N10008

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

 WS NO. 1006 OF 2019

BETWEEN:
ANDREW BOKARI 
-Plaintiff-

  AND:
PAUL PATI 
-First Defendant-

AND:
TELIKOM (PNG) LTD 
-Second Defendant-

Lae: Dowa J
2022: 11th & 20th October, 4th November
NEGLIGENCE – motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent – tort of negligence. Whether evidence of charge of traffic offence is sufficient to establish negligence. The necessity of calling primary evidence to prove negligence. Contributory negligence -driving on public road without valid driving licence. Damages- Plaintiff has burden to prove damages with credible evidence.

Cases Cited:
Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
 Eton Pakui v The State (2006) N2977
Titus Banga v Madang Port Services Ltd (2011) N4302 
 Allen Anis v Dobon Taksey (2011) N4468
Kay Pure v Tonnesi Ewebi (2021) N9013
Yooken Paklin v The State (2001) N2212
Peter Wanis v Fred Sikiot and The State N1350
Enaia Lanyat v State (1996) N1481
Obed Lalip v Fred Sekiot and The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
Tirima v Angau Memorial Hospital Board (2005) N2779

Counsel:
G.  Guri, for the Plaintiff
L. Vava, for the Defendants

JUDGMENT

4th November, 2022

1.	DOWA J:	The Plaintiff seeks damages against the Defendants for damage done to his motor vehicle arising out of a motor vehicle accident involving the Defendant’s motor vehicle.

Facts

2.   	The Plaintiff is the registered owner of a motor vehicle, 25-seater Toyota Coaster bus, Reg. No. P6086K. On 29th October 2016, at around 12 mid-day, the Plaintiffs son, Mathew Bokari was driving the said bus. He was driving along the road next to Telikom College, Lae when it collided with the Second defendant’s Toyota Land cruiser driven by the First Defendant.  As a result, of the collision, the Plaintiff’s vehicle sustained extensive damage. 

3, The Plaintiff’s employed driver, Paul Pati, was driving the Landcruiser from the direction of Telikom College towards the main Telikom/Tent City road, Lae. At the main entrance, the Toyota Land Cruiser failed to give way to the Coaster bus. It proceeded to the main road and hit the Coaster bus which was cruising along the main road.

4. As a result of the accident, the Plaintiff’s motor vehicle sustained extensive damage. The Plaintiff alleges that the accident was caused by the negligence driving of the First Defendant to which the Second Defendant is vicariously liable. 

5.  The Plaintiff instituted the current proceedings seeking damages for repairs done to the motor vehicle and associated costs. The Defendants filed a defence denying negligence on the basis that a) there was no pleading on vicarious liability and b) that the Plaintiff’s bus was driven by an unlicenced driver.  

6.   The trial was conducted on both issues of liability and damages on 11th October 2022. The matter was then adjourned and fixed for submissions on 20th October 2022. The lawyers for the parties did not appear. The defendants filed their submissions. The Plaintiff who appeared in person sought adjournment to file his submissions. The court extended time for the Plaintiff to file his submissions on 28th October 2022.The Plaintiff did not file his submission until 1st November 2022. The matter was then fixed for decision on 4th November 2022 which I now deliver.  

		Issues

7.	Based on the pleadings and submissions of counsel, the issues for consideration are:

a)	Whether the First Defendant is negligent and liable?
b)	Whether the Second Defendant is vicariously liable for the negligent driving of the First Defendant?
c)	Whether the Plaintiff’s driver contributed to the accident?
d)	Whether the Plaintiff is entitled to damages, and if so, how much?

Evidence
 
8.    	a.	The Plaintiff relies on the following affidavits tendered into 			evidence:

i.	Affidavit of Andrew Pokari sworn and filed 16th July 2021 28.09. document No. 11 – EXHIBIT P1;
ii.	Affidavit of Andrew Pokari sworn and filed 04.08.2021 document no. 13 – EXHIBIT 2P1.ii.	Affidavit of Andrew Pokari sworn and filed 17th August 2022 document no.27 – EXHIBIT P3;
iv.	Affidavit of Mathew Pokari sworn and filed 4th August 2021 document no. 12 – EXHIBIT P4;
v.	Affidavit of Veronica Bokari sworn 14th and filed 30th September 2021 document no.15 – EXHIBIT P5.
vi.	Affidavit of Maryanne Dowe sworn and filed 16th August 2022 document no.26 – EXHIBIT P6.
vii.	Affidavit of Jacob Davis Waiti sworn and filed 30th September 2021 document no.16 – EXHIBIT P7;

                Some of the deponents were cross-examined by defence counsel.

b.	The Defendants did not present any evidence. 

9.	This is the summary of the Plaintiff’s evidence.  The Plaintiff is a resident of Lae.  He is a retired public servant, a schoolteacher. He used his retirement benefits to purchase the said coaster bus and was running a PMV business. The bus was registered in his own name, Registration No. P6086K. On 29th October 2016 around midday, his motor vehicle driven by his son Mathew Bokari had a road accident at the entrance to PTC College at Tent City, Lae City.  His vehicle which was travelling along the main road was hit near the entrance of the road leading to PTC College. As a result of the accident, his vehicle was damaged. He obtained quotations for repairs from three (3) motor dealers in Lae City which cost is substantial. As he could not afford the services of the main motor dealers, he engaged a local workshop for the repairs He deposed further that; the accident was investigated by the Police.  The First Defendant, Paul Pati, was charged and convicted for negligent driving and fined K400.00

10.	Mathew Bokari, the son of the Plaintiff, was the driver of the Plaintiff’s bus. He deposed in his affidavit that on the day of accident, he was the driver of the Plaintiff’s vehicle.  He drove from the direction of the back road towards Tent city main road. As he was driving through the entrance to the Telikom College he was suddenly hit from the left-hand side by the second defendants Toyota Land Cruiser driven by the First Defendant. He said the first defendant failed to give him way and protruded onto the main road and hit the passenger’s side door to the bus. When put to him during cross-examination that he was unlicenced to drive a coaster bus, he said he was licensed but could not produce the licence as he had lost it.

11.   Veronica Bokari is the wife of the Plaintiff. She was a passenger in the bus on the day of accident. Her evidence is identical to that of Mathew Bokari. She also deposed that after the accident, the family spoke to Mathew Paliu and Mathew Passingan both senior managers of the second defendant who assured them that the second defendant would meet the cost of the repairs.

12.   The third witness, Jacob David Waiti, was the crew of the bus, and his evidence is like that of Mathew Bokari and Veronica Bokari. He deposed that immediately after the accident they took the Telikom driver to Tent City police station for questioning, and there he learnt that the driver’s name was Paul Pati, and he was employed by Telikom (PNG) Ltd.

13.	The witness, senior constable Maryanne Dowe, is a traffic officer attached to the traffic section of the Lae police station. Senior constable Dowe gave evidence in support of the Plaintiff.  She deposed that the accident involving the Plaintiff’s bus was reported to her on 19th November 2016 whilst on duty.  She investigated the accident.  After visiting the scene of accident, talking to the drivers and witnesses, she concluded that Paul Pati the First Defendant was negligent in the manner of his driving.  She charged the first defendant for driving without due care and attention under section 17(2) of the Motor Traffic Act.  He was found guilty, convicted, and fined K400.00. She compiled a road accident report, a copy of which was attached to her affidavit. 

CONSIDERATION OF THE ISSUES

Whether the First Defendant is negligent in causing the road accident.

14.  The Plaintiff’s cause of action is based on the tort of negligence. The Defendants filed a defence denying liability. However, the defendants did not attend Court to give evidence in support of the defence. Despite that, the burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it. Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468.
15. The basic elements of the tort of negligence to prove liability as set out in the case of Pakui v State by his Honour, Cannings J are:
1. First that the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff and the other claimants;
2. Secondly that the tortfeasor breached that duty, ie by act or omission the tortfeasor's conduct was negligent;
3. Thirdly that the tortfeasor's negligent conduct caused injury to the claimants.
4. Fourthly that the claimants' injuries were not too remotely connected to the tortfeasor's conduct; and
5. Fifthly that the claimants did not contribute to their own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury
16.  Mr. Vava, counsel for the defendants submitted that the Plaintiff has not discharged the burden of proof that the first defendant was negligent, stating that the road accident report was lacking details, that the plaintiff’s driver was unlicenced and inexperienced.
  17. In respect of proceedings arising out of motor vehicle accidents like the present case, I repeat what I said in my judgment in Kay Pure v Tonnesi Ewebi (2021) N9013 that to establish negligence of a driver in a motor traffic accident, the primary evidence should come from witnesses like drivers, crews, passengers and by standers in proximity. The primary evidence is then supported by the next relevant evidence from traffic police investigators who may tender copies of Road Accident Reports. In some cases, the evidence of a motor traffic charge and a certificate of conviction may become relevant and add value to the primary evidence. Without the primary evidence, the secondary evidence described, though relevant, may not be sufficient to establish liability.
18.Is there direct evidence establishing negligence on the part of the first defendant? Mathew Bokari, the driver for the Plaintiff’s vehicle gave direct evidence.  His evidence is supported by Jacob Waiti and Veronica Bokari who were passengers of the bus. The Plaintiff’s driver was on his way from the back road towards the Tent City main road.  The First Defendant was driving out of the Telikom Training College onto the main road. When approaching the gate, he would have noticed the Plaintiff’s bus cruising along. Instead of slowing down or stopping to give way, he proceeded on to the road colliding with the oncoming bus. Although the first defendant did not admit liability during his interview with the police, he was found guilty by the Court for driving on a public road without due care and attention and was convicted and fined K400.00

19.I accept the evidence of the Plaintiff’s witnesses, Mathew Bokari, Veronica Bokari and Jacob Waiti.  I also accept the evidence of the Police Investigating Officer, who confirmed that the First Defendant was negligent in the manner he drove the Toyota Land Cruiser. The Road Accident Report contains an assessment of fault on the part of the first defendant. The contents of the report are hearsay but are relevant in determining the issue of fault.  Finally, I accept evidence of conviction which is also relevant and has probative value in confirming that the First Defendant was negligent in his driving which caused the accident. I am satisfied on the balance of probabilities, that the first defendant was negligent and is therefore liable.

20, In respect of the allegations against the driver of the Plaintiff’s bus, I consider the submission has some merit. Although the driver, Mathew Bokari, maintained during cross-examination that he was qualified to drive a coaster bus at the relevant time, he could not produce any evidence. The license he attached to his affidavit was issued after the accident. I am not satisfied that he was driving on a public road with an appropriate driving license. This, however, does not exonerate the first Defendant from liability as the accident was caused solely by his negligence. Nevertheless, and in fairness to the defendants, I am prepared to apportion liability on the basis that the driver of the bus contributed to the accident by driving on the public road without a valid driving license. I will therefore apportion liability at 20/80% in favor of the Plaintiff. This is because, as it appears, the Plaintiff permitted his son, Mathew Bokari, to drive the bus without a valid class 6 (PMV) license,

21.   In conclusion, I find the first defendant was negligent in causing the accident subject to apportionment of liability for unlicensed driving. 

Whether the Second Defendants is vicariously liable, for the negligence actions of the First Defendant

22. Is the second defendant vicariously liable for the actions of the first defendant. Vicarious liability is a common law principle by which one legal person is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility: Refer Tirima v Angau Memorial Hospital Board (2005) N2779.

23.  Mr Vava, counsel for the defendants submitted that the second defendant is not vicariously liable for the actions of the first defendant for lack of pleadings. I perused the statement of claim and note there is sufficient facts pleaded connecting the first defendant to the second defendant. It is pleaded in paragraphs 5, 7, 9,14, 15, 15A and 16 of the Statement of Claim that the first defendant was an employee of the second defendant driving a motor vehicle, a Toyota Land cruiser owned by the second defendant and that he was in the company of three other workers in the normal course of his duty. Evidence was led in support of the pleadings. It was established during the interview by police, that the first Defendant was employed by the second Defendant and the second defendant was the registered owner of the vehicle the first defendant was driving. There is evidence of senior managers of the second defendant giving indications, though falling short of a binding legal agreement, to pay for the damages. The actions of the second defendant and evidence presented clearly show that the second defendant had control and responsibility over the first defendant as employee. Even the District Court gave cognizance to this fact by directing the second defendant to meet the cost of the repairs when convicting the first defendant. In the circumstances, I am satisfied that the second Defendant is vicariously liable for the negligent actions/driving of the First Defendant.

Whether the Plaintiff is entitled to any damages, and if so, how much. 

Burden of Proof
24.	Whilst the issue of liability is settled, the Plaintiff is still required to prove damages with credible evidence.  Ref:  Yooken Paklin v The State (2001) N2212, Peter Wanis v Fred Sikiot and The State (N1350), Enaia Lanyat v State (1996) N1481; Obed Lalip v Fred Sekiot and The State – N147; Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

25. 	In Samot v Yame (Supra), His Honour, David J referring to legal principles to be applied in assessing damages said this at paragraph 46 of his judgment:
“ The Supreme Court in William Mel v Coleman Pakalia (2005) SC790 and the National Court decision of Cannings, J in Steven Naki v AGC (Pacific) Ltd (2006) N5015 summarise or identify a number of legal principles that are applicable in assessing damages where liability is established either following a trial or after the entry of default judgment and these are:
•	    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.)

•	    Corroboration of a claim is usually required and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J; Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331, National Court, Lenalia J.)

•	     The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

•	     The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

•	    If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

•	    Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J; Waima v MVIT [1992] PNGLR 254, National Court, Woods J; MVIT v Pupune [1993] PNGLR 370, Supreme Court, Kapi DCJ, Jalina J, Doherty J; Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247, National Court, Injia J.)

•	     The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

•	    The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

•	   The person who has been wronged has a duty to mitigate their losses; though it is the defendant who has the onus of proving failure to mitigate (Dia Kopio v Employment Authority of Enga and Others (1999) N1865, National Court, Hinchliffe J; Coecon v National Fisheries Authority (2002) N2182, National Court, Kandakasi J.)”
26. 	I will adopt and apply these principles in the present case when considering each head of damages sought by the plaintiff.
Consideration: Damages

27. 	How much in terms of damages is the Plaintiff entitled to? The Plaintiff claims the following in the statement of claim:

         a) Repair cost in the sum of K 78.032.62
         b) Loss of income in the sum of K 23,000.00
         c) Special damages

28.  The main claim is for the cost of repairs. The Plaintiff claims the sum of K78,032.62 in the statement of claim for the cost of the repairs. This amount is from a quotation from Boroko Motors dated 8th August 2017. The Plaintiff produced further quotations for the repairs from Ela Motors Lae dated 27th July 2017 for K 31, 609.00 and PNG Motors for K 41,340.84. The Plaintiff deposed that because he could not afford the repair cost, he did not tender his bus to be repaired by any of the recognized motor dealers who provided the quotations. Instead, he arranged for the repairs with a local workshop known as KBR Auto Service which did the repairs. He was charged K 20,400.00. There is no evidence whether he paid up this invoice.  The Plaintiff deposed that the bus was relatively new having purchased same from Ela Motors on 27th November 2015 for K 145,000.00. Due to the accident the bus deteriorated fast and broke down and is no longer in use.

29.   In my view, the Plaintiff has not satisfactorily proved that he is entitled to an award for K78, 032.62. This amount is not supported by evidence except for the quotations. A quotation is not an invoice. Where a quotation is provided with a note that it is uneconomical for repairs, then that quote maybe acceptable. In the present case, all three quotes have no such note, neither is there an explanation from the Plaintiff. The Plaintiff has a duty to prove his claim with credible evidence. I must remind myself of vague and uncorroborated claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.)

30.   However, the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

31.  	 In the present case, I am prepared to consider an amount that is reasonable in the circumstances. I do not intend to leave the Plaintiff without a remedy. 
32.   Counsel for the defendants submitted that the Plaintiff is not entitled to the entire claim of K78, 032.62 as it is only a quote for the repairs. Counsel submitted that the Plaintiff be awarded only 50 % of the average of the quotes provided by the motor dealers. Going by the suggestion of defence counsel, the average amount from the three motor dealers is K 50,327. 49. Fifty percent (50%) of the average sum will be K25.163.74.  

33.  I note from the photographs tendered into evidence that the Plaintiff’s vehicle was damaged from the passenger’s door. The repair assessment done by Ela Motors is K 31,609.00. The repair quote from Ela Motors appears to be reasonable as it is done by the Toyota dealer. The amount quoted is not far from the amount (K25,163.74) suggested by defence counsel. I am prepared to assess an amount that is close to the quote provided by Ela Motors, the Toyota dealer. In my view, a sum of K 30.000.00 is sufficient compensation for the damage done to the Plaintiff’s vehicle and would award same. 

       General Damages

34.  The Plaintiff makes a claim for general damages. This head of damages is a claim made for general pain and suffering. In my view, it is not appropriate to make an award under this head of damages and so I refuse the claim. 

         Special Damages

35.  The Plaintiff claims special damages. Although he made a general claim under this head of damages in the statement of claim, he has not pleaded a specific amount.  When presenting his evidence, he has attached to his affidavit invoices and receipts for general expenses for the bus and other related costs totalling K 3,437.21.  This is not an unreasonable claim as it is supported by evidence of invoices and receipts. However, since the Plaintiff failed to plead the amount, I will allow only 50% of this claim. This amounts to K 1,718.60 and I award same. 

Economic Loss

36.	The Plaintiff pleaded economic loss at the rate of K500.00 per day for 47 days totalling K23,000.00.  However, the Plaintiff did not give evidence in support of the pleadings. Pleading a claim and providing the necessary evidence are totally different matters. No evidence was produced to show that the bus was used as a PMV generating daily income at the relevant period. I will not make an award under this head of damages. 

Total judgment sum.

37.   The total judgment sum is K 31,718.60 which comprise of:
         
a)	Cost of repairs-       K 30,000.00
b)	Special damages-    K   1,718.60
                                             K 31,718.60

        Interest

38.	The Plaintiff is claiming interest.  I will allow interest at the rate of 8% on the amount assessed.  Interest is to commence from date of writ of summons, (15/08/2019) to date of judgment (04/11/ 2022) for a period of 1176 days.  Interest is calculated as follows:

	K 31,1718.60 x 8/100				=	K 2,537.88
	K 2,537.88/365 days			           =          K 6.95 per day
	K6.95 x 1176 days					=	K 8,173.20

39.	The total award inclusive of interest is		=	K 39,891.80 

          Contributory Negligence

40.   As I alluded to earlier, 20% of the total award shall be deducted for contributory negligence on the part of the Plaintiff’s driver who was allowed to drive on a public road without a valid and appropriate driving licence. The amount to be deducted is K7,978.36. The balance of the award to be paid to the Plaintiff shall be K 31,913.44.

	Costs

41.	The Plaintiff has succeeded in his claim and is therefore entitled to the costs of the proceedings as a matter of course. 

	Vicarious Liability

42.	I note the tortious action of the First Defendant which gave rise to the cause of action was done in the normal course of his official duties. He was the driver of the motor vehicle owned by the second defendant in the normal course of duties as employee. I will therefore order that the second defendant is vicariously liable. The first and second defendants are jointly and severally liable to settle the Judgment Debt.

Orders

43.     The Court orders that:

1.	Judgment be entered for the Plaintiff in the sum of K31,913,44 inclusive of interest. 
2.	The defendants are jointly and severally liable to settle the judgment debt.
3.	Post Judgment interest shall accrue at the rate of 8% until settlement.
4.	The Defendants shall pay the cost of the proceedings to be taxed, if not agreed.
5.	Time be abridged.
______________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Luke Vava Lawyers: Lawyer for the Second Defendant