N11699

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 607 OF 2022

BETWEEN:
HIGHLANDS PRODUCT LTD trading as ZENAG CHICKEN
Plaintiff

AND
POIYA KAPIE, EMMANUEL KAPIE & MARTO KAPIE trading as KAWANE TRANSPORT SERVICES
Defendant

LAE: DOWA J
12 JUNE, 6 AUGUST, 19 SEPTEMBER 2024
13 FEBRUARY 2026

NEGLIGENCE – motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent -Whether dismissal of traffic charge sufficient to establish negligence. The necessity of calling primary evidence to prove negligence.
Held: 
Defendant’s driver not liable- proceedings dismissed with costs.

Cases cited
.
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
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
Mapu v Mainland Holdings Limited (2025) N11572

Counsel

J Langah for the plaintiff
T Berem for the defendants 

JUDGMENT

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

Facts

2.	The Plaintiff is the registered owner of motor vehicle, Toyota Hilus, Reg. No. SAD 807.  Its vehicle collided with the defendant’s vehicle at the round-about intersection of Air Corps Road and Milfordhaven Road, city of Lae (Snack Bar) on 31st October 2022.  The Plaintiff’s vehicle driven by one Ben Tule was on the inside lane while the defendant’s truck, a Prime Mover Reg. No. LBM 898, driven by one Anthon Kelly, was on the outer lane (left).  The defendant’s vehicle took off first, followed by the Plaintiff’s vehicle.  It is alleged, whilst both vehicles were turning the round-about facing Lae Market, the back end of the defendant’s truck /trailer encroached onto the Plaintiff’s lane and caused damages to the left side of the Plaintiff’s Toyota Hilux.  The Plaintiff alleges that the accident was caused by the negligence of the defendant’s driver and thus files recovery proceedings seeking damages.

Plaintiff’s Evidence 

3.	At the trial, the Plaintiff relied on the following affidavit evidence: 

a.	Affidavit of Ben Tule filed 21st March 2023 -Exhibit P1
b.	Affidavit of Johnah Langah filed 26th March 2024-Exhibit P2
c.	Affidavit of Ben Tule filed 10th June 2024
d.	Affidavit of Robin Pomaleu filed 12th July 2023

4.	The Deponents Ben Tule and Robin Pomaleu were cross-examined. This is the summary of their evidence. On the afternoon of Monday 31st October 2022, the Plaintiff’s vehicle driven by Ben Tule, was cruising along Milfordhaven Road towards Fredis Snack Bar roundabout, taking the inner lane of the roundabout facing the main market. He then noticed Defendant’s truck driven by Anthony Kelly taking a short turn on the outer lane coming towards the Plaintiff’s vehicle on the inner lane. As the Defendant’s truck was making the turn towards the market, the backend of the truck encroached onto the Plaintiff’s lane and hit the Plaintiff’s vehicle on the left end, causing damage. The total cost for the damage was assessed at K20,009.75.
5.	The accident was investigated by traffic officer of the Lae Central Police Station. Tule was charged with negligent driving. The traffic charge was dismissed by the Lae District Court on 4th August 2023 after a contested hearing.

Defendants’ Evidence

6.	The Defendants relied on the Affidavit of Marto Kapie filed 20th September 2023-Exhibit D1. The deponent was cross-examined. In addition, the Defendants called Anton Kelly, the driver of the Defendants’ truck, Howo Sino Prime Mover, Registration No LBM 898, who gave oral evidence and was cross-examined. Kelly testified that he was proceeding from Milfordhaven Road towards the roundabout intersection of Aircorps Road and Milfordhaven Road at the Freddy’s Snack Bar. He was taking the outer lane facing the main market. He was proceeding ahead of the Plaintiff’s vehicle which was taking the inner lane. Unknown to him, the Plaintiff’s driver without taking any precaution drove towards the back end of his truck. He deposed the Plaintiff driver drove without due care and attention.

7.	The accident was reported and Police investigated the accident and charged the Plaintiff driver with negligent driving.

Issues

8.	The main issue for consideration is whether the Defendants’ driver, Anthon Kelly is negligent.  

Burden of Proof

9.	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
10.	The Plaintiff’s claim 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.

11.	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.

12.	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.

13.	For the Plaintiff to succeed, the Court must be satisfied on the balance of probabilities, that it was Defendant driver’s negligent driving that caused the accident. 

14.	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.

15.	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.

16.	Turning to the present case, the evidence shows both drivers were driving along the Milfordhaven Road. When reaching the roundabout both drivers turned right heading towards the main Lae Market. The Defendant’s truck was on the outer lane while the Plaintiff’s driver was cruising along the inner lane. The defendants’ truck was travelling ahead of the Plaintiff’s vehicle. 

17.	While the Plaintiff submitted that the Defendants’ driver was negligent by failing to have a proper look out, there is insufficient evidence to establish negligence on the part of the defendants’ driver. The Defendants’ driver was driving ahead of the Plaintiff’s vehicle. The duty to have a proper lookout rested with the Plaintiff’s driver who was driving behind him. It was the back end of the truck that hit the left front of the Plaintiff vehicle. It was the Plaintiff’ driver who should have taken care when cruising behind the truck which was travelling ahead of him.

18.	During examination, the Defendant’s driver said he did not know of the collision until he was alerted by bystanders a few meters from the scene of the accident. As he was looking ahead away from the Plaintiff’s vehicle, he cannot be blamed for failing to have a proper look out for the vehicle that was coming behind him.

19.	The accident was investigated and the Plaintiff’s driver was blamed by the traffic officers for causing the accident. He was charged with negligent driving under Section 40 (1) of the Road Traffic Accident Act 2014. Although the charge was dismissed, it does not necessarily relief the Plaintiff’s driver of negligent driving, neither does it attribute the cause of accident squarely on the Defendant’s driving. What is clear though is that the Plaintiff’s driver was travelling behind the Defendant’s truck and common-sense dictates that the Plaintiff’s driver should have been more careful than he did.

20.	The evidence of the Plaintiff’s driver being charged with the traffic offence is relevant to the question of whether he is negligent. The fact that he is subsequently dismissed after trial is not proof of innocence nor is it significant in establishing negligence on the part of the Defendant’s driver. 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.

21.	The Plaintiff has the burden to prove negligence of the Defendant’s driver on the balance of probabilities. I am not satisfied that the Plaintiff has discharged the burden of proof. I am not satisfied that the Defendant’s driver was negligent in his driving. I find the Defendants not liable.

22.	For the reasons given above, the Plaintiff’s proceedings shall be dismissed with costs.

	Orders

23.      The Court orders that:

1.	The Plaintiff’s proceeding is dismissed.
2.	The Plaintiff shall pay the Defendants’ costs. 
3.	Time for entry of judgment is abridged.
______________________________________________________________
Lawyers for the plaintiff: Albright Lawyers	
Lawyers for the defendants: Berem Lawyers