reg. No. RAN 936.  The accident took place at a section of road near Hoskins Airport, Kimbe, West New Britain Province.

5.	As a result of the accident, the Plaintiff alleges, his PMV. Bus was damaged beyond economic repairs and was written off.

6.	The Plaintiff alleges, the accident was caused by the negligent driving of the Defendant’s employed driver.  The Plaintiff claims against the defendant damages for value of the bus, economic loss and out of pocket expenses.

7.	The Plaintiff commenced proceedings in the Lae District Court where the Court entered Judgment for K10,000 with cost on 26th April 2016.

8.	On 14th June 2017, the Plaintiff signed a Deed of Release releasing the Defendant from further liability.

9.	The Defendant denied liability and filed a crossclaim for breach of the terms of the Deed of Release.

	Issues

10.	The issues for consideration are:

a)	Whether the Plaintiff has proven liability on the merits of the case.
b)	Whether the defence has successfully raised the defence of res judicata.

c)	Whether the Plaintiff is estopped from instituting further proceedings under the Deed of Release.

	Burden of Proof

11.	The Defendant has denied liability in the proceedings.  The Plaintiff has the burden of proof.  The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

	Evidence

12.	What evidence has the Plaintiff provided.  The Plaintiff gave oral evidence.  During the trial, the Plaintiff took the stand in the witness box.   His Lawyer Mr Kume introduced an affidavit allegedly sworn by the Plaintiff.  At the commencement of examination in chief, the Plaintiff was shown his affidavit by his lawyer.  The Plaintiff could not properly identify and affirm the affidavit as his.  Mr Kume attempted to tender the affidavit into evidence but was objected to by opposing counsel, Mr Rex Kasito on the basis that the witness did not identify the affidavit as his.  I ruled as a matter of course, that the Affidavit could not be tendered into evidence because the witness did not identify and affirm that the Affidavit was his.  Thereafter the Plaintiff gave only a brief oral evidence in chief and in cross examination. The Plaintiff did not call any further evidence. 

13.	The Defendant relied on the following two affidavits which were tendered into evidence without objection:

a)	Affidavit of Rex Manrai sworn 26/06/19 and filed 12/08/2019 – Exhibit D1
b)	Affidavit of Yun Guo sworn 30th June 2020 and filed 30th June 2020 – Exhibit D2
	
14.	The evidence of the Defence is that the Plaintiff’s vehicle was driven towards the direction of the Defendants vehicle and hit the rear of the Defendant’s vehicle. They allege, it was the Plaintiffs driver who was on high speed and caused the accident.  The Defendant maintains the Plaintiffs PMV Bus was not extensively damaged as claimed.  The vehicle was fixed and was on the road again as early as February 2015.

15.	The Defendants gave evidence that the Plaintiff has already instituted recovery proceedings in the District Court in Lae, in proceedings entitled GFC172/2016, between Pembo Karl v William Xing & two others.  The District Court made an award of K10,000 and cost of K6,292.00.

	Submissions

17.	Mr Kume, counsel for the Plaintiff submitted that, although the Plaintiff did not give sufficient evidence himself, liability is established from the Defendant’s evidence.  Mr Kume submitted in particular that the Defence witness, Mr Guo has admitted liability at paragraph 7 of his affidavit sworn and filed 30/06/2020 (Exhibit D2).  Mr Kume submitted the admissions is sufficient to establish liability on behalf of the Plaintiff.

18.	In respect of the defence of Res judicata, Mr Kume submitted, that the amount of K10, 000.00 awarded by the District Court in an earlier proceeding was in respect of the economic loss component of the claim only.  It did not include the cost of repairs or for the replacement value for the motor vehicle.  It was open and the Plaintiff is at liberty to institute the current proceedings.

19.	Mr Kasito, on the other hand submitted that the Plaintiff has brought no evidence at all to prove his claim.  He submitted that the Defence witness, Mr Guo, did not make any admissions on liability.  The submissions by counsel for the Plaintiff is misconceived.

20.	In respect of the defence of Res judicata, Mr Kasito submitted the dispute has been resolved by both the District Court and the National Court. Firstly the Lae District court, a court of competent jurisdiction made an order, awarding K10, 000.00 with taxed cost of K6, 292.00. The judgment debt was settled in full.  Further Mr Kasito submitted, the Plaintiff in executing a Deed of Release, has clearly intended that the matter was resolved and that no further proceedings would be instituted arising out of the same accident between the parties. Secondly, similar proceedings issued at the National Court in Kimbe was dismissed for want of prosecution in October 2019 between the same parties for the same claim. Mr. Kasito submitted that the current proceedings are an abuse of the process.

Whether the Plaintiff has discharged the Burden of Proof:

21.	Firstly, I will consider whether the Plaintiff has discharged the burden of proof on the balance of probabilities on the merits of the case. The Plaintiff is required to establish the following pertinent facts by credible evidence:

a)	Ownership of motor vehicle:
b)	Details surrounding the accident
c)	Proof of negligence on the part of the Defendants 
d)	Extent of damage to his PMV coaster bus
e)	Proof of loss
f)	Rebuttal evidence on the defence of Res judicata and Release.

22.	The Plaintiffs direct evidence came from the Plaintiff himself.  His affidavit was not tendered.  He did not give any detail evidence orally, even though he could have done that.  I find, there is no evidence at all establishing any of the matters I have set out to above.

23.    The Plaintiff, however, submitted that liability has been established from the defence evidence on two fronts; Firstly, the plaintiff relies on the contents of paragraph 7 of the affidavit of Mr Yun Guo, a defence witness, submitting that it contains admission of liability.  Paragraph 7 of Guo’s Affidavit states and I quote:

	“As the accident involved COVEC’s vehicle and COVEC had an ongoing project, we tried to ease any disruptions to the project and also foster a good relationship by coming up with a Memorandum of Understanding on 7th May 2014 whereby COVEC will fix damages to the bus and also a payment of K1, 500.0 as a form of respect between parties.  It was not an admission to liability.”

24.	A closure perusal of the above statement shows no real admission of liability.  In fact, the rest of Mr Guo’s Affidavit contains evidence of denial of liability. In my view, the Plaintiff’s submission is misconceived.
25.	Secondly, the Plaintiff sought to establish liability from the contents of the Road Accident Report. The Police Investigating Officer who investigated the accident proposed that the Defendant’s driver be charged with driving without due care and attention.  However, there is no other evidence establishing whether the driver was charged and convicted.  The Road Accident Report contains hearsay evidence.  I am not prepared to place much weight without corroborative evidence. The corroborative evidence can only come from the police investigating officer or any eye- witnesses especially the drivers involved in the accident.  No one came to give corroborative evidence.
26.	For these reasons, I am not satisfied that the Plaintiff has proven his claim on the balance of probabilities.  I will dismiss the proceedings on the merits of the case.
	Res Judicata 
27.	I now proceed to decide whether the defence of Res Judicata has been made out.  The Defendant raised the defence of res judicata. It is a common law doctrine.  The basic principles on the doctrine of res judicata is set out by the common law. They are adopted and applied in the cases Titi Christian v Rabbie Namaliu (1995) SC1583, National Airline Commission v Lysenko [1990] PNGLR 266; AGC (Pacific) Ltd v Sir Albert Kipalan (2000) N1944 and Kundu Consultants Ltd v The State (2001) N2128. 
27.	Four basic principles emerge from these cases are that, in order for the defence of res judicata to succeed, a party relying on the doctrine must show:
1. 	The parties in both cases are the same.
2. 	The issues(s) in both cases are the same.
3.	The previous judgment extinguished the foundation of the claim or the right to set up the action. The result is final and conclusive, and it binds every other Court.
	4. 	A Court of Competent jurisdiction made the first decision.
28.	I adopt and apply the principles to the present case.
29.     The facts show, the Plaintiff instituted proceedings in the Lae District Court, under GFC 72 of 2015 between Pembo Karl v William Xing, Covec PNG Ltd & Tao John.  The parties are the same as in the present proceedings.  The proceedings relate to the same accident as that of the current proceedings.  The relief sought was for loss of income.  On 26th April 2016 the District Court made an award of K10,000 with cost.  Cost were taxed and allowed at K6,292.00. Between 30 October 2016 and 15thJune 2017 the total judgment debt inclusive of the taxed cost was paid by the Defendants to the Plaintiff. This decision is final and in force.
30.	The evidence shows, the Plaintiff has instituted an earlier proceeding in the National Court in Kimbe.  The details are:  WS No. 1323 of 2014 between Pembo Karl v Tao John and Covec (PNG) Ltd, filed 23rd October 2014.  The cause of action is the same as the present one.  The parties are the same.  The relief sought is the same.  On 01st October 2019, the proceedings in Kimbe was dismissed for want of prosecution. Again, this decision is in force and binding on all parties.

31.	Clearly, the Plaintiff has repeated the proceedings for which the issues raised were determined by a court of competent Jurisdiction.  Mr Kume, counsel for the Plaintiff submitted that the proceedings in the District Court were for economic loss alone and did not include the cost for the damage for the vehicle.  However, there is no evidence that the District Court proceedings were only for the economic loss.  The pleadings do not clearly plead this pertinent fact asserted by the Plaintiff.  The Defence filed by the Defendant was clear.  If the Plaintiff wanted to differentiate the proceedings in the present case to that of the previous proceedings, he should have filed a Reply traversing the allegations as required under Order 8 Rule 21 of the National Court Rules.  He did not plead the facts to take issue with the Defence.  

32.	On the issue of pleadings, the Supreme Court settled the law in the case, Papua New Guinea Banking Corporation v Tole (2002) SC694. At page 5 of their judgment, the court said:
” First Two Issues – Pleadings
	The first two issues are closely related. They involve the issue of pleadings so they are being dealt with together. The law on pleadings in our jurisdiction is well settled. The principles governing pleadings can easily be summarized in terms of, unless there is foundation in the pleadings of a party, no evidence and damages or relieves of matters not pleaded can be allowed. This is the effect of the judgements of this Court in Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214 at p.221 and Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370 at pp. 373 –374. These judgements re-affirmed what was always the position at common law and consistently applied in a large number of cases in our country. The list of such cases is long but reference need only be made to cases like that of Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254 and Carmelita Mary collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580 at p. 582 for examples only.
	This position follows on from the objects behind the requirements for pleadings. As the judgement in Motor Vehicles Insurance (PNG) Trust v. James Pupune (supra) at p. 374 said in summary, pleadings and particulars have the object or functions of:
	"1. 	they furnish a statement of the case sufficiently clear to 	allow the other party a fair opportunity to meet it;
2.	they define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and
3.	they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. See Dare v. Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664."

33.	It is clear, the Defendant raised a valid defence.  The Plaintiff did not traverse the defence raised.  The Plaintiff did not provide any rebuttal evidence to counter the defence raised.  For these reasons, I am of the view that the Defendant has succeeded in establishing a defence on res judicata. The current proceedings are an abuse of the process and are frivolous. I will therefore dismiss the Plaintiff’s proceedings on this ground.
	Deed of Release
34.	The third contention by the Defendant relate to the Deed of Release.  The evidence shows, the Plaintiff signed a Deed of Release on 14th June 2017, releasing the Defendants from any further claims arising out of the accident, the subject of the District Court proceedings.  The parties agreed that upon settlement of the judgment debt of K16, 292.00 the Plaintiff will not institute any further proceedings, in respect of the same cause of action.
35.	Paragraphs 1-6 of the Deed of Release states as follows:
“1.	The Releasor hereby forever indemnities, releases and discharges the Releasee from all actions, claims, suits or demands arising out of or in respect of the motor vehicle accident claim referred to in the preceding paragraphs above.
2.	In consideration of the Releasor indemnifying the Releasee as aforesaid, the Releasee agrees to pay the Releasor the sums of K10,000.00 as full and final settlement of any claim the Releasor may have against the Releasee arising from the motor vehicle accident and damage to the motor vehicle Registration No. P08451 (as referred to in the preceding paragraphs above).
3.	The Releasor agrees with he Releasee that this Deed may be pleaded as a bar to any action, claim or demand made by the Releasor or their successors or assigns or persons acting on their behalf in regard to the Releasor’s aforementioned claim.
4.	In consideration of the Releasor indemnifying the Releasee as aforesaid, the Releasee agrees to pay K6,292.00 in full and final satisfaction of any claim for legal costs and interests in legal proceedings District court, GFC No. 72 of 2015 between Pembo Karl -v- William Xing, Covec (PNG) Limited and Tao John in Lae, Morobe Province.
5.	The Releasor does hereby covenant to indemnify and keep at all times indemnified, the Releasee or its employees, successors and agents against all actions, suits and demands by any other person, firm or corporation whatsoever and however arising in respect of the collision and damage to the motor vehicle Registration No. P08451.
6.	The Releasor shall not make any complaint, demands or threats of any nature against the Releasee.”   
36.	The terms of the Release are clear.  The Plaintiff made a promise that he will not institute proceedings against the Defendants for the same accident.
 37.  In NCDC v Yama Security Services Pty Ltd (2003) PNGLR16 the Supreme Court said at page 9 of the judgment:
“A Deed of Release constitutes a settlement or compromise of a pending action. It is a contract which is enforceable on its own force. Its validity and enforceability is dependent on the existence of essential elements of ordinary contracts such as the legal capacity of the contracting parties, the intention of the parties to create legal obligations, valuable considerations offered by each party and in cases where these elements are regulated by statute, compliance with any statutory requirements imposed on contracting parties.”
38.  	In Polume v Benny (2008) N3350, Justice Kirriwom said this at paragraphs11and 13 of the judgment.
“11. Deed of Release (described Release of Third Party)
“A Deed of Release is a legal document that everyone knows that once executed, a party is bound by what the deed is committing them to. It does not exclude other claims arising out of that accident such as loss of business. The deed of release in this instrument is expressed in these terms:
….
13. 	The Defendant is entitled to rely on this deed of release as indemnifying him from further claims arising out of this same motor vehicle incident of 19th July 2005. After all vehicle owners purchase at exorbitant prices comprehensive insurance covers for their motor vehicles to insure themselves against damage caused to their vehicles and to third party’s property by their vehicles and to be relieved of them in the event of accidents. In this case the insurer had taken care of that as evidenced by the deed of release. If there was anything more that fell outside this insurance cover, the case ought to have been clearly and adequately pleaded so that the Defendant could properly respond and the issues become crystal clear at the outset to be addressed. The Plaintiff has not convinced me that notwithstanding the deed of release, he can still proceed with his claim on the loss of business quite apart from the deed which only relates to the repairs to the vehicle. Instead the case has been proceeded with in a haphazard manner with no real determination. In my view, the Plaintiff is bound by the deed that he executed.”

39.	The Plaintiff has made a promise not to sue the Defendant for this cause of action.  The Plaintiff is now estopped from instituting these proceedings the subject of the Release.  In Theiss Watkins v PNGEC (1988-89) PNGLR 454, Justice Hinchliffe discussed the issue of estoppel, and adopted the following principles to be applied:

(i)	The party seeking to rely on an estoppel has placed himself in a position of material disadvantage as a result of reliance upon the representation….”

(1)		A representation must be clear before it can be found an 	estoppel…

(2)		It is essential to show that the statement was of such a nature that it would have misled any reasonable man and…was in fact misled by 	it….

(3)		It must be such as will be reasonable understood in a 	particular sense by the person to whom it is addressed.”

40.	There is no evidence that the Plaintiff has disowned the release or that he did not understand the terms. The Plaintiff has voluntarily signed the Release.  On the other hand, the Defendant has relied on the terms of the release.  In the circumstances, the Defendant is entitled to raise the defence of estoppel based on the Deed of Release. This renders the proceedings frivolous and vexatious. I will, therefore, dismiss the proceedings on this ground as well.
41.  	For the foregoing reasons, the Plaintiffs proceedings be dismissed on its entirety.
	Orders
42.     The Court orders:
(1)	The Plaintiff’s proceedings be dismissed.
(2)	The Plaintiff pay the Defendant’s cost, to be taxed, if not agreed.
(3)	Time be abridged.
______________________________________________________________
Graeme Lawyers: Lawyers for the Plaintiff
Kasito Lawyers:	Lawyers for the Defendants