N11155

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 658 OF 2020

BETWEEN:
SPARKS TAMBIA
Plaintiff/Cross-Defendant

AND
KIKO PETRUS
First Defendant/Cross-Claimant

AND
PETRUS DAVID
Second Defendant/Cross-Claimant

LAE: DOWA J
2, 3 JUNE 2022; 13 FEBRUARY 2025

NEGLIGENCE – motor vehicle collision – claim for damages-whether certificate of registration required for proving ownership-whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent – tort of negligence. 

CROSS CLAIM- Whether pleadings on ownership consistent with evidence-whether cross-defendant was negligent – Where there are two versions in evidence, it is important to assess and analyse the credibility of the witnesses and their evidence and point out any aspect of the performance of each witness before accepting the evidence. Both parties having failed to prove their respective claims-proceedings dismissed.

Cases cited
Yooken Paklin v The State (2001) N2212
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
Kei v MVIT [1992] PNGLR 195
Paikel v Kaiwe Pty Ltd [1997] PNGLR 603
Danga v MVIT (1997) N1665
Nagari v Rural Development Bank (2007) N3295
Molu v Pena (2009) N3817 
Paraka v Upaiga & Another (2010) N4090
Waranaka v Dusava (2009) SC940
Helen Jimmy v Paul Rookes (2012) N4705

Counsel
T. Berem for the plaintiff
W. Kume for the defendants

DECISION

1.	DOWA J: This is a decision on both issues of liability and damages.

2.	The Plaintiff claims damages against the Defendants for the loss of his motor vehicle a Toyota Land Cruiser, 10-Seater Registration No.  LBO 225 extensively damaged in a head-on collision involving the second Defendants’ vehicle, an Isuzu Dyna Truck Registration No. JAC 476. 

3.	The first Defendant makes a crossclaim against the Plaintiff seeking damage done to his vehicle, shifting the blame on the Plaintiff.

4.	The road accident took place at Yaubi village, Watarais along the Okuk Highway in the Morobe Province on the night of 9th July 2020.The Plaintiff was travelling in the direction of Watarais towards the Highlands while the Isuzu truck was travelling in the direction of Kassam Pass towards Watarais junction. Just a few meters away from the Watarais junction, the two vehicles collided in the middle of the road. As a result of the accident both vehicles sustained extensive damage, injuries to the drivers and passengers resulting in the death of a passenger.

5.	The Plaintiff alleges the accident was caused by the negligence of the driver of the Isuzu truck resulting in the loss of his motor vehicle.  

6.	The Defendants deny the Plaintiff’s claim and instead filed a Crossclaim against the Plaintiff. In the Crossclaim, the defendants allege that the Plaintiff drove under the influence of alcohol and caused the accident, which resulted in the complete loss of the second defendant’s vehicle.

Trial

7.	The trial was conducted on 2nd and 3rd June 2022 and decision reserved. 

Evidence-The Plaintiff

8.	The Plaintiff relies on the following affidavits which were tendered into evidence and exhibited as follows:

a)	Affidavit in support of Sparks Tambia sworn and filed on 4/9/2020 (doc 3) – Exhibit P1.

b)	Counter affidavit in response to the defendants’ notice of motion of Sparks Tambia sworn and filed on 24/11/2020 (doc 13) – Exhibit P2.

c)	Affidavit in support of Sparks Tambia sworn and filed on 9/4/2021 (doc 20) – Exhibit P3.

d)	Affidavit of Kepas Nicksi sworn on 28/7/2021 and filed on 29/7/2021 (doc 34) - Exhibit P4.

9.	The deponents were cross-examined. This is the summary of the Plaintiff’s evidence. The Plaintiff was travelling from Madang to Mt. Hagen on the evening of 9th July 2020. He loaded his vehicle, a Toyota Land cruiser, 10-Seater, Registration No. LBO 225 with 30 bags of betelnuts. Around 11.30pm, the Plaintiff drove past the Watarais junction and was heading for the Highlands when he collided with the Defendants oncoming vehicle from the opposite direction. The Plaintiff deposes the accident was caused by the first Defendant who left his left lane while on high speed and collided with him on his lane. He says the first Defendant was under the influence of liquor and caused the accident. As a result of the collision both vehicles sustained extensive damage. The Plaintiff was injured and trapped in the vehicle before he was rescued. The accident was investigated by the police the next day. Police investigated and concluded that the first defendant was careless in his driving which caused the accident. As a result of the accident, the Plaintiffs vehicle was extensively damaged and claims K80,000 for the full value of the vehicle. The Plaintiff refuted imputations levelled against him during the cross examination that he is not the owner of the motor vehicle, Toyota Land Cruiser Reg. LBO 225 and that he caused the accident. 

The Defendants’ Evidence

10.	The Defendants rely on the following affidavits which were tendered into evidence and exhibited as follows.

a)	Affidavit in support of Kiko Petrus sworn on 6/4/2021 and filed on 8/4/2021 (doc 19) – Exhibit D1.
b)	Affidavit of Kunai Gene sworn and filed on 8/4/2021 (doc 18) – Exhibit D2.
c)	Affidavit of Petrus David sworn and filed on 14/10/2020 (doc 9 – Exhibit D3.
d)	Affidavit of Smith John sworn and filed on 29/9/2021 (doc 38) – Exhibit D4.

11.	This is the summary of the Defendants’ evidence. The Defendants Isuzu Truck, Registration No. JAC 476 driven by Kiko Petrus was travelling from the direction of Kainantu towards Watarais on its way to Madang Province. Just before reaching Watarais junction, the Isuzu collided with the Plaintiff’s vehicle. The Isuzu Truck is a PMV and was loaded with passengers. The first defendant said that about 23 meters ahead, he noticed the Plaintiff’s vehicle occupying his lane. He signaled to the Plaintiff three times to get back to his lane, but the Plaintiff ignored his warning and kept occupying his lane resulting in the fatal accident. The Defendants said the collision took place on the Defendant’s Lane. The first Defendant and some of the passengers on the truck received injuries, resulting in the death of a passenger. All injured passengers were taken to Goroka Hospital early that morning.

12.	The Defendants stated further that the Plaintiff was drunk as they found canes and beer bottles in the vehicle he was driving. The witnesses Smith John and Kunai Gene depose punching the Plaintiff for causing the accident. As a further result, the Isuzu Truck was damaged beyond economic repair and the Defendants filed a Crossclaim against the Plaintiff.

Issues 

13.	The main issues for consideration are:

1.	Whether the Plaintiff has proved his claim on the balance of probabilities.

2.	Whether the Cross claimant has proved his crossclaim on the balance of probabilities. 

Law

14.	The Plaintiff/cross-defendant and the Defendant/cross-claimant have the burden to prove their respective claims on the balance of probabilities with credible evidence: Yooken Paklin v The State (2001) N2212.

15.	The cause of action of both parties is based on the tort of negligence. 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 and Kay Pure -v- Tonnesi Ewebi (2021) N9013.

16.	The elements of the tort of negligence particularly set out in the case Anis -v- Taksey (Supra) are:

(1)	Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.
(2)	Tortfeasor breached that duty, i.e. by act or omission the tortfeasor's conduct was negligent;
(3)	Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim;
(4)	Plaintiff and/or victim’s injuries were not too remotely connected to the tortfeasor's conduct; and
(5)	Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

17.	To establish negligence of a driver in a motor vehicle accident, the primary evidence should come from witnesses like drivers, crews, passengers and bystanders in proximity. Evidence of conviction of a traffic offence and evidence of the defendant being charged with a traffic offence, evidence of proposed action in a Road Accident Report are relevant but not sufficient to establish negligence. see Pure -v- Ewebi (Supra).

Consideration of Issue 1. Whether the Plaintiff has proven his claim on the balance of probabilities.

18.	For the Plaintiff to succeed, the Plaintiff must prove that:

1.	He is the owner of the motor vehicle 
2.	His motor vehicle was damaged because of the negligence of the first Defendant.
3.	He suffered loss

Is the Plaintiff owner of the motor vehicle Reg No. LBO 225

19.	The Plaintiff submits he is the owner of the vehicle, Toyota L/Cruiser, 10-Seater, Registration No. LBO 225. However, he did not produce the certificate of registration. A certificate of registration is prima facie evidence of ownership.

20.	There is a plethora of judicial authorities that a certificate of registration is relevant to proving ownership of a motor vehicle. Refer: Kei v MVIT (1992) PNGLR 195, Paikel v Kaiwe Pty Ltd (1997) PNGLR 603, Danga v MVIT (1997) N1665, Nagari v Rural Development Bank (2007) N3295, Molu v Pena (2009) N3817 and Paraka v Upaiga & Another (2010) N4090.

21.	In Paraka v Upaiga (Supra) the Court stated this at paragraph 19 of the judgment:

“19. But I am not satisfied that he is the owner of the motor vehicles because he has not produced any certificate of registration to prove ownership and I do not recall him giving any oral evidence as to when he purchased these motor vehicles or why he was unable to produce the certificate of registration for each motor vehicle. Evidence of ownership is relevant and crucial to a claim for damages for it is trite that he who alleges must prove it and in this case, if the plaintiff claimed that he suffered loss because his motor vehicles were damaged by the first defendant and his policemen, he must first prove that he owned them. In the absence of any evidence proving his ownership of these motor vehicles, I am not satisfied that he has established this claim and dismiss it.”

22.	Although a certificate of registration is prima facie evidence of ownership, it is not conclusive. Conversely the absence of a certificate of registration does necessarily negate ownership. 
 
23.	I note the contention by counsel for the Plaintiff that ownership of a motor vehicle can be proved without producing a certificate of registration. He cites the case of Helen Jimmy v Paul Rookes (2012) N4705 as authority for his submissions. In that case the Plaintiff did not provide the certificate of registration but maintained in her affidavit evidence that she was the owner of the bus. The Defendant did not present evidence to the contrary. The Court accepted her evidence and proceeded to find that she was the owner of the bus regardless. Part of the Court’s reasoning is stated at paragraph 4 of the judgment: 

“4. The certificate of registration is the critical document, and it is surprising that it has not been adduced in evidence. Proof of ownership is an essential part of the plaintiff's case. She cannot establish liability unless she proves that she owned the bus. However, though all of the cases just listed demonstrate the significance of a certificate of registration none of them say that without a certificate of registration a party cannot prove ownership of a motor vehicle; and there is no statutory provision that says that either. The court is obliged to weigh and assess all the evidence when determining the question of ownership. Here the plaintiff has given sworn testimony that she is the owner of the vehicle. The defendant has adduced no evidence to the contrary...”

24.	The cases referred to above are National Court decisions and they provide useful guide. In my view a certificate of registration is an important document. It is issued pursuant to Section 14 of the Motor Traffic Regulations 1967, as amended. It is issued only after an owner registers his or her motor vehicle. It is an official document issued by the Transport Department through the Road Traffic Registry Office. It denotes ownership and legitimacy. It is prima facie evidence of ownership until and unless such registration is proved otherwise.

25.	While a Court is at liberty to accept evidence of ownership without a certificate of registration, those cases can be limited to circumstances where the owner provides a reasonable explanation why he can not produce the certificate of registration and where there are other compelling evidence showing ownership.

26.	In the present case, the Plaintiff filed three affidavits of his own. The Plaintiff did not state clearly in the affidavits that he is the owner of the 10-Seater.He made general statements referring to the vehicle as his vehicle. His best evidence was in answer to questions during oral examination where he maintained ownership. Even then that is not sufficient as he did not attach a copy of the certificate of registration in any of the affidavits. He was asked during cross- examination to produce the certificate of registration. Initially he said the documents were misplaced and later in re-examination he said the documents were at home and he could not produce them in Court. 

27.	The Plaintiff sought to rely on the Road Accident Report (Annexure “C” in Affidavit, Exhibit P1). Although the Report was annexed to his affidavit, I will give no weight to the contents because the author, the police investigating officer, did not attend Court to verify the contents especially in the light of objections raised by counsel for the Defendants.

28.	The Plaintiff did not present any other documentary evidence in the form of safety sticker, repair quotations and invoices from motor dealers/workshops or original purchase documents depicting ownership. Given that the Plaintiff is represented by lawyers and is engaged in modern day business, it is inconceivable that he considered it not necessary or relevant to present the certificate of registration into evidence.

29.	Furthermore, I note from the statement of claim that the Plaintiff did not specifically plead that he is the owner of the subject motor vehicle. It is a critical omission. Without the pleading, there is no foundation to call evidence and be granted the relief he claims.

30.	I am not impressed with the whole of the evidence. I am not satisfied that the Plaintiff is the owner of the motor vehicle, Toyota L/Cruiser, 10-Seater, Reg. No. LBO 225.

Was the damage to the Plaintiff’s motor vehicle caused by the negligence of first Defendant 

31.	The evidence of the parties as to the cause of accident is hotly contested. The Plaintiff and his witness stated that the first Defendant who was under the influence of liquor drove onto the Plaintiff’s lane on high speed and caused the accident. The Plaintiff’s witness Kepas Nicksi, a bystander at the scene of the accident, says he was about 10 meters away from the road when he saw the Isuzu speeding down the highway, left his lane and collided into the 10-Seater. Immediately after the collision he checked the vehicles and spotted SP beer bottles both full and empty in the front seat of the Isuzu. As for the 10-Seater, he noticed the vehicle was loaded with betelnut bags.

32.	The Plaintiffs evidence is refuted by the first Defendant and his two witnesses who stated that it was the Plaintiff who caused the accident. They said the Plaintiff while driving under the influence of liquor and on high speed, left his lane, and collided with the first Defendants’ vehicle. The witnesses said immediately after the collision, they spotted SP beer canes and bottles in the 10-Seater and noticed the Plaintiff was drunk.

33.	There are two competing versions. The Supreme Court in Waranaka v Dusava (2009) SC940 held that where there are two versions in evidence, it is important to assess and analyse the credibility of the witnesses and their evidence and point out any aspect of the performance of each witness before accepting the evidence. 

34.	I do not accept the Plaintiffs evidence that the first Defendant is totally responsible for the accident. The accident happened at night at 11.30pm. It was dark and not easy to assess the speed and the encroachment onto the Plaintiff’s Lane by the oncoming vehicle. The Plaintiff did not give detail evidence of the accident. He did not give evidence of the steps he took, if any, to avoid the accident and if not, the reasons for not taking them. 

35.	 I do not accept the evidence of Kepas Nicksi. He is a local from Yaubi village and bystander at the scene of accident. He witnessed the collision from 12 to 15 meters from the road and facing Lae. From where he was and the direction he was facing with no clear vision, it is not easy to assess the speed of both vehicles and the encroachment onto the Plaintiff’s Lane by the first Defendant.  Finally, he did not report to the police investigating officers at the first instance of such crucial information about the liquor he found in the front seat of the Isuzu Truck even though he was aware of the police presence the next morning. 

36.	Generally, I am not impressed with the evidence of the Plaintiff and his witness.

37.	I now turn to the evidence of the Defendants. I do not accept the first Defendant’s evidence that the Plaintiff is totally responsible for the accident. Firstly, for the same reasons, that the accident happened at night at 11.30pm. It was dark and not easy to assess the speed and the encroachment onto the Defendants Lane by the Plaintiff’s oncoming vehicle. The assertion that he gave signals three times to the Plaintiff to get back to his lane from 23 meters is inconceivable. How can he be so sure about the distance especially in the light of the time and speed at which both vehicles were approaching each other before collision. If he had the time and space, why didn’t he take evasive action to avoid the action. His evidence is inconsistent with an answer to a suggestion put to him during cross examination. In response to a suggestion, that if the Plaintiff’s vehicle was on his lane (first Defendant’ lane), he should have slowed down or taken evasive steps to avoid the collision, the first Defendant said it was too close.

38.	 Secondly, I note the first defendant was driving fast himself.  In answer to questions in cross-examination about his speed, the first Defendant stated that he was travelling at the rate of 60 to 70 km per hour. That rate of speed is fast considering that he was approaching an oncoming vehicle in the opposite direction at mid night. 

39.	I am not impressed with the evidence given by Kunai Gene, witness for the Defendants. He is the crew of the Isuzu Truck. In his Affidavit filed 8th April 2021, Mr Gene deposed that he comes from Okiufa village, Goroka, in the Eastern Highlands Province. In his oral evidence, the witness said he comes from Bundi in the Madang Province. The different provinces of origin of the witness are not just a major inconsistency but a contradiction bordering on perjury. He was not asked to clarify. I will give no weight to the evidence of Mr Gene.

40.	 The balance of Mr Gene’s evidence is identical to that of the first Defendant. He recalls his driver giving signals to the other driver to return to his lane and the collision taking place at their lane. I am not impressed with his evidence. In his affidavit at paragraph 10, he deposed that the police from Ramu Police Station came to the scene of the accident to do an investigation on 10th July 2021. He repeats this date twice in cross examination. Other evidence show 10th July 2020 is the day when police attended on the scene of accident. This inconsistency in the date was not clarified and rectified. The witness also deposed that he saw the police the next day at the scene of accident but did not report to the police the cause of accident, especially the liquor he found in the Plaintiff’s vehicle. When asked during cross-examination why he did not tell the police, he said the police did not ask him. This is unbelievable because he is the crew of the Isuzu Truck. Given that his driver was hospitalised and not available, he is the main witness who would be responsible for reporting and yet chose not to talk to the police. I find the witness unreliable, and his evidence lacking credibility.

41.	I am not impressed with the evidence of the Defendants witness, Smith John. Smith John is a passenger. He was seated at the back of the truck. His evidence is not reliable. In paragraph 8 of his Affidavit, he deposed that he was surprised when they were hit by an oncoming vehicle. That is, he did not see how the accident happened. Despite that he proceeded to give further details of how the accident happened particularly stating that after their Isuzu truck was hit by the 10-Seater on their lane, they skewed from their left lane and landed at the far right of the road. In the oral evidence, he said their Truck was hit on the left lane. During further questioning, he explained that the collision took place on the Defendant’s left lane but skewed across to the far right of the road.

42.	 None of the other witnesses on both sides gave evidence of the final resting place of the vehicles after the collision. The sketch plan contained in the Road Accident Report shows the final resting place of the two vehicles were at the far left of the road facing Lae although the sketch plan is not conclusive evidence as the author was not produced to clarify. 

43.	In the end, I am not impressed with the competing evidence presented by the parties and their witnesses. It would have been helpful if the police investigating officer was called to clarify some of the lingering questions on the cause of accident, the point of impact and the final resting place of the vehicles as well as the questions involving presence of liquor in the two vehicles.

44.	Nevertheless, what is clear though, is that the accident happened at midnight. It was pitch dark with no surrounding light. The collision took place in the middle of the road along the highway. The condition of the highway is good. The road is straight and wide. The damage to both vehicles is extensive and fatal resulting in the death of a passenger. The point of contact for both vehicles is at each of the driver’s righthand side. It is a head-on collision. It is common sense and logic to attribute the accident to high speed on the part of both drivers, their failure to slow down, keep to their lane and take evasive steps to avoid the accident.

45.	For the foregoing findings and reasons, I conclude that the Defendants are not liable to the Plaintiff. 

Whether the Plaintiff suffered any loss

46.	Even if liability is established against the defendants, the Plaintiff has the onus to prove damages with credible evidence. The only evidence presented by the Plaintiff is a photograph of the damaged vehicle and a bare statement that his vehicle is damaged beyond economic repair and that his vehicle is valued at K 80,000.00. There is no evidence from a Motor Dealer or workshop showing the extent of the damage and the pre accident value of the 10-Seater. 

47.	In conclusion, I find the Defendants are not liable to the Plaintiff. I will dismiss the Plaintiff’s claim against the Defendants.

2.	Whether the Cross claimant has proved his crossclaim on the balance of probabilities. 

48.	It is pleaded in the Cross claim that Kiko Petrus is the Cross claimant. He is seeking damages for loss of the Isuzu Truck and for injuries he received in the accident. Both lawyers did not make any substantive submissions on the Cross claim.
 
Who is the owner of the Isuzu Truck.

49.	The first Defendant, Kiko Petrus, pleads he is the Cross claimant. Is he the owner of the Isuzu Truck, Registration No JAC 476. No certificate of registration was produced to confirm ownership. The evidence presented by the Cross-claimant, Kiko Petrus, and other Defendant witnesses is that Petrus David is the owner of the Isuzu Truck and Kiko Petrus was the driver on the night of the accident. The pleadings are inconsistent with the evidence. That is, there is no evidence to prove that the first Defendant/Cross claimant is the owner of the Isuzu Truck. For this reason alone, the crossclaim will fail.

Is the cross-claimant entitled to damages for personal injuries arising out of the motor vehicle accident.

50.	The Cross claimant seeks damages for personal injuries he received in the accident. Is he entitled to make a claim against the Plaintiff driver. This issue was not addressed by both parties.

51.	The relevant law governing claims for personal injuries arising out of use of a motor vehicle is the Motor Vehicles (Third Party Insurance) Act 1974. Section 54 (1) of the Act prohibits actions against drivers and owners of motor vehicles involved. Section 54 (1) reads:

“54. CLAIMS FOR DAMAGES.

(1)	Subject to Subsection (2), any claim for damages in respect of the death of or bodily injury to any person caused by, or arising out of the use of–

(a) a motor vehicle insured under this Act; or
(b) an uninsured motor vehicle in a public street; or
(c) a motor vehicle on a public street where the identity of the motor vehicle cannot after due inquiry and search be established,
shall be made against the successor company and not against the owner or driver of the motor vehicle and, subject to Subsection (5), any proceedings to enforce any such claim for damages shall be taken against the successor company and not against the owner or driver of the motor vehicle.”

52.	Clearly, the crossclaim by Kiko Petrus against the Plaintiff/cross-defendant is prohibited by Statute. I find the proceeding is frivolous and vexatious and shall be dismissed.

Whether the Plaintiff is negligent.

53.	Even if the crossclaim was properly before the Court, the Cross-claimant has the onus to prove negligence against the Plaintiff. As I have found, there is no clear evidence before the Court that the Plaintiff/cross Defendant is totally responsible for the accident. I repeat my findings and reasons for judgment in paragraphs 37 to 44. 

54.	For the foregoing reasons, I am not satisfied that the Defendant/Cross claimant has proved his crossclaim. 

Conclusion

55.	In in the end, I have reached a conclusion that the parties have failed to prove their respective claims on the balance of probabilities and shall be dismissed.

Costs

56.	Since both parties failed to succeed in their respective claims, they shall bear their own costs.

Orders
57.     The Court orders that:
1.	The Plaintiff’s claim is dismissed.
2.	The first Defendant’s crossclaim is dismissed
3.	The parties shall bear their own costs.
4.	Time be abridged.
_____________________________________________________________________
Lawyer for the plaintiff: Berem Lawyers
Lawyer for the defendants: George Kaore Lawyers