N8274 

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 619 OF 2016

BETWEEN
STELLAR CONSTRUCTIONS LIMITED
Plaintiff

AND
EMMANUEL SOALILI
First Defendant

AND
COURTS (PNG) LIMITED
Second Defendant

Waigani: Thompson J
2020: 5th & 18th March

DAMAGES - negligence - Motor vehicle accident – damage to vehicle – loss of use of vehicle – necessity to prove negligence – necessity to prove loss

Counsel:

Ms. E. Ngomba, for the Plaintiff
Ms. M. Worinu, for the Defendant

18th March, 2020

1.	THOMPSON J: The Plaintiff is claiming damages arising out of a motor vehicle accident which occurred on 17 July 2013. 
2.	The Plaintiff’s claim is that the 2nd Defendant’s vehicle had been so negligently driven by the 1st Defendant, that it collided with the Plaintiff’s vehicle, thereby causing the Plaintiff to sustain loss and damage. The 2nd Defendant has denied liability, and denied that any loss as claimed, was sustained.
Liability

3.	I deal first with the issue of liability.
4.	It was not in dispute that the Plaintiff’s vehicle was a relatively big Toyota Landcruiser, which was being driven, by Puka Matagu (“PM”). It was not in dispute that the 2nd Defendant’s vehicle was a relatively small sedan, which was being driven by the 1st Defendant.
5.	PM and his son, Igo Puka (“IP”) gave evidence that they were driving uphill behind the 2nd Defendant’s vehicle, which was driving at about 10 kilometres per hour. PM decided to overtake, increased his speed to 30 km per hour, and commenced overtaking. They said that the 2nd Defendant’s vehicle then moved to the right and bumped the left mudguard of the Plaintiff’s vehicle. PM said that he then swerved his vehicle to the right, and ran into a drain, so that the vehicle overturned. They said that they were both wearing seat belts, but despite this, they both sustained injury. 
6.	The 1st Defendant left the scene, and has not been able to be subsequently located.
7.	The 2nd Defendant submitted that this did not show negligence by its driver, and on the contrary, it showed negligence by the Plaintiff’s driver who overreacted by swerving his vehicle too far to the right.
8.	The 2nd Defendant called evidence from Denis Taku (“DT”), who was a qualified mechanic with over 20 years mechanical and driving experience. Based on photographs of the vehicle and the affidavit evidence of PM and IP, his opinion was that it was unsafe to overtake while going uphill, and that PM should have tooted his horn before starting to overtake. 
9.	PM and IP had not said in their affidavits that PM tooted his horn before starting to overtake. IP had said that it was only after the Defendant’s vehicle swerved into their path, that PM blew his horn and swung to the right. PM did not say in his affidavit that he blew his horn at all. In his oral evidence, in cross-examination, PM said that he put on his horn and then he overtook.
10.	DT said that in his opinion, PM should have applied his brakes and returned to the left lane, when the Defendant’s vehicle moved to the right. He said that in his opinion, a small sedan driving at about 10km per hour could not have inflicted much damage if it bumped the larger vehicle’s bumper bar, and could not have pushed the larger vehicle off the side of the road. In his opinion, the damage to the Plaintiff’s vehicle was almost entirely caused by PM’s conduct in turning his vehicle too far to the right in response to the bump from the 2nd Defendant’s vehicle.
11.	DT’s evidence was put forward as expert opinion. Both he and PM were equally very experienced drivers. Some further weight could be attached to DT’s opinion on the cause of the damage, because of his mechanical expertise, but not in relation to the cause of the accident.
12.	There can be little doubt that it would generally not be regarded as prudent for a larger vehicle travelling uphill at 10km per hour to decide to accelerate and overtake the vehicle in front, in the absence of any evidence that there was an overtaking lane. The overtaking vehicle would have been in the direct path of oncoming traffic coming over the hill, leaving insufficient room for the uphill vehicle to safely return to the left side of the road.
13.	In the absence of evidence from the 1st Defendant, it must be assumed from the Plaintiff’s evidence that when the 1st Defendant moved his vehicle to the right, it did not remain within the left-hand lane, but moved across to the right-hand side of the road, because otherwise, it could not have come into contact with the overtaking vehicle, unless that vehicle was partly inside the left-hand lane. This could be the only evidence of negligent driving by the 1st Defendant.
14.	Assuming that the 2nd Defendant’s vehicle had moved into the right-hand lane, as it was travelling very slowly at 10km per hour, and was smaller and lighter than the Plaintiff’s vehicle, it is difficult to see that it could have resulted in significant impact. Nearly all of the damage was therefore likely to have been caused by the Plaintiff’s driver’s decision to swerve his vehicle right across the road, so that he ended up in a drain.
15. When assessing the reasonableness of each driver’s conduct, the width of the road is a relevant matter. There was no evidence of an overtaking lane, and there was a drain on the right hand side of the road. This meant that any vehicle which decided to overtake, had to be able to do so within the right-hand lane, with no room for error. If the left-hand vehicle moved even slightly, or if an on-coming vehicle came over the hill in the right-hand lane, the overtaking driver may have had little choice but to swerve further to the right, and into the drain. 

16. I find that it was not prudent to decide to overtake a slow-moving vehicle going uphill, on a relatively short stretch of road, without an overtaking lane. Doing this meant that when the Defendant’s vehicle unexpectedly moved to the right, the Plaintiff’s driver had to make a split-second decision on whether to return to the left lane or swerve to the right.

17. When a person is placed in a difficult position by the conduct of another, the court should not be too critical of that person’s response. 

18. Where, negligently, one party places another party in a situation of danger, it does not amount to contributory negligence if the other, in reacting, does something which with the benefit of hindsight, was a less than optimum solution.

“The (Defendant) has no right to complain if in the agony of the (moment) the (Plaintiff) fails to take some step which might have prevented a collision, unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances”. (Swadling v Cooper (1931) A.C.1)

19. It is easy to see with hindsight that, if bumped by a smaller and slow moving vehicle, a reasonably careful driver should have reduced his speed and dropped back behind the 2nd Defendant’s vehicle. If PM had simply applied his brakes, he would have dropped behind the 2nd Defendant’s vehicle, and little or no damage may have ensued.

20. The 2nd Defendant submitted that because PM overreacted, he should be held solely or substantially responsible for the resultant damage sustained when the vehicle overturned in the drain.

21. The Plaintiff objected, on the basis that the 2nd Defendant had not pleaded contributory negligence. Pursuant to Order 8 Rule 15, a Defendant who relies on contributory negligence must plead the contributory negligence. 

22. At the same time, the 2nd Defendant had further denied liability on the basis that the Plaintiff had not pleaded vicarious liability. The Statement of Claim contained the bare statements that the 1st Defendant was employed by the 2nd Defendant, and that the 2nd Defendant was vicariously liable. Order 8 Rules 29-32 provide that a party must give the necessary particulars of any claim pleaded by him. The case authorities make it clear that the facts giving rise to a claim of vicarious liability must be specifically pleaded. (Jack Pinda v Sam Inguba and anor (2012) PGSC 13).

23. The general principle is that unless there is a foundation in the pleadings of a party, no evidence and damages or relief of matters not pleaded, can be allowed (PNGBC v Jeff Tole (2002) SC 694).

24. Neither of these claims was pleaded as required. However, neither party was taken by surprise by these two issues, which were covered in the affidavits filed by both parties. Evidence of both issues was given without objection by both parties. In the circumstances, it would be reasonable to allow the Plaintiff to claim vicarious liability against the 2nd Defendant, and for the 2nd Defendant to claim contributory negligence against the Plaintiff.

25. In relation to vicarious liability, the evidence showed that the 1st Defendant was employed by the 2nd Defendant as a driver, was authorised to drive the 2nd Defendant’s vehicles, and had lawful access to the keys to the vehicle. The accident occurred during his working hours. The 2nd Defendant said that there was no evidence that he was carrying out a job at that time, and that therefore an inference should be drawn that he was most likely on a frolic of his own.

26. This argument is rejected. The test for determining vicarious liability is whether or not the employee’s act was part of or incidental to his employment, even though it may have been unauthorised or even prohibited, or whether it was so divergent as to be wholly distinguishable from it. (see Charlesworth and Percy on Negligence, 12th Ed, P199–200). The driver clearly had actual, as well as ostensible, authority to be driving the 2nd Defendant’s vehicle during the course of his employment. Unless the 2nd Defendant could prove that the 1st Defendant was undertaking an activity that was so far outside the scope of his employment that it would be a personal frolic, the 2nd Defendant is vicariously liable for the 1st Defendant’s conduct in the driving of the vehicle.

27. Taking all these matters into account, I find that the drivers were equally liable for the accident. The Plaintiff’s driver should not have overtaken when he did, and should not have swerved so far to the right, in response, while the 2nd Defendant’s driver should not have moved to the right. I therefore apportion liability between the parties on a 50/50 basis.

Claim for Loss

28. The Plaintiff’s evidence relating to the loss, was minimal.

29. The documents showed that the Plaintiff’s vehicle sustained damage and was towed to a place from where Raho Rakatani Sioni carried on business as a mechanic. It does not appear that the vehicle was ever inspected by any of the main car companies or anyone else in Port Moresby, to provide quotations for the repair costs, or to show if it was beyond economic repair. 

30. Instead, the Plaintiff appears to have simply relied on Mr. Sioni to carry out the repairs. He was unable to supply all the parts which were required, and the Plaintiff was apparently unable to pay for those parts. 

31. There was no evidence of the condition of the Plaintiff’s vehicle, prior to the accident. If it is assumed that it was roadworthy, then the vehicle has still not been restored to its pre-accident condition, as it is still not roadworthy. The evidence is that while the vehicle has been repaired sufficiently to enable it to be in working order, it still needs further parts, and it is still unregistered at the date of trial in 2020.

32. The Plaintiff produced two quotations for the cost of supplying certain parts in 2015, but no evidence that it had incurred such costs, or even if those parts had been obtained. Mr. Sioni gave evidence that he had been paid a total of K6,000.00 for repairing the vehicle to its current condition. There was no evidence of any other payments which had been made for repair costs.

33. The Plaintiff claimed for loss of income at K250.00 per day for the years in which the vehicle had been unable to be used. However, the only evidence which was produced, related to another company and to another vehicle. There was no evidence that this particular vehicle had been hired out for K250.00 per day prior to the accident.

34. A claimant cannot recover damages in respect of losses which could reasonably have been avoided. The claimant is free to act as he chooses, but if he fails to act reasonably and as a consequence his loss is greater than it would otherwise have been, he cannot look to the defendant to compensate him for the loss which could have been avoided. If, as a result of impecuniosity, the claimant has to borrow money in order to mitigate his loss, the cost of borrowing the money is recoverable. (Charlesworth and Percy on Negligence, 12th Ed, P357). 

35. The owner of a vehicle which has been damaged in an accident, is under a duty to mitigate his loss. He cannot simply sit back and do nothing, and then claim for loss of use of the vehicle. He must take all reasonable steps to have the vehicle repaired so that it can resume being used.

36. It was not reasonable for the Plaintiff to not carry out the repairs promptly, or indeed complete those repairs by the date of the trial, nearly seven years later. If the Plaintiff was uninsured, and if it could not afford to pay for the repair costs, it should have borrowed sufficient monies to effect the repairs, and then claimed for that further cost.

37. There was no evidence that the Plaintiff had requested the 2nd Defendant to inspect the vehicle and pay the repair costs. It is now too late for that to occur, as there is no way of now establishing the extent of the damage which was caused as a result of the accident seven years ago.

38. There was no evidence of why the vehicle was not registered and returned to use, despite being in running condition. A possible inference is that the vehicle is not yet roadworthy. There was no evidence of what parts might still be required, in order to make the vehicle roadworthy.

39. There was no evidence from the date of the accident in 2013, showing the estimated costs of repairs to the vehicle. 

40. Doing the best I can, having regard to the quotations for parts and the costs already incurred, it would be reasonable to allow a further K3,000.00 to enable the vehicle to be restored to its pre-accident roadworthy condition.

Conclusion

41. I therefore assess the total amount of the loss sustained by the Plaintiff, in the sum of K9,000.00. After apportioning liability, the amount payable by the 2nd Defendant is K4,500.00.

42. In relation to interest, relevant matters are that the accident occurred in July 2013, legal proceedings were not issued until June 2016, the matter was set for summary determination in 2018, and did not come to trial until March 2020.

43. In relation to costs, it is relevant that pursuant to Order 22 Rule 25, where the Plaintiff recovers a sum of less than K10,000.00, he is only entitled to costs on the District Court scale unless the Court otherwise. 

44. I therefore make the following orders:

(1) Judgment is entered for the Plaintiff against the 2nd Defendant in the sum of K4,500.00, plus interest at the rate of 8% per annum pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act from the date of judgment until payment.

(2) The 2nd Defendant is to pay 50% of the Plaintiff’s costs on the National Court scale, on a party/party basis, to be agreed or taxed.
___________________________________________________
Tamutai Lawyers: Lawyers for the Plaintiff 
Kopunye Lawyers: Lawyers for the Defendants