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Mapu v Mainland Holdings Ltd [2025] PGNC 419; N11572 (4 November 2025)

N11572

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


WS NO. 543 OF 2021


BETWEEN
PS. PEARSON RAMI MAPU
Plaintiff / Cross-Defendant


AND


MAINLAND HOLDINGS LIMITED
Defendant / Cross-Claimant


LAE: DOWA J
9 AUGUST, 6 SEPTEMBER 2023; 4 NOVEMBER 2025


NEGLIGENCE – motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent -Whether evidence of charge of traffic offence and certificate of conviction is sufficient to establish negligence. The necessity of calling primary evidence to prove negligence-whether Plaintiff contributed to the accident-Held Defendant’s principally liable- -damages awarded subject to deductions for contributory negligence.


Cases cited
Allen Anis v Dobon Taksey (2011) N4468
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
Yooken Paklin v The State (2001) N2212
Jonathan Mangope Paraia v The State (1995) N1343
Samot v Yame (2020) N8266
Kay Pure v Tonnesi Ewebi (2021) N9013
Tirima v Angau Memorial Hospital Board (2005) N2779
Kuima Security Services Ltd v Philip (2024) N11048
Waranaka v Dusava (2009) SC940
Russel Mel Wassey v Jack Avir (2025) N11376
Peter Wanis v The State (1995) N1250
Graham Mappa v PNG Electricity Commission [1995] PNGLR 170
Kekeral Farming v Queensland Insurance [1995] PNGLR 405
Marshall Kennedy v Coca Cola Amatil (2011) N4946


Counsel
E Mambei, for the plaintiff/cross-defendant
J. Langah, for the defendant/cross-claimant


JUDGMENT


1. DOWA J: This is a decision on liability and damages in respect of the parties’ competing claims.


  1. The Plaintiff/cross Defendant claims damages against the Defendant/cross claimant, for damage done to his motor vehicle caused by negligent driving of the employed driver of the Defendant along the Okuk Highway in the Morobe Province
  2. Conversely, the Defendant /cross Claimant crossclaims against the Plaintiff/cross Defendant, for loss for damage done to its motor vehicle caused by negligent driving of the Plaintiff’.

Facts


  1. The proceedings arise of a road accident resulting in a collision of two vehicles owned by the parties to the proceedings. The Plaintiff is the owner of motor vehicle, Toyota Hilux Utility, Reg. No. LBM 597. The accident took place on 17th May 2021, at Yalu village, along the Highlands Highway, Morobe Province.
  2. The Plaintiff filed a Writ of Summons on 31st August 2021 claiming damages against the Defendant for being vicariously liable for negligent driving by its employed driver, Honki Konoiri.
  3. The Defendant denied liability and filed a crossclaim against the Plaintiff, pleading that the said accident was caused by the negligent driving of the Plaintiff resulting in the defendant sustaining financial loss for damage done to its motor vehicle, Nissan Navara, Reg. No. LAZ 718.

Trial


  1. The trial was conducted by tender of respective affidavits without cross-examination.

Plaintiff’s Evidence


  1. The Plaintiff relies on the following Affidavit:
    1. Affidavit of Pearson Rami Mapu filed 27th July 20203 -Exhibit P1
    2. Affidavit of Sgt Andrew Damien filed 28th July 2023-Exhibit P2
  2. This is the summary of the Plaintiff’s evidence. The Plaintiff is a Pastor with the Bible Fellowship Church of PNG and was at all material times pastoring at Speedway, Lae Morobe Province. He is the registered owner of the motor Vehicle, Toyota Hilux Utility, Registration No. LBM 597. On evening of Monday 17th May 2021 his vehicle collided with the Defendant’s vehicle, a Nissan Navara, Registration No. LAZ 718 at about 200 meters from Yalu Bridge along the Okuk Highway, Morobe Province. The collision took place around 7.00pm. The Plaintiff was driving from the direction of Lae towards Nadzab. The Defendant’s Nissan Navara driven by Honki Konoiri was travelling from the direction of Nadzab towards Lae. The accident happened when the Defendant’s driver coming on high speed left its lane crossed over while negotiating a slight bend and hit the Plaintiff’s vehicle at the Plaintiff’s Lane. The Plaintiff deposed that the Defendant vehicle’s front lights weren’t working well. The accident happened so sudden that the Plaintiff didn’t have time to react.
  3. At that point, the people living around the scene of the accident gathered and began to attack the Defendant’s driver blaming him for causing the accident. The accident was reported to Lae Central Police Station, the next day. Sgt Andrew from the Traffic Section attended to the accident scene. During the accident, the Defendant’s driver was seriously injured and was hospitalised. After discharge, the Defendant’s driver returned to work. The investigations resumed, and both drivers and witnesses were interviewed and statements obtained. Police then proceeded to charge the Defendant’s driver for negligent driving. Plaintiff deposed he was present in Court when the Defendant’s driver pleaded guilty to the charge. He was convicted by the Lae District Court on 25th June 2021 and fined K500.00.
  4. As a result of the collision, the Plaintiff’s vehicle was extensively damaged and would cost more than K109,000 for replacement. He also suffered loss in weekly income which he now claims against the Defendants.
  5. The Plaintiff’s evidence is supported by Sgt. Damien Andrew. Sgt. Andrew is a retired policeman. He was attached to the Traffic Section of Lae Central Police at the material time. He confirmed attending to the road accident involving the parties’ vehicles at Yalu village. After visiting the scene, speaking to the drivers and bystanders and drawing sketches, he compiled a police report. Andrew deposed during the investigation; the defendant’s driver admitted losing control of his vehicle and crossed over to the Plaintiff’s lane and caused the accident. He then charged the Defendant’s driver for negligent driving on a public road under the Road Traffic Act 2014. He was present in Court at the Lae District Court when the driver pleaded guilty to the Charge and was convicted and fined K500.00.

Defendant’s evidence


  1. The Defendant relies on the following affidavit evidence:
    1. Affidavit of Honki Konoiri filed 12th June 2023-Exhibit D1
    2. Affidavit of Dinesh Waripol filed 6th July 2023-Exhibit D2
    1. Affidavit of Reply of Honki Konoiri filed 28th July 2023-Exhibit D3
  2. This is the summary of the Defendant’s evidence. The Defendant’s driver, Honki Konoiri, is a generator mechanic employed by the Defendant. He was on duty travel on the day of accident. He deposed he was travelling towards Yalu bridge. He was driving at the rate of 70km per hour on his lane as one of the headlight beams was slightly dim. Approaching the scene of accident, he noticed the Plaintiff’s vehicle with just one light on the driver’s side was occupying the middle of the road. Surprised, he slammed the brakes and tried to steer away but it was too late resulting in the collision. He was injured and admitted to Pacific International Hospital. Sometime later after discharge from the hospital, he returned to the scene of accident to speak to the Traffic Investigation Officer. He deposed he gave a brief explanation of the accident although the Traffic Officer did not allow him to give detail account of the accident. He was then charged with negligent driving. He was approached by the Plaintiff to plead guilty. He felt sorry for the Plaintiff who was a Pastor, and this was the Plaintiff’s only vehicle, so he agreed. He pleaded guilty to the charge and was convicted. He wanted to assist the Plaintiff to have his vehicle fixed at the Defendants workshop, but he learnt later that the vehicle was sold to a car wrecker.
  3. He deposed the damage to the Plaintiff’s vehicle was minimal and not extensive as alleged by the Plaintiff, whereas the Defendant’s vehicle was extensively damaged and was a write off. As a result of the negligence driving of the Plaintiff, the Defendant suffered financial loss exceeding K 75,000.00.

Issues


  1. The issues for consideration are:
    1. Whether the Defendant is vicariously liable for negligence driving of employed driver, Honki Konoiri.
    2. Whether the Plaintiff is liable for negligence driving.
    1. How much damages is the successful party entitled to.

Burden of Proof


  1. The burden of proving the claim rests on the respective parties and they must discharge the burden on the balance of probabilities. Refer: Yooken Paklin v The State (2001) N2212, Jonathan Mangope Paraia v The State (1995) N1343, and Samot v Yame (2020) N8266.

Law on negligence


  1. The parties’ respective claims are 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.
  2. The elements of the tort of negligence particularly set out in the case Anis -v- Taksey (Supra) are:

Vicarious liability


  1. The Plaintiff pleaded that the defendant is vicariously liable for the actions of his employed driver Honki Honoiri. 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 people over whom the first person has control or responsibility. Refer Tirima -v- Angau Memorial Hospital Board (2005) N2779 and Kuima Security Services Ltd v Philip (2024) N11048.
  2. I will apply the law and legal principles as discussed above when determining the issues in this case.

Consideration of the Issues


  1. I will deal with the issues together as they are related. The proceedings concern a collision of two motor vehicles in the middle of the Okuk Highway at night. Who is mainly responsible for the accident where the drivers are blaming each other. The parties chose to rely on their respective affidavits without cross-examination. There are two versions of the facts. The drivers of the vehicles were not cross-examined to test the demeanour and credibility of their evidence. 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. In the absence of cross-examination to assess the demeanour and credibility of the deponents, the Court will apply common sense and logic based on proven facts.
  2. Both drivers have a duty of care towards each other and other users of the public road. The drivers have both denied liability. Plaintiff blamed the defendant’s driver for suddenly crossing over to his lane causing an accident, while defendant’s driver blamed the Plaintiff for taking up his lane.
  3. As I stated in the case Pure v Ewebi (2021) N9013, 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. Moreover, the evidence of a motor traffic charge and a certificate of conviction are relevant, not only relevant but are significant and add probative value to the primary evidence.
  4. In the present case, the Plaintiff deposed he was driving slowly at 50km/hour while the Defendant’s driver coming on highspeed suddenly crossed over to his lane and caused the accident. I accept the evidence of the Plaintiff that the defendant’s driver, Honki Honoiri, is the principal offender for reasons set forth in the judgment.
  5. Honoiri deposed he was driving at 70km/hour while the Plaintiff was cruising along at 50km/hour. That rate of speed (70km/hr) is high considering it was night and dark while approaching an oncoming vehicle on a bent.
  6. On impact, bystanders and passengers on the Plaintiff’s vehicle attacked the Defendant’s driver blaming him for causing the accident. Although it is not proof of negligence, the spontaneous reaction of the bystanders is relevant indicator of who may have been at fault.
  7. The defendant’s driver made admissions of fault, firstly to the police investigating officer and later to the Lae District Court. Honoiri denies making admission to the police investigating officer. As to the admission to the Court, he confirmed the admissions. However, he explained the reason he pleaded guilty to the charge was because he was asked by the Plaintiff and he felt sorry for the Plaintiff. He also deposed that he didn’t understand the consequences of guilty plea. I am not persuaded by his explanation. He was not threatened to admit liability. The Traffic Officer, Damen Andrew, deposed in his affidavit that the defendant’s driver made admissions of fault during the investigations. His admissions to the Traffic Officer were then recorded in the Road Accident Report. Though these admissions are hearsay, they are relevant.
  8. The traffic officer who investigated the accident deposed that it was the Defendant’s driver who was at fault, leaving his lane, cruising over to the Plaintiff’s lane and caused the accident. He drew a sketch indicating the point of impact in the Road Accident Report, which report is tendered into evidence. While the description of the accident and proposed action recorded in the Road Accident Report contains hearsay material, it is an official/administrative document/record, and its contents are relevant to corroborate primary evidence. The Accident Report was also produced by the author who was not cross-examined on the contents. I will give due weight to its contents as having corroborative value.
  9. The Defendant’s driver, Honki Honoiri, was charged with negligent driving under Section 40 of the Road Traffic Act 2014. He pleaded guilty and was convicted and fined. Although the defendant’s driver deposed, he pleaded guilty at the request of the Plaintiff as he was sorry for him (Plaintiff), I am not persuaded he didn’t mean to plead guilty. As stated earlier, he was not threatened to plead guilty. As an educated person, he would have appreciated the consequences of pleading guilty to the charge. He is employed by a big company operating in Lae and would have all the assistance including legal advice at his disposal. He had the opportunity to defend the charge but consciously chose to plead guilty.
  10. The evidence of the Defendant’s driver being charged with the traffic offence is relevant to the question of whether he is negligent. The fact that he is subsequently convicted is significant in establishing negligence, though not proof of negligence per se. This is discussed in the cases Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468.
  11. In Allen Anis v Dobon Taksey, Cannings J said this at paragraph 9 of his judgment:

“9. Even evidence that the driver of a vehicle has been charged with a traffic offence in connection with a collision, without proof of conviction, may be admissible and relevant to the question of whether that driver was negligent (Titus Banga v Madang Port Services Ltd (2011) N4302). Here there is evidence, not only that the first defendant was charged with traffic offences, but that he was convicted. The fact that he was convicted of driving without due care and attention is of special significance. It shows that a court of law, exercising the judicial power of the People, has been satisfied beyond reasonable doubt that the first defendant drove the Hyundai without due care and attention. That decision has not been overturned on appeal. Evidence of the convictions is therefore relevant to the question of whether the first defendant was negligent and it is of high probative value, in that it supports the proposition being advanced by the plaintiff, that the first defendant was negligent (Mathew John Westcott v MVIL (2008) N3565). When that evidence is combined with the evidence of the plaintiff's son and the passengers on the Dyna, and taking into account that the defendants adduced no evidence to rebut the ordinary and natural inference arising from the evidence adduced by the plaintiff, it is an easy task for the court to be satisfied that the first defendant was indeed negligent. He caused the collision. He was in the wrong. He negligently performed a U-turn. He failed to keep a proper lookout. He failed to meet the standards of a reasonable driver (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779, Litina Okevi v PNG Electricity Commission (2006) N3074).”


  1. The orders of the Court are made by a Court of competent jurisdiction and are on record. They are not set aside. The finding of guilt and conviction of the Defendant’s driver is significant proof adding probative value to the Plaintiff’s assertion that the Defendant’s driver is negligent.
  2. For the reasons given above, I conclude that the Defendant’s driver was negligent in his driving causing the accident. The evidence is clear; the Defendant’s driver was on duty on the day of accident. The Defendant is therefore vicariously liable for the negligence of its employed driver.

How about the Plaintiff? Is he liable for negligence driving.


  1. Although the Defendant’s driver is found to be negligent, how about the Plaintiff. There is allegation that he was driving in the middle of the road with just one light. As I stated earlier all drivers on public roads have a duty of care. The accident happened in the middle of the road although the sketch shows the point of impact took place on the Plaintiff’s lane. The sketch plan shows the Defendant’s vehicle left its lane and veered off sharply across the road towards the Plaintiff’s left lane when facing Nadzab. This is consistent with admissions made by the Defendant’s driver to the traffic officer and as recorded in the Road Accident Report that he lost control of the vehicle due to mechanical fault. It is also consistent with the testimony of the Plaintiff that he was suddenly hit by the Defendant’s vehicle which came across on high speed. It is also consistent with the damage caused on impact. On impact, the Defendant’s driver sustained serious injuries, and his Nissan Utility was extensively damaged when compared with the Plaintiff.
  2. In the circumstances, there is insufficient evidence to find the Plaintiff was responsible for the collision. I maintain my finding that the principal offender is Honki Honoiri, the Defendant’s employed driver. The result is that the Defendant’s Crossclaim shall be dismissed.

Contributory Negligence


  1. Does this totally relieve the Plaintiff from contributory negligence. In my view, the Plaintiff must take some responsibility too. The accident happened at night. The accident took place in the middle of the road although on the Plaintiff’s lane. The point of impact was at a bent section of the highway. The Plaintiff’s vehicle was on the outer section of the curve while the Defendant’s was proceeding on the inner bent. If the Plaintiff took defensive action to steer away from the right to the far left, giving sufficient space to the oncoming vehicle, he would have minimised the impact. For this reason, I would apportion liability for contributory negligence at 20/80 in favour of the Plaintiff.

Damages


38. Whilst the issue of liability is settled in the Plaintiff’s favour, 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 (1995) 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, and Samot v Yame (2020) N8266.


39. 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:

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


  1. K109,772.49 for replacement vehicle.
  2. General damages
  1. Special damages
  1. Loss of income
  2. Interest at 8%
  3. Costs

Loss of the Motor vehicle


41. The Plaintiff pleaded that his vehicle was extensively damaged. Parts of the vehicle were ripped off by thieves, and he suffered complete loss of the vehicle. The vehicle was sold as a wreck for K1,000.00. He now claims the sum of K109, 772.49 being the replacement value of the vehicle, Toyota Hilux, Single Cab. He provided quotation for a new vehicle in support of his claim. For the Court to consider his claim it is necessary for the Plaintiff to provide a mechanical and repairs report showing the extent of the damage. If the vehicle is damaged beyond economic repairs, that evidence must come from a motor dealer.


  1. In the present case, the Plaintiff has not provided a mechanical report or repairs quotation showing evidence that his vehicle was damaged beyond economic repairs. The Plaintiff has not produced a pre accident value of his motor vehicle. The Plaintiff has not produced any evidence of the age and condition of the vehicle prior to the accident. He has not produced when he acquired the vehicle and the price of acquisition. The onus is on the Plaintiff to prove his claim. Plaintiff made assertions only with very little evidence. The only evidence is his word and photographs of the damaged vehicle and a quotation from Ela Motors for a new vehicle. I am reluctant to make an award in the amount claimed based merely on the quotation of a new vehicle in the absence of a Mechanical Report verifying that the vehicle was damaged beyond economic repairs.
  2. Should the Plaintiff be sent away empty handed without remedy. As held in Jonathan Paraia v The State (supra) and applied in Samot v Yame (supra), “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.”
  3. In the present case, the Plaintiff produced some photographs of the damaged condition of the vehicle. He also particularised in the statement of claim details of damage done to the vehicle. He gave evidence that parts of the vehicle were ripped off by thieves, rendering the vehicle beyond economic repairs and the wreck was sold only for K 1,000.00. This loss was directly attributed to the negligence of the defendant’s driver. Although the Plaintiff has not provided evidence of pre accident value, I am prepared to make an award because the vehicle was in working order at the time of the accident. In my view, a reasonable sum would be 30% of the amount quoted for a new vehicle. This amounts to K32,931.75. I deduct K1,000.00 for the wreck and make an award of K 31,931.75.

Special Damages


  1. The Plaintiff pleads a claim for special damages. However, he did not plead the amount. He offered no evidence supporting a claim under this head. There shall be no award.

General Damages


  1. The Plaintiff submitted that he is entitled to general damages for pain and suffering. The Court has found the Plaintiff is entitled to damages for breach of duty of care. Since 17th May 2021, the Plaintiff has been deprived of possession and ownership. The vehicle was hired out in a normal hire business transporting people and for personal use. As a result, the Plaintiff could not use the vehicle in his daily activities, especially in his hire business. His business suffered because of loss of possession and use of the vehicle. Taking all these factors into account, the Court shall make an award that is fair and equitable to do justice in the circumstances. What should be a fair and equitable amount.
  2. In Samot v Yame (supra) the Court awarded K 6,000.00 damages for hardship arising out of a motor vehicle accident involving the Plaintiff’s PMV bus.
  3. In Russel Mel Wassey v Jack Avir (2025) N11376 this Court awarded K10,000.00 for hardship and inconvenience in respect of complete loss of the Plaintiff’s Toyota Land Cruiser 10-Seater, a vehicle used for hire business.
  4. In my view the sum of K10,000.00 is reasonable, and I shall make an award for that sum.

Loss of Income


  1. The Plaintiff pleads economic loss. The law on economic loss is settled in this jurisdiction. A claim for loss of income must be supported by proper documentation, including tax and accounting details, and bank statements. Refer: Peter Wanis v The State (1995) N1250, Graham Mappa v PNG Electricity Commission (1995) PNGLR170, Kekeral Farming v Queensland Insurance (1995) PNGLR 405, and Marshall Kennedy v Coca Cola Amatil (2011) N4946.
  2. The Plaintiff deposed that the vehicle was used for his hire business. Prior to the loss of the vehicle, he transported cargo and passengers for fare at the rate between K 30 and K 70.00 per trip. He submitted for a sum of K10,000.00. However, he has produced no records of any income prior to the accident. He produced no bank statements to confirm the deposits or tax returns. I will make no award.

Total Award


  1. The total award shall be K41,931.75.

Interest


53. 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, (31/08/2021) to date of judgment (4/11/ 2025) for a period of 1,525 days. Interest is calculated as follows:


K 41,931.75 x 8/100 = K 3,354.54 p.a num

K 3,354.54 /365 days = K 9.19 per day

K 9.19 x 1,525 days K 14.014.75


54. The total award inclusive of interest is K55,946.50. This amount shall be deducted to allow for contributory negligence at 20 %. After allowing for deduction, the Plaintiff is entitled to judgement of K44,757.20.


Costs


53. The Plaintiff is claiming cost. The Court has a discretion to award costs by virtue of its ancillary powers under Order 12 Rule 1 of the National Court Rules. I will allow costs in favour of the Plaintiff subject to 20% deduction after taxation.


Orders


54. The Court orders that:


  1. Judgment is entered for the Plaintiff in the sum of K44,757.20 inclusive of interest.
  2. Post Judgment interest shall accrue at the rate of 8% until settlement.
  3. The Defendant shall pay 80% of the Plaintiff’s costs after taxation.
  4. The Defendant’s crossclaim is dismissed.
  5. Time is abridged.

Lawyers for the plaintiff/cross-defendant: Solwai Lawyers
Lawyers for the defendant/cross-claimant: Albright Lawyers

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