N11586
PAPUA NEW GUINEA
[NATIONAL COURTOF JUSTICE]

WS NO. 713 OF 2020

BETWEEN:
MICHAEL KULAME
Plaintiff/First Cross-Defendant

AND
ESKIMO PU
Second Cross-Defendant

AND
OMBO SINIBO
First Defendant

AND
SEASIDE DEVELOPMENTS LIMITED trading as PNG CONCRETE AGGREGATES
Second Defendant/Cross-Claimant

LAE: DOWA J
20 JULY, 20 SEPTEMBER 2023; 14 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 driver 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
Mapu v Mainland Holdings Limited (2025) N11572  

Counsel
L Vava, for the plaintiff
J. Langah, for the defendants 

JUDGMENT

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

2.	The Plaintiff/first cross Defendant claims damages against the first and second Defendants /cross claimant, for damage done to his Toyota Coaster Bus caused by negligent driving of the first Defendant along the Air Corps Road, Lae city, Morobe Province. 

3.	The second Defendant /cross Claimant denies liability and crossclaims against the Plaintiff and the second cross Defendant, for loss for damage done to its motor vehicle caused by negligent driving of the second Cross defendant. 

Background

4.	The Plaintiff is the registered owner of Toyota Coaster Bus Registration No. P-6234J. On 7th January 2019, the Plaintiff’s bus collided with the second Defendant’s motor vehicle, Howo Truck, Registration No. CAZ 752. along the Air Corps Road, Lae city, Morobe Province. The Plaintiff alleges the accident was caused by the negligent driving of the first Defendant. The Second Defendant denies the claim and filed a cross claim against the Plaintiff alleging negligence on the Plaintiff’s employed driver, the second cross defendant.

Plaintiff’s Evidence 

5.	At the trial, the Plaintiff called three witnesses and relied on the following affidavit evidence: 

a.	Affidavit of Michael Kulame filed 2nd December 2022- -Exhibit P1
b.	Affidavit of Michael Kulame filed 26th April 2023 -Exhibit P2
c.	Affidavit of Eskimo Pu filed 30th January 2023-Exhibit P3
d.	Affidavit of Eskimo Pu filed 26th April 2023-Exhibit P4
e.	Affidavit of Sgt. Joe Upi filed 30th January 2023-Exhibit P5

6.	This is the summary of the Plaintiff’s evidence. The Plaintiff is self-employed, and a PMV operator in the city of Lae. He is the registered owner of the Toyota Coaster Bus, Registration No. P6234J. On the afternoon of 7th January 2019, the Plaintiff’s Bus driven by Eskimo Pu, was travelling from the direction of Nadzab along the Air Corps Road towards Lae Market. At the Laurabada Avenue junction, the Plaintiff’s bus collided with the second Defendant’s Howo Truck, Registration No. CAZ 752. The Plaintiff’s evidence from his witnesses is that the Plaintiff’s driver was cruising along the main road when suddenly the second Defendant’s vehicle drove into the main road from Laurababa Avenue and caused the accident. That the first Defendant failed to give way to the Plaintiff’s driver who had the right of way. The Plaintiff’s driver applied his brakes, but it was too close, and he tried to avoid but there were power poles nearby making it unsafe. As a result, the Plaintiff’s bus collided with the second Defendant’s Truck on its right end trailer.

7.	 Police arrived at the scene of the accident. Sgt. Joe Upi, a senior traffic officer based in Lae Central Police Station conducted the investigation into the accident. After interviewing the two drivers and other witnesses, Police charged the first Defendant with negligent driving under section 17 of the Motor Traffic Act. The first Defendant was found guilty after trial and was convicted and fined K 300.00 by the Lae District Court on 7th February 2020.

Defendants Evidence.

8.	The Defendants offered no evidence, after their application to tender their affidavits without calling the deponents was refused. This was after the witnesses failed to turn up in Court on the day of trial.

Issues

9.	The issues for consideration are:

a.	Whether the Defendants are liable for negligence driving of the first Defendant. 
b.	Whether the Plaintiff’s driver is liable for negligence driving.
c.	What amount in damages is the successful party entitled to.
d.	Whether there is contributory negligence. 

Burden of Proof

10.	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

11.	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.

12.	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)	The 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.

Vicarious liability

13.	The Plaintiff pleaded that the second Defendant is vicariously liable for the actions of first Defendant, Ombo Sinibo. 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.

14.	I will apply the law and legal principles as discussed above when determining the issues in this case.

Consideration of the Issues: Who is liable for the accident.

15.	Although the Plaintiff’s evidence on liability is not challenged, the Court must be satisfied on the balance of probabilities, that it was the first Defendant's negligent driving that caused the accident. 

16.	This case involves collision of two vehicles on a public road. Both drivers have a duty of care to each other and other users of the road and bystanders.

17.	As I stated in the case Pure v Ewebi (2021) N9013, and more recently in Mapu v Mainland Holdings Limited (2025) N11572, 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.

18.	Turning to the present case, the Plaintiff’s driver was on the main road driving towards the Lae Market along the Aircorps Road. After leaving the roundabout near Freddy’s Snack bar and cruising along, the Plaintiff noticed that the second Defendant’s Truck driven by the first Defendant suddenly cut into the main road from Laurabada Avenue and turned right facing the roundabout. The Plaintiff’s bus hit the trailer of the truck which was still on the Plaintiff’s left lane. The Plaintiff’s driver could not turn far left to avoid the accident as there is a power post next to Dunlop Tyres. He applied the brakes, but it was too close as the trailer of the truck angled in and hit the bus as it drove off. The Plaintiff’s driver blamed the first Defendant for cutting into the main road without regard for him who had the right of way. The first defendant did not present any evidence, but the explanation given to the Traffic Investigating Officer as recorded in the Road Accident Report states that he saw the Plaintiff’s bus some distance away when he crossed the road and made a right turn.

19.	The Traffic Officer, Sgt. Joe Upi, who investigated the accident deposed that the first Defendant was at fault. He reasoned that the first Defendant was proceeding from a feeder road and should have given way to the Plaintiff’s bus which had a right of way on the main road. He charged the first defendant for negligent driving under section 17 of the Motor Traffic Act. He was found guilty of the charge, convicted and fined K300.00 by the Lae District Court on 7th February 2020. 

20.	The traffic officer who investigated the accident drew a sketch indicating the point of impact in the Road Accident Report, which report was 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.

21.	The evidence of the first Defendant being charged with the traffic offence is relevant to the question of whether he is negligent. The fact that he is subsequently convicted after trial 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.

22.	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).”

23.	 As I stated in Mapu v Mainland Holdings (supra) 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.

24.	I accept the evidence of the Plaintiff’s witnesses and find the first Defendant was negligent. The first defendant proceeded to the main road from a feeder road. He should have waited until the road was clear before cutting into the road. He overestimated the distance of the oncoming bus and his ability to steer away in time to avoid contact, especially with the type of vehicle he was driving. The truck would be a lot slower in manoeuvring its way out.

25.	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 second Defendant is therefore vicariously liable for the negligence of its employed driver, the first Defendant.

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

26.	  The second Defendant filed a cross claim alleging that the Plaintiff’s driver was at fault in driving without due care and attention, at a rate of speed that was excessive, failing to slow down or take evasive steps to avoid the accident. The Defendants did not present any evidence to prove its crossclaim. 

27.	In the circumstances, there is insufficient evidence to find the Plaintiff’s driver was responsible for the collision. I maintain my finding that the principal offender is the first Defendant. Ombo Sinibo, the Defendant’s employed driver. The result is that the second Defendant’s Crossclaim shall be dismissed.

Contributory Negligence

28.	Does this totally relieve the Plaintiff from contributory negligence. In my view, the Plaintiff’s driver must take some responsibility too. The accident took place in the middle of the road although on the Plaintiff’s lane. All drivers have a duty of care. The Plaintiff’s driver when noticing the Defendant’s Truck cut into the main road he should have slowed down, applied his brakes or take evasive action to avoid the collision. For this reason, I would apportion liability for contributory negligence at 60/40 in favour of the Plaintiff.

Damages

29.	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.

30.	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.)”

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

a)	K 50,000.00 for pre accident value of the bus.
b)	General damages
c)	Special damages
d)	Loss of income
e)	Interest at 8%
f)	Costs

	Loss of the Motor vehicle.

32.	The Plaintiff submits his vehicle was extensively damaged and is a write off. He claims K 50,000.00 being pre accident value of the vehicle. It is not easy to place a value on the bus at the time of the accident. However, 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.” In the present case, there is evidence from Ela Motors that the vehicle was damaged beyond economic repairs. Ela Motors have also assessed and fixed the pre accident value of the vehicle at K 50,000.00. The bus is a 2014 Model and was five years old at the time of accident. Based on the pre accident value and allowing for natural wear and tear I shall award K 40,000.00 being for the loss of the bus. 

Special Damages

33. The Plaintiff makes a claim for special damages. However, he did not plead the claim. There shall be no award.

         General Damages
34.	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 January 2019, the Plaintiff has been deprived of possession and ownership. The bus was used for ferrying passengers for fees. As a result, the Plaintiff could not use the vehicle in his daily activities, especially in his PMV 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.

35.	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. 

36.	In Russel Mel Wassey v Jack Avir (2025) N11376 this Court awarded K 10,000.00 for hardship and inconvenience in respect of complete loss of the Plaintiff’s Toyota Land Cruiser 10-Seater, a vehicle used for hire business. 

37.	In Mapu v Mainland Holdings (supra) this Court awarded K 10,000.00.

38.	 In the present case, there is insufficient evidence. In my view, the sum of K 5,000.00 is reasonable, and I shall make an award for that sum. 

Loss of Income

39.	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) PNGLR 170, Kekeral Farming v Queensland Insurance (1995) PNGLR 405, and Marshall Kennedy v Coca Cola Amatil (2011) N4946.

40.	The Plaintiff pleaded that the vehicle was used for his PMV business. He claims K 60,480.00. 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. To his credit the Plaintiff produced evidence of the bus being used as a PMV. The Plaintiff has produced a PMV License to operate. In the circumstances I will allow the claim. The Plaintiff’s evidence shows prior to the loss of the vehicle, he was earning an average net income of K 1,620.00 per month. A reasonable period for assessment would be six months and the total loss for that period is K 9,720.00. I will make award of K 9,720.00.

Total Award

41.	The total award shall be K 54,720.00.

         Interest

42.	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, (07/09/2020) to date of judgment (14/11/ 2025) for a period of 1,893 days.  Interest is calculated as follows:

	K 54,720 x 8/100					=       K 4,377.60 per annum
	K 4,377.60 /365 days				   =    K 11.99 per day
	K 11.99 x 1,893 days				          K 22,697.07

43.	The total award inclusive of interest is	K 77,417.07. This amount shall be deducted to allow for contributory negligence at 40 %. After allowing for deduction, the Plaintiff is entitled to judgement of K 46,450.24. 	

Costs

44.	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 40% deduction after taxation.

	Orders

45.    The Court orders that:

1.	Judgment is entered for the Plaintiff in the sum of K 46,450.24 inclusive of interest.

2.	Post Judgment interest shall accrue at the rate of 8% until settlement.

3.	The first and second Defendants are jointly and severally liable to settle the judgment debt.

4.	The second Defendant’s crossclaim is dismissed.

5.	The Defendants shall pay 60% of the Plaintiff’s costs after taxation. 

6.	Time is abridged.

Lawyers for the plaintiff/cross-defendant: Luke Vava Lawyers
Lawyers for the defendants/cross-claimant: Albright Lawyers