N10624
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 716 OF 2018

BETWEEN:
KUIMA SECURITY SERVICES LIMITED
Plaintiff/Cross Defendant

AND:
HILARY KEPO TALOPA
Defendant/Cross-Claimant

Lae:   Dingake J
2023:    16th August

DAMAGES – cause of action in negligence – motor vehicle accident caused by negligent driving defendant – plaintiff claims for costs for repairs done on damaged vehicle, loss of income – insufficient evidence adduced by plaintiff that defendant was negligent – claim not proven on the balance of probabilities – claim dismissed

CROSSCLAIM - defendant files crossclaim seeking damages from plaintiff - cross claimant to succeed in his claim must adduce sufficient evidence that establish on a balance of probabilities that the cross -Defendant was negligent resulting in the damages claimed – insufficient evidence adduced to prove plaintiff actually was negligent – claim dismissed

Cases Cited:

Andrew Moka v MVIL (2004) PGSC 38; SC729
Allen Anis v Dobon Taksey (2011) PGNC 189; N4468

Counsel:

Mr. Steven Kesno, for the Plaintiff
Mr. Terry Berem, for the Defendant

JUDGMENT

16th August 2023

1.	DINGAKE J:   INTRODUCTION: The Plaintiff’s claim is for damages occasioned by a motor vehicle accident that occurred at about 6:30am on the 2nd of December, 2017.

2.	The Plaintiff’s pleaded case is that the accident was caused by the Defendant who was negligent in that:

a)	He failed to keep any or proper lookout for other road users and vehicles in front of him;

b)	He failed to observe that the Plaintiff’s vehicle had slowed down and was signaling to turn right into its main gate;
c)	He failed to keep his vehicle under any or proper control;
d)	He failed to slow down or keep left to his side of the lane before the collision;
e)	He failed to slow down and wait for the Plaintiff’s to turn right into its main gate before taking (sic) over or continuing;
f)	He failed to take appropriate steps to avoid the collision; and
g)	He drove his vehicle at a speed that was excessive in the circumstances.
3.	The Plaintiff says that as a result of the accident, its vehicle was damaged as particularized in the Statement of Claim, and it incurred costs to repair the vehicle in the amount of K19,500.00 and loss of income amounting to K17,600.00, representing daily income loss of K200.00 over a period of eighty-eight (88) days.

4.	According to the Plaintiff, the Defendant is liable to pay all the damages as pleaded, including interest at 8% per annum, pursuant to the judicial proceedings (Interest on Debts and Damages) Act 2015 and costs of the proceedings.

5.	The Defendant denies the claim, has filed a defence and has also cross-claimed. 

6.	The essence of the Defendant’s defence to the claim is that the Plaintiff was the one who was negligent in that:

1)	The Plaintiff’s driver failed to have a proper lookout of the vehicles trailing behind, including the PMV bus and the Defendant’s vehicle, to ensure that there was clear passage for him to cross over to the Plaintiff’s premises on the right side.

2)	The Plaintiff’s driver failed to slow down to allow the Defendant safe passage as it has already overtaken the PMV bus and was overtaking or was in the process of overtaking the Plaintiff’s vehicle.

3)	The Plaintiff’s driver failed to take all necessary steps, measures or reasonable care required of a prudent driver in the circumstances so as to avoid colliding with the Defendant’s driver.

4)	The Plaintiff’s driver made a full 90’ turn to the right and drove without due care and attention.

7.	In his counter-claim the Defendant pleads that after the accident, the Plaintiff’s security personnel, and other unnamed security personnel attacked him and his passengers and in consequence of which he suffered extensive injuries including permanent loss of his left eye. He claims, inter alia, general damage to be assessed for bodily injuries, damages to the vehicle, economic loss (past and present loss), breach of constitutional rights, exemplary damages, special damages, interest and costs.

THE LAW

8.	The claims of the parties herein is based on the common law tort of negligence. Both parties, in order to succeed, must prove, that:

a)	The Defendant/Plaintiff owed a duty of care to the Plaintiff/Defendant (cross-claimant).

b)	The Defendant/Plaintiff breached that duty.

c)	The breach of duty caused injury/damage to the Plaintiff/Defendant.

d)	The injury/damage was not remote.

9.	It is trite law that a driver owes a duty of care to other road users, not to cause injury through negligence (Andrew Moka v MVIL (2004) PGSC 38; SC729);

10.	To succeed in their claim the parties must adduce cogent and credible evidence that proves their claims on a balance of probabilities.

11.	This Court, per Cannings J, has held that evidence of conviction of a driver for a traffic offence in subsequent civil proceedings that relate to the same facts as those considered by the Court which convicted the driver, raises a natural inference that the driver was negligent. (Allen Anis v Dobon Taksey (2011) PGNC 189; N4468).

12.	It seems logical to me that the acquittal would raise a natural inference that the driver was not negligent.

THE ISSUES

13.	In the Statement of relevant facts and legal issues filed on the 9th of February, 2022, the parties agreed that the issues that fall for determination are as follows:

1)	Whether the Defendant/Cross-Claimant was drunk and drove negligently resulting in the motor vehicle accident?

2)	If so, whether the Defendant/Cross/Claimant should meet the repair costs of the Plaintiff/Cross-Defendant’s vehicle including the claim for loss of income?

3)	Whether the Defendant/Cross-Claimant was assaulted by the Plaintiff/Cross-Defendant’s security including damaging his vehicle?

4)	If so, whether the Plaintiff/Cross-Defendant is liable to pay damages to the Defendant/Cross-Claimant for the injuries and permanent injuries he has sustained including he repair costs of his vehicle?

5)	Whether the Plaintiff/Cross-Defendant is vicariously liable for the alleged unlawful actions of its employed security guards in assaulting the Defendant/Cross-Claimant?

6)	Whether the Defendant/Cross-Claimant’s claim is pleaded with sufficient particularity?

7)	Whether the acquittal of the Defendant/Cross-Claimant by both the Lae District Court and the Lae National Court on the two charges of driving under the influence of alcohol (section 18 (a) Motor Traffic Act) and negligent driving (section 17 (1) Motor Traffic Act) have a bearing on this proceeding insofar as liability is concerned?

THE EVIDENCE

14.	In my mind, the issue that falls for determination may be summarized as follows: Whether the parties pleaded cases of negligence and resultant damages has been established entitling the Plaintiff/Cross-Claimant to the relief claims?

15.	The Plaintiff called four (4) witnesses who gave oral testimony, and their Affidavits were admitted as evidence without any objection. These witnesses are: Alex Tenambo, John Aure, Joe Upi and Martin Temai.

16.	The evidence of the Plaintiff can be crisply summarized. It is that an accident occurred between Motor vehicles Toyota Land Cruser, 10-seater Registration No. LBB 359, belonging to the Plaintiff and driven by, Tum Lupi, an employee of the Plaintiff and Toyota Land Cruiser Motor vehicle Registration No. LBH 610, driven by the Defendant. Motor vehicle Registration No. LB 359 right-hand side door was damaged.

17.	According to the Affidavit evidence of Alex Tenambo, he witnessed the accident at about 6:30am on the 2nd December 2017, in front of Kuima main gate. He says the accident happened when the Defendant overtook the PMV bus ahead of him. He says that the Defendant was travelling at a high speed. According to Mr. Temambo the Defendant was drunk, because his eyes were very red and he smelt heavily of alcohol. He also says he saw several empty SP beer bottles laid on the floor of the vehicle. The witness also said he saw the Defendant bleeding from a deep cut above his left eye.

18.	In his second Affidavit filed on the 6th December 2022, the witness denied the evidence of the Defendant/Cross Claimant and his witness (Noel Luke) who named four (4) employees as among those who assaulted the Defendant and damaged his vehicle.

19.	According to the Affidavit of John Aure (Exhibit “P3”) the Defendant (Talopa) drove his vehicle across the road and nearly ran over a woman with a child and selling food stuff at the side of the road. According to John Aure, as a result of the Defendant nearly running over a woman, the Defendant was confronted by the youth, who pulled him out of the vehicle and assaulted him and blood was coming from his mouth and face, and his vehicle was almost set on fire.

20.	A Sergeant Police Officer, in the Royal PNG Constabulary, by the name of Joe Upi investigated the accident and concluded that the Defendant was at fault. He decided to charge him for driving under the influence of liquor, in terms of Section 18(a) of the Motor Traffic Act and negligent driving under Section 17(1) of the Motor Traffic Act. However, the Lae District Court on the 23rd of March 2018 convicted Mr. Talopa of negligent driving and acquitted him of driving under the influence of liquor. The Defendant’s appeal to the National Court against conviction was successful and his conviction was quashed.

21.	The Defendant/Cross Claimant gave evidence, and also relied on his own Affidavits. He also called Billy Las, Jeremiah Poya and Noel Luke, who all testified and had their Affidavit’s admitted without objection.

22.	The Defendant’s evidence can also be briefly summarized. The Defendant’s evidence is to the effect that he was assaulted and or attacked by the employees of the Plaintiff and sustained injuries that led him to being admitted at Angau Memorial Hospital. 

23.	The Defendant’s evidence is that the accident was caused by the negligence of the driver of the Plaintiff’s vehicle. The Defendant testified that on Saturday, the 2nd of December, 2017, between 6 – 7 am, he drove a Toyota Land Cruiser, Registration No. LBH 610, towards Unitech from town, together with other passengers. He says he was driving behind a Toyota Coaster Bus, 25-Seater and Toyota Land Cruiser, 10 seater, white in colour owned by the Plaintiff.

24.	According to the Defendant, both vehicles were driving slowly. They did not indicate they were turning to the left or right and the right lane was clear. The Coaster bus pulled to the left side to drop customers. He says as he was behind this vehicle driven by the Plaintiff’s driver, he suddenly turned right and made a 90 degree turn towards the Defendant on the right side of the highway causing the accident.

25.	In his Affidavit, Exhibit “D2” the Defendant says that he tried to apply the brakes, but he hit the Plaintiff’s vehicle rear right side.

26.	The Defendant says that after the accident the Plaintiff’s security guards dressed in black (Kuima) uniform attacked him and other passengers. He says during the attack his face was all covered with blood and his eyes were hit by large stones. He says he was attacked by the Plaintiff’s security personnel until he fell unconscious to the ground. He says the Plaintiff security personnel even attempted to set his vehicle ablaze. The Defendant says that as a result of the injuries he was treated as particularized at para. 19 of Exhibit “D2”. The injuries he says he sustained and the damage to the vehicle are also particularized at para. 20 and 26 of Exhibit “D2”.

ANALYSIS OF THE EVIDENCE

27.	The evidence of the parties is a sharp contrast to each other in every material respect. What is clear and undisputed is that on the 2nd of December, 2017 at about 6:30am, the two (2) vehicles described earlier were involved in an accident that caused damage, of varying degree, to each vehicle. It also seems clear that following the accident, the Plaintiff sustained injuries and was admitted at the hospital.

28.	It is also not in dispute that the charges preferred against the Defendant were dismissed by the District Court and the National Court respectively.

29.	The question that is critical to answer is who caused the accident? Both parties blame each other. They have each particularized what actions or omissions in their view caused the accident. I have already outlined the actions and or omissions each party alleges caused the accident.

30.	In my assessment, the case of the Plaintiff was very much dependent, among other considerations, on whether there is proof, at the requisite threshold, that the Defendant drove at a high speed, and or was otherwise drunk and other acts and omissions of negligence as pleaded. In my opinion, no evidence was adduced with respect to the speed at which the Plaintiff was driving the vehicle. A finding of liability can therefore not be made based on the allegation of over speeding.

31.	With respect to the assertion that the Defendant was drunk there is some evidence that may raise a reasonable inference that he may have been drinking alcohol and nothing more. The Plaintiff assumes that just because the Defendant smelt of alcohol and bottles of beer were found in his vehicle, means that he was drunk. However, there is no evidence that proves he was drunk. Even if I were to accept the Plaintiff’s evidence that his eyes were red, it would, in my mind be speculative to conclude that means the Plaintiff was drunk. 

32.	I do think that the Plaintiff adduced sufficient evidence to establish that the Defendant was drunk. I must mention that in this case, there were no contradictions and inconsistences of a material nature in the totality of the evidence that could have filled the gaps in the Plaintiff’s favour. Neither did I find the demeanor of the parties helpful in this regard.

33.	In my assessment the other acts or omissions pleaded by the Plaintiff as evincing negligence have not been proven at all.

34.	It follows from my assessment of the evidence that I do not think that the Plaintiff has proven his pleaded case and same is liable to be dismissed in its entirety. 

35.	I turn now to the evidence of the Defendant (the cross-claimant). Just like the Plaintiff, the cross claimant to succeed in his claim must adduce sufficient evidence that establish on a balance of probabilities, that the cross-Defendant was negligent resulting in the damages claimed.

36.	The case of the Defendant with respect to the cause of the accident is based on the allegation that the Plaintiff failed to keep a proper look out as he suddenly turned right without so indicating causing the accident. The claim with respect to the damages arising out of the assault of the Defendant is that the assault was perpetrated by the security personnel of the Plaintiff. The evidence of the Defendant as to his state, namely being hit with stones and blood coming out of his face may have militated against him seeing his assailants clearly.

37.	The evidence of Plaintiff’s witness, John Aure (Exhibit “P3”) is to the effect that the Defendant was assaulted by angry youth after the Defendant nearly ran over a woman. Obviously, the evidence of the parties with respect to who assaulted the Defendant occasioning the injuries complained of is in sharp contrast. How do I then reconcile the contradictions to arrive at the correct answer? The answer is that it is difficult to reconcile the two (2) diametrically opposed pieces of evidence. 

38.	In my endeavor to reconcile the evidence to determine the truth, my task was not helped by the fact that there was nothing with respect to the demeanor of the witnesses that testified, that tended to show that either the witnesses of the Plaintiff or Defendant were not telling the truth. And there were no contradictions or inconsistencies in the evidence that could come to my aid to believe the evidence of the Plaintiff or that of the Defendant. The net result is that just like the case of the Plaintiff, the case of the Defendant, with respect to the cause of the accident, or who assaulted him, was not proven on a balance of probabilities.

39.	I must indicate at this stage that even if I were wrong to hold that the Defendant/Cross-claimant failed to prove his case on a balance of probabilities, I would still have dismissed it on the basis that there is no evidence to suggest that the Plaintiff’s security personnel assaulted the Defendant in the course or within the scope of their employment.

40.	In the result, I find that the Plaintiff (Kuima Security Services Limited) and the Defendant/Cross-Claimant, Hilary Kepo Talopa, have not proved their respective cases, and both cases are liable to be dismissed on the basis of insufficiency of evidence.

41.	In the premises, I make the following Orders:

1)	The Plaintiff claim and that of the Defendant as Cross-Claimant is dismissed.

2)	Each party is to pay its own costs.
_______________________________________________________________
Kesno Lawyers: Lawyers for the Plaintiff
Berem Lawyers: Lawyers for the Defendant