N9303

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 311 OF 2018 (CC3)

BETWEEN
DAVID MAIP
Plaintiff

AND
ROBERT KOSAMBI
First Defendant

AND
DEKENAI CONSTRUCTION LIMITED
Second Defendant

AND
PAPUA ROADS STABILITIES LIMITED
Third Defendant

Waigani:  Linge AJ
2021: 12th October, 19th November

NEGLIGENCE – Motor Vehicle accident – duty of care owed by driver to other road users – defence of contributory negligence – proof of ownership of vehicle – proof of actual damage to vehicle.

Facts

The case arose out of a collision between a motor vehicle allegedly owned by the Plaintiff and driven by another person, and a truck driven by the First Defendant. The First Defendant was not charged nor convicted of any offence. The Plaintiff sued the First, Second and Third Defendants for costs of damage to his vehicle and associated costs and loss as a result of negligence of the First Plaintiff. The First Defendant was not served and the Second and Third Defendants denied any liability on the basis that no actual damage was proved, and plaintiff’s evidence of the collision was inconsistent and unreliable. The First and Second Defendants argued that even if negligence were established against the First Defendant, the driver of the Plaintiff’s vehicle was guilty of contributory negligence. A trial on liability was conducted.   

Held

1.	The Plaintiff did not prove actual damage to, and ownership of the vehicle involved in the collision with the First Defendant.

2.	The evidence of the Plaintiff is inconsistent and unreliable to prove negligence against by the First Defendant.

3.	Consequently, there is no findings of contributary negligence.

Cases Cited:
Papua New Guinea Cases

Kumbe v MVIL [2005] N2860.
PNG Institute of Medical Research v PNG Banking Corporation (1999) N1934.
Andrew Moka v Mator Vehicle Insurance Trust Ltd (2004) SC729
Brown v Motor Vehicles Insurance (PNG) Ltd [1980] PNGLR 409
Jimmy v Rookes [2012] PGNC54; N4705

Overseas Cases

Nettleship v Weston [1971] 2 QB691

Counsel:

Mr. D. Wayne, for the Plaintiff
Mr. D. Mel, for the Defendants

JUDGMENT

19th November, 2021

1.      LINGE A J:  This is a judgment on an action in negligence causing   damage to the Plaintiff’s Toyota Land Cruiser resulting in losses and associated costs for repair of vehicle.

2.	Trial of the cause of action took place before me on the 12 October  2021 by affidavit. Parties tendered their submissions.
Background
3.	The Plaintiff filed previous proceeding WS 976 of 2015 against the same defendants as in this proceeding.

4.	The proceeding was referred for mediation but was unsuccessful and relisted for hearing and on the 18 May 2017, the matter was withdrawn after parties consented hence this fresh proceeding.
Brief Facts
5.	This proceeding was filed on the 24 March 2018 by the Plaintiff claiming negligence by the Defendants causing vehicle accident around 4 pm on the 22 September 2014 at or near Sabusa, about 2 kilometres from the Laloki Psychiatric Centre.

6.	The Plaintiff was the owner of a Blue Toyota Land Cruiser, Registration No. CAX 419, who had hired out his vehicle to the Member for Kairuku-Hiri and at that time was driven by Paul Mauere, an Electoral Officer with the Kairuku-Hiri District. He was returning from Vanapa, Central Province after attending a project/political launching by the Member for Kairuku-Hiri.

7.	At a straight stretch of the road, Paul Mauere decided to overtake the vehicle, driven by Robert Kosambi, when he hit the vehicle driven by Robert Kosambi, the First Defendant herein.

8.	It is alleged that Robert Kosambi made a sudden right turn when Paul Mauere was overtaking and as result an accident took place whereby the car driven by Paul Mauere sustained damage on the left front bumper and engine.

9.	The Plaintiff issued these proceeding claiming negligence and breach of duty by the First Defendants that resulted in the accident, causing substantial damage to his car and for costs and loss.
Issues
10.	 The issues are:
1)	Was the accident caused by the negligence and lack of duty of care by the First Defendant?
2)	Has the Plaintiff proved his ownership of the Toyota Land Cruiser?
3)	Was there contributory negligence on the part of the driver of the Toyota Land Cruiser?
	Evidence
	Plaintiffs
11.	Plaintiff tender and rely on five (5) affidavits:

(1)	Paul Mauere filed 12 February 2020;
(2)	Sai Nao filed 12 February 2020;
(3)	David Maip filed 27 March 2019;
(4)	David Maip filed 10 May 2019; and
(5)	David Maip filed 29 August 2019.

12.	Paul Mauere for the plaintiff states that when he came on a straight stretch of road, he saw the Dekenai car ahead “at a slow drive”. He then decided to overtake and when he was already halfway Robert Kosambi suddenly turned his vehicle to the right. On the right side of the road was a ditch, so he decided to turn to the left side of the road, but the Dekenai car was on his way and so he hit the back trailer of the Dekenai truck. He did not say which part of the Land Cruiser hit the Dekenai truck.

13.	Sai Nou states that “we bumped into the side of the heavy-duty truck”. He says damage was caused to the front of the Toyota Land Cruiser. No actual evidence of damage to the Toyota land Cruiser had been tendered.

14.	The pleading states that the Plaintiff’s car had already overtaken and was about halfway when the accident occurred.

15.	David Maip’s evidence relates to his difficulty in locating the First Defendant for purpose of service of the originating process and confirmation of substitute service.

16.	He also confirmed that Paul Mauere had picked up vehicles previously from him based on an ongoing relationship between him and the Kairuku Hiri District Administration where Paul Mauere works as the Electoral Officer and because of that he did not bother to check his licence.

Defendants

17.	The Defendants tendered two (2) Affidavits consisting of one by Splendour Hora filed on the 21 October 2020 and the other by Paul Simon filed on the 21 October 2020.

18.	Splendour Hora was at the material time the off sider to Robert Kosambi the First Defendant, and the driver of the Dekenai car states that they were travelling below 60km per hour and on the left lane. He felt the truck lurch forward and then saw a blue vehicle veering out of control towards the right-hand side of the road and crashed into the embankment.

19.	He also states that during the heated confrontation with Paul Mauere and other occupants of the Toyota Land Cruiser, he observed that they appeared drunk by their behaviour and manner of talking and smelled of liquor. There were all together Eleven (11) persons. He says without hesitation that the accident was caused entirely by the dangerous and negligence driving of Paul Mauere, the driver of the Toyota Land Cruiser.

20.	The other Defendants witness Paul Simon, Highway Patrol attests that he received a call and attended the accident scene. He observed that Paul Mauere and his passengers were visibly under the influence of alcohol and also he smelled alcohol on them. The driver of the Dekenai truck and his off sider were not impaired and appeared sober.

21.	The Defendants deny the claim of negligence and traverse that any damage (if any) on the Toyota Landcruiser, was caused by or contributed to by the negligence of its driver, Paul Mauere.
Law
22.	The onus of proof in negligence vest in and is discharge by the plaintiff on the balance of probability. To establish a cause of action in the tort of negligence, the plaintiff must prove the elements.

23.	Courts in this jurisdiction have held that there are five (5) elements of the tort of negligence, see Kumbe v MVIL [2005] N2860, and these are:

1	Driver owed a duty of care to the Plaintiff.
2	Driver breached that duty by being negligent.
3	Driver negligent conduct caused damages to the Plaintiff vehicle.
4	Plaintiff damages were not too remotely connected to the driver’s conduct.
5	There was no contributory negligence.

24. 	A party who relies on negligence or contributory negligence must adduce appropriate evidence to substantiate its claim of negligence or contributory negligence as the case may be: PNG Institute of Medical Research v PNG Banking Corporation (1999) N1934; Andrew Moka v Mator Vehicle Insurance Trust Ltd (2004) SC729.
25.	In Nettleship v Weston [1971] 2 QB691 at p.699 per Lord Denning, the standard of care is an objective one, measured by the standard of a skilled, experienced, and careful driver.

So, if a driver goes off the road on to the pavement and injures a pedestrian or damages property, he is prima facie liable. Likewise, if he goes on the wrong side of the road. It is no answer for him to say, I was a learner under instruction, I was doing my best and could not help it. The civil law permits no such excuse. It requires of him the same standard of care as of any driver. It eliminates the personal equation and is independent of the idiosyncrasies of the person whose conduct is in question.

26.	Standard of care attributed to a driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver. He owes that duty of care to other road users: Brown v Motor Vehicle Insurance (PNG) Trust Ltd [1980] PNGLR 409.

27.	A defendant can prove on the balance of probability that the other driver or a victim is guilty of contributory negligence, where a driver is merging onto another lane and hit or get hit by a car that was already on that lane, Jimmy v Rookes [2012] PGNC 54; N4705.
Submission by Counsels
For the Plaintiff
28.	Counsel for the Plaintiff submits that the First Defendant was not driving on the designated left lane, made a sudden right turn and was driving an unregistered vehicle. Hence, he satisfies elements one and two in that he breached his duty of care and is negligent. 

29.	For elements three (3) counsel submits that the evidence of Paul Mauere about tooting of horn to overtake and the First Defendant turning right when he has no reason to do so is negligence on the part of the First Defendant.

30.	He also submits that the negligence of the First Defendant is corroborated by Sai Nou.

31.	In relation to remoteness or causation, Counsel for the plaintiff submits that the damage to the Plaintiff’s vehicle and associated costs were directly connected to the First Defendant’s negligence.

For the Defendants
32.	Mr. Mel of counsel for the Defendants submits that both drivers, Robert Kosambi, the First Defendant and Paul Mauere both owed duty 	of care to other road users, including to each other.

33.	As regards the second element, Counsel submits that, Plaintiff has failed to discharge the burden of proof and adduce required evidence in support. The evidence called by the Plaintiff conflicts with the pleadings and that the witnesses give differing accounts of how the accident occurred; and the position of the two vehicles at the time of the collision and the purported damage to the Toyota Land Cruiser.

34.	He submits that the Statement of Claim pleads the accident was caused by Robert Kasambi suddenly veering into the path of the 	Plaintiff’s vehicle as it was attempting to overtake it “causing damage to the front left exterior and interior” of the Toyota Land Cruiser, Ten-seater. The Pleading is unclear whether plaintiff’s vehicle collided into the rear of the truck from behind (front to rear collision).

35.	In support of his submission, Counsel provided a table that illustrate the conflict and inconsistency of the plaintiff’s evidence which I reproduce herein:

	Version of Accident	Area of Damage	
Statement of Claim (para 18 and 19)	“As the Plaintiff’s vehicle was overtaking, the Third Defendant’s vehicle driven by the First Defendant made a sudden right turn… the Plaintiff’s vehicle has already overtaken and was about half way through …”	“left front bumper and engine”
“front left exterior and interior”	
Paul Mauere (para 6)	“When I was already halfway beside the Dekenai truck, the Dekenai truck driver turned the vehicle towards the right side of the road deliberately where I was overtaking”		
(para 7)	“By this time the Dekenai truck was already in my way and I hit the back trailer of the Dekenai truck”		
Sai Nou 
(para 9)	“We bumped into the side of the heavy-duty truck …”	“front of vehicle”	
Police Road Accident Report	“VEHCLE (2) DRIVER WAS IN FRONT OF VEHICLE (1). VEHICLE (1) DRIVER SEEN THAT THERE WAS NO OTHER VEHICLE IN FRONT OVERTOOK VEHICLE (2). ALL OVER SUDDENT VECHILE (2) DRIVER DECIDED TO MOVE OVER TO HIS RIGHT AND AS A RESULT VEHICLE (1) BUMPED INTO THE REAR OF VEHICLE (2)”

The sketch of accident in the PRAR includes the point of impact at rear of truck.	“front”	

36.	Thus, he submits that the Plaintiff has failed to adduce the relevant evidence. The evidence the witnesses adduced are inconsistent, unreliable and ought not to be given any weight.

37.	On the actual damage alleged, Counsel submits that other than the differing point of collision the plaintiff had not adduced evidence of actual damage caused to the Land Cruiser. He submits there is no explanation for the obvious discrepancies.

38.	Counsel also submits that the Court must accept the evidence of Splendour Hora, about Robert Kosambi driving at a safe speed of 60km/ph on the left lane and suddenly lurching forward of their truck, his turning around and seeing a blue vehicle veering out of control towards the right hand and crashing into the embarkment on the side of the road, as proof that Paul Mauere was negligent in his driving and thus contributed to actual damage (if any) of the Toyota Land Cruiser.

39.	Counsel submits that the Court consider the evidence of Mr. Hora about his observation that the occupants of the Land Cruiser were about eleven (11) of them including the driver were visibly under the influence of liquor by the way they talked and smell of alcohol. He attests that no doubt the accident was caused by dangerous and negligent driving of Paul Mauere.

40.	Counsel submits for other Defendants witness, Paul Simon of the Highway Patrol gave evidence that when he came on the scene, he noticed that the occupants of the Land Cruiser were all under the influence of alcohol from their conduct and smell of liquor on them.

41.	Mr. Mel submits that Defendants raised valid defence of contributory negligence which the Plaintiff did not traverse nor rebut the defence raised by the Defendants witness.

42.	Finally, he submits that even if the First Defendant breached his duty of care, the Plaintiff has not adduced any evidence of actual damage suffered as a result of the breach. He further submits that no evidence is before the Court on ownership of the Landcruiser, description of damage to the vehicle, photograph of vehicle, quotation, or receipts of repair costs. That the Statement of Claim did not plead any loss of business and period of loss, profit and loss of hired business and how the accident resulted in loss of business and income.
Consideration 
43.	The Plaintiff who is the owner of the Toyota Land Cruiser did not give evidence on the extent of damage, cost of repairs, proof of his ownership of the vehicle and loss of business earnings.

44.	Paul Mauere’s evidence of the First Defendant driving slowly ahead of him on a straight stretch of the road and his overtaking implies that he was speeding or had to pick up speed to overtake the First Defendant. His statement that as he was already halfway, the First Defendant suddenly turned right, and that his seeing the slope and embarkment on the right side of the road and turning left hitting the Dekenai truck on the tail, does not make sense to the normal speed of car already halfway and travelling faster than the Dekenai truck he was overtaking.

45.	I must decide which version based on evidence is the proper one, hitting the Dekenai truck on the tail or the Sai Nou version of bumping on to the side of the heavy-duty (Dekenai) truck, so which is the right version?

46.	I consider the Defendants’ witness Splendour Hora’s evidence of their truck travelling on the left lane and his suddenly feeling the truck lurch forward, and his turning around and seeing a blue vehicle veering out of control towards the right hand and crashing into the embarkment on the side of the road as vital and a probable logical outcome of a fast-moving car hitting a slow-moving object/car.

47.	I find merit in the submission of Defendant’s Counsel on the discrepancy in the actual accident and the position of the two (2) vehicles at the point of collision.

48.	The Police Accident Report tendered in evidence does not assist in this regard. I consider the Report of no probative value because it was prepared some five (5) months after the accident and that it was not based on any face-to-face questioning of the witnesses as none took place.

49.	The First Defendant was not charged for any traffic offence and on the evidence of Paul Simon he cooperated and showed up at the Laloki Police post and later at the Gordons Police Station. 

50.	Paul Mauere, the driver of the Toyota Land Cruiser did not attend at the two (2) locations at Laloki Police Post and Gordons Police Station, when requested to do so and I accept that he was under the influence of alcohol.

51.	On the issue of licence, Paul Mauere is only a Class One (1) licence holder. Section 21 of the Motor Traffic Act restricts a class (1) holder to drive vehicles with maxim capacity of eight (8). To drive a Toyota Land Cruiser, Ten-seater, he must have a Class six (6) licence. He does not have a Class six (6) licence and he admitted that he was in breach.

52.	The Plaintiff, owner of the Land Cruiser, Ten-seater confirmed letting the car out to Paul Mauere to drive as he had done previously upon request by the Member of Kairuku-Hiri without checking and ensuring proper licence was produced.  But this does not justify his lack of verification and non-compliance.
Findings
53.	I find that both Robert Kosambi and Paul Mauere each had a duty of care to all road users including pedestrians.

54.	Every driver is responsible for other drivers and vehicles on the roadway and pedestrians. A driver has a duty of care and with that duty he has a responsibility as a reasonable person to obey rules, pay attention to other motorists and users and not to drive in a manner so as would harm or cause accident.

55.	As to whether there is breach of that duty by the First Defendant, the Plaintiff has failed to prove on the balance of probability that the First Defendant breach that duty as the evidence for the Plaintiff in relation to the collision was inconsistent and unreliable.
56.	On actual injury or damage caused to the Plaintiff’s vehicle following the collision, the Plaintiff has not adduced any evidence of actual damage to the Land Cruiser. It is trite that actual damage, loss, or injury must result from the accident.  

57.	I find element of contributory negligence by the driver of the Toyota Land Cruiser. This is a partial defence in an action in negligence and thus he contributed to the accident by the speed which can be inferred from his overtaking the slower vehicle and evidence of his under the influence of alcohol. 

58.	The effect of finding contributory negligence means apportioning part of the blame for the damage of the Toyota Land Cruiser (if any) to its driver. 
Order
59.	The Court orders that:
1.	The Plaintiff has not established a cause of action in negligence against the First Defendant.
2.	The Plaintiff failed to prove actual damage to and his ownership of the Toyota Land Cruiser.
3.	As there is no finding of negligence, consequently I make no finding of contributory negligence.
4.	Costs be in the cause.
_______________________________________________________________
Express Legal: Lawyers for the Plaintiffs
Mel & Hennry: Lawyers for the First Defendants