Dumni v Manager, Awa Bakery Pty Ltd [2000] PGDC 15; DC136 (12 May 2000)

DC136

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 270 OF 1999

BETWEEN
DUPAI DUMNI

Complainant

AND

THE MANAGER, AWA BAKERY PTY LTD

First Defendant

BERNARD MALU

Second Defendant

Mt Hagen: R Appa
2000: 30 March, 12 May

JUDGMENT

This is a claim to recover loss of income from the complainant's PMV operation. The complainant claims that on 21st August 1999 his 15 Seater PMV bus Reg. No. P.7891 had to be grounded because his driver, one Peter Kintika, was threatened by certain of his enemies who were driven around by the 2nd Defendant in a vehicle owned by the 1st Defendant's company.

The evidence of the complainant was that on 21st of June 1999 his driver was driving the PMV bus to Nebilyer route and was met by the 2nd Defendant on the way with some people from the enemy tribe on board the vehicle driven by the 2nd Defendant, a Kijang Reg. No. HAC-735 heading for Hagen. On the same day in the afternoon driver Peter Kintika drove to Highlands Bakery and met the 2nd Defendant with the same people on board the Kijang. Mr. Kintika then drove over to Mendi - Wabag PMV bus stop to load passengers and he saw the 2nd Defendant driving past with same people on board.

After seeing this complainant said his driver became so scared that he quit driving for him and as the result his bus was not on the road and he made loss from his PMV operation and sued the 1st Defendant for the use of it's vehicle by the 2nd Defendant who was an employee and conspired with the enemies of his driver.

In defence, 1st Defendant said it did not authorize the use of its vehicle for any unlawful activities so was not liable. The 2nd Defendant said in evidence that on that day the 1st Defendant gave him permission to use the vehicle to attend funeral at Kaupena and he loaded his family there and on his return picked up some people from his wife's clan not knowing anything about the enemies. He denied conspiring with enemies of Mr. Kintika or was not aware of any threats made.

I have considered the evidence from both sides and am of the view that this claim is too remote. I find from the evidence that there was no actual or even apparent threats held out to the complainant's driver. The mere fact of meeting at these 3 different places constituted no threats. It was probably by sheer coincidence. Complaint reported the matter to Police but no action was taken, apart from the arrest of the suspect.

I also find no evidence to show that the 2nd Defendant had conspired with enemies of Mr. Tintika to attack the latter. As for the 1st Defendant, in my view was wrongly named as a party. There is no evidence on what part it played in conspiring with the enemy tribe to attack Mr. Tintika by providing its vehicle. In fact the use of the vehicle by the 2nd Defendant was for private business and was not doing any duties for the Company/Employer. How could it be held liable vicariously?

The other question I ask is if complainant's driver felt scared to drive any longer why couldn't he engage or employ another driver who is neutral to driver for him and continue his PMV operation without making losses. I am sure there are many drivers around. I would have thought the complainant had contributed to his own losses by making wrong decision to ground his bus. There is no evidence that the complainant had any enemies threatening him or his bus.

If the Complainant wishes to, he could sue his driver for being negligent in ceasing to drive for him which resulted in loss of income.

Under the given circumstance I am unable to find for the complainant and I must dismiss the complaint with cost.

Dated this 12th day of May, 2000 at Mount Hagen.

Mr. R. Appa
By The Court