IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 78 of 2014

BETWEEN:	Kebuti Buraieta for and on behalf of all of Rooro’s surviving dependents
Plaintiff

AND:	Rourou Teem
1st Defendant

AND:			George Tiarite Kwong t/a Taotin Trading
			2nd Defendant

AND:			Meteka Matarake
			Third Party

Date of Hearing:	16 November 2023, 28 April 2025, 5-6 May 2025 (written submission)
Date of Judgment:			11 June 2025

Appearances:		Ms. Taoing Taoaba for the Plaintiff
                                            Ms. Henty Pine for the 1st Defendant
				Ms. Botika Maitinnnara for 2nd Defendant
				Ms. Marewe Babera for Third Party

JUDGMENT- Liability

Introduction

1.	By Writ of Summons, the plaintiff is suing for herself and all of the late Rooro Buraieta’s surviving dependents. She sues the first defendant for compensation for the loss of expectation of life and other damages incurred as a result of the first defendant’s negligence. The plaintiff also claims that the second defendant is vicariously liable as the employer of the first defendant.

2.	The plaintiff’s deceased son, Rooro Buraieta, was employed by Wishing Star Company as a cargo deliveryman. At the time of the incident, Rooro was driving a vehicle to deliver goods when the first defendant collided with Rooro’s motorbike, resulting in his death. The first defendant was operating a truck owned by the second defendant. The plaintiff claims that the first defendant was driving the truck in the course of his employment at the time of the crash.

3.	It is essential to note that on the last day of the hearing, Counsel for the third party withdrew from representing him due to his lack of cooperation with his lawyer. The matter was adjourned several times to secure his attendance, but without success. When the case was first heard in 2023, only his counsel was present; she informed the court that she still had not received instructions from her client. Despite the counsel's numerous efforts, including a visit to his house, she could not obtain any instructions. Counsel ultimately withdrew from representing him on April 28 of this year. However, before Counsel’s withdrawal, she had completed cross-examining the first defendant. Plaintiff’s Counsel informed this Court that their case is against the first and second defendants, so it does not concern them whether the third party was involved. Counsel for the second defendant also stated that the involvement of the third party is up to the first defendant. Counsel for the first defendant left the decision to this Court. Given that the third party was not interested in the case, the hearing continued without his or his lawyer’s presence. Fortunately, the only part they missed was the closing submissions.

4.	It is also important to note that the Counsel for the second defendant failed to attend on the date fixed for the closing submission without providing any reason.  

Case for the Plaintiff

5.	The plaintiff argues that the first defendant does not dispute liability; the only issue is that the third party, Meteka Matarake, failed to inform him that the truck’s brake was defective and unfit for operation. 

6.	Furthermore, the plaintiff asserts that the second defendant did not dispute that the brake was defective. The second defendant blamed the first defendant for the accident, as he was driving. However, the second defendant did not present any witnesses to refute the claim against him; thus, he is also liable for compensation for the negligent act of his employee that occurred in the course of employment.

7.	The plaintiff also argues that the first defendant’s guilty plea in the criminal case is relevant to this civil case, as it demonstrates his negligent act in colliding with her deceased son. 

8.	Based on the above, Counsel argues that both the first and second defendants are liable for a compensation claim. 

Case for the First Defendant

9.	The first defendant asserts that he was acting within the scope of his employment when the unfortunate accident occurred. His evidence indicates that he was driving back from Teaoraereke to Betio after delivering cargoes while operating the company’s truck. He stated that the truck’s brakes were not functioning properly and that he had to step on them several times for them to engage. When he attempted to brake the truck, it swerved to the opposite side of the causeway where the motorcycle was coming. He crashed into the motorcycle, resulting in the death of its driver. His Counsel submits that although the first defendant was found to be speeding at the time of the accident, this was not the sole cause of the accident. The first defendant claimed that he was unaware the truck’s brakes were faulty and that no one had informed him of this fact either. His defence is that the brakes were defective and he was not made aware of it.

10.	The first defendant applied to add a third party to the case. The third party was a mechanic at the time of the incident and was also employed by the second respondent. The first defendant claims that the third party failed to inform him of the faulty brake.

11.	He claimed that it was his employer’s responsibility to ensure that the truck was safe for use by his employees. The second employer cannot escape liability merely because an employee drove the truck; what he did was work-related.  In support of their argument, Counsel referred to the cases of Lister v Hesley Hall Ltd [2001] 2 AC 215 and Mohamud v Wm Morrison Supermarkets [2016] UKSC 11.

Case for the Second Defendant

12.	Counsel for the second defendant cross-examined the first defendant, and this is their case that came out;
-	 The first defendant was first employed by the second defendant in 2008, working with containers and transferring goods from them.  
-	When asked about being prohibited from taking the company car, he replied, ‘I don’t know, but we were all assisting in driving the truck. All of us can drive when we have a driver’s license.’  
-	He was also questioned about the company’s policy before taking the company vehicle since he only worked in the yard. He responded that he was aware of the policy but saw that the truck was loaded with cargo and noticed there was no driver, so he hopped in to take it.  
-	When asked whether he confirmed that the truck was safe before using it, he stated he knew he should ask but assumed the truck was safe since it was loaded with cargo and there were no mechanics in Betio.  
-	The accident occurred when the truck returned to Betio from Teaoraereke. On the way to Teaoraereke, the first defendant said he drove slowly because the truck was fully loaded with cargo, and he did not notice any issues with the brakes. Upon their return, he said he accelerated on the causeway, as the truck was light and no longer had cargo.  
-	When asked why he braked the truck, he replied that he needed to use the brakes because there were buses in front of him, so he braked to slow down. He saw the motorbike but almost hit the bus, and the truck swayed to the other side of the causeway where the deceased was coming from, and he was hit and died instantly.

Case for the Third Party

13.	Counsel for the Third Party cross-examined the first defendant and the following evidence came out;
-	 The first defendant stated that there were no mechanics at the Betio branch where he worked; all mechanics operated out of the Teaoraereke Office.
-	He also mentioned that Meteka, Third Party, was not the only mechanic employed by their company; there were many others.
-	He did not know who worked on the truck since all mechanics were at Teaoraereke. When asked if Meteka, third party, worked on the truck, he replied ‘no.’
-	He had worked with Taotin (the second defendant) for 15 years and understood that before using the company vehicle, there should be a notice confirming that the vehicle was safe to use; however, he said no one informed him of that.
-	When Counsel informed him that he took the truck without the permission of the employer or mechanic, he stated that the supervisor told him to take the truck.

Findings

14.	Based on the evidence presented, I accept the plaintiff’s case against the first defendant; his negligent actions caused the crash on the causeway when he collided with Rooro on his motorbike, resulting in Rooro's death. The first defendant did not deny that his actions led to the motorbike driver’s death. I also accept the relevance of the facts stated in the criminal case against him for this same incident, where he pleaded guilty to careless driving causing death. The first defendant’s response regarding the use of this criminal case is not relevant, as it only focuses on the distinguishes between criminal and civil cases concerning the burden of proof and the purposes of proceeding in criminal cases, which tend to focus on punishing the wrongdoer and protecting society, while civil cases aim to compensate victims for harm and loss.

15.	The facts stated in the sentence judgment (High Court Criminal Case 41 of 2012) are as follows;
“The accused was driving a truck on the Dai Nippon Causeway on 25 November 2011 at about 80 kmph, which was above the speed limit on the causeway of 60 kmph. He swayed to the other side of the road onto the oncoming traffic because the rear of the truck moved sideways. In so doing, he collided with a motorcycle driven by the deceased. The victim died instantly. The accused’s manner of driving was a combination of excessive speed and carelessness.”

16.	Although I accept the first defendant’s evidence, since it was not denied, that, even if his job is to offload cargoes from containers, he can also assist in driving the company vehicle since he holds a valid driver’s license, I do not hold the second defendant liable. This is because the first defendant’s defence was that his negligent action was not the whole reason for the accident, the truck’s brakes were defective and he was not informed about it by the mechanic (third party). However, it emerged from his own evidence, when cross-examined by the Counsels for the second defendant and third party, that there was a company policy or instruction regarding the use of the company vehicle, which required a driver to first ensure that the vehicle was fit for use before taking it. The first defendant’s responses during the cross-examination show that he took the truck without first ensuring its safety. He stated that he assumed the truck was safe to use when he saw that it was loaded with cargo. 

17.	I accept that the first defendant’s action did not follow the company’s policy that before taking the company’s vehicle, he must ensure that the vehicle is fit for use. The first defendant claimed that he was directed by his supervisor to take the truck, but this was a new defence that emerged only once, when he was cross-examined by the Counsel for the third party, and it was not pleaded in his defence filed with the court, nor was it stated in his affidavit. This evidence should be ruled out and not considered.

18.	There is also clear evidence that emerged from the first defendant’s responses during cross-examination indicating that the third party, the mechanic Meteka, was not responsible for the truck in question and that he was not at Betio when the first defendant took the truck. Furthermore, all mechanics, including the third party, were not at Betio when he took out the truck. 

19.	It is evident from the evidence that the first defendant took the company truck without following the company’s policy, which states that before using the vehicle, he must ensure that the truck is safe for use. There is no doubt that this policy was implemented to prevent accidents from the use of the company truck.

20.	The third party is not responsible for the accident, nor was he connected to the first defendant’s negligent actions.

Summary

21.	 In light of the above, I find the first defendant liable for negligence, which caused the death of one Rooro Buraieta. 
22.	The second defendant and third party are not liable. 
23.	Cost is awarded to the plaintiff against the first defendant, to be agreed or taxed. 
24.	The case is to be listed again to determine damages if no agreement is reached.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice