Berem v Neighbour [2002] PGDC 3; DC81 (5 December 2002)

DC81

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 84 OF 2002

BETWEEN

JOSEPH BEREM
Complainant

AND

TIMOTHY NEIGHBOUR
First Defendant

W.R. CARPENTERS & CO ESTATES
Second Defendant

Mt Hagen

D Susame
29 August 2002
2 September 2002
5 December 2002

Counsel
Complainant, Ms Judy Nandape
Defendant, Mr Koeya J. Peri

JUDGMENT

D Susame. The complainant claims damages for loss of business earnings when his 15 seater Toyota Hiace PMV Bus was put off business after a road accident. The formal trial of the case with cross-examination of the witnesses commenced on 29th August, 2002.

However, case was adjourned when the defence counsel requested for the date accident occurred and which the complainant did not include in the statement of claim. During the adjournment further and better particulars were provided by the complainant on defence counsel's request.

When the matter came before me again on 9th October, 2002, for continuation of trial defendants and their counsel failed to make an appearance for unknown reasons. On the complainant's applications and as the matter had been set for trial to continue on the day court proceeded with the examination of complainant's witnesses. Matter was then adjourned for the complainant's counsel to file a formal submission, which she did. I now publish the reserved judgment of the court.

FACTS.

The brief facts of the case are as follows.

On the 09th October 2001 a Nissan Navara bearing the registration numbers LAA 012 driven by the first defendant crashed into the complainant's 15 seater Toyota Hiace PMV bus registration number P1185. The defendant has since met the cost of repairs to the complainant's bus. However, the defendants have refused to compensate for the loss of business earnings, hence, resulting in these proceedings.

In their defence filed on 15th May 2002 the defendants denied liability. In paragraph (3) three the defendants stated that the admission in paragraphs 2, 3 and 4 of the statement of claim was made on a without prejudice basis for the good of the company and the betterment of the relationship the company has with the surrounding communities.

Secondly, in paragraph (3) three the defendant deny paragraphs (5) five and (6) six of the statement of claim and further stated that the damage caused to the complainant's motor vehicle was a minor one. The bus was still on the road hence there was no loss of earnings or otherwise any form of damages has been suffered by the complainant.

The defendants have been given adequate opportunity to be heard of their defence. They have no one else to blame except themselves and their counsel for not attending court to argue their case. Nonetheless their defence will still be considered against the complainant bears the onus of proving his claim on the balance of probabilities.

In my view, the claim for loss of business earning cannot be answered without the court first making a finding on who was at fault or negligent in causing the accident.

ACCIDENT

The complainant's case consists of affidavit evidence and documentary evidence plus oral evidence of complainant and two other witnesses. I am mindful of the fact that their evidence have not been tested in cross-examination for any real weighing to be done as against the defence evidence. The court has a discretion which part of the evidence to attach such weight as it sees fit and which evidence to disallow or not to accept.

Generally, complainant and witness Raphael Kumb one of the passengers on the bus both gave evidence that they were travelling from Kindeng to Mt. Hagen. As they were approaching and passing a road junction of the road leading to W.R. Carpenters Tea Plantation and factory which is on their right, the Nissan Navara drove out suddenly and instead of stopping and giving way drove straight into the bus smashing the right side just behind the driver.

From the above evidence, I take it that the bus was travelling along the stretch of highway between Kindeng and Mt. Hagen. The Nissan Navara was coming out from the feeder road to the plantation to get on to the highway, on the right side as one is travelling into Mt. Hagen. The bus would then have a right of way.

The proper and safe thing to do for avoiding any accident is for the driver of the Nissan to slow down or stop at the road junction to allow the bus to pass. Thereafter, the Nissan to drive out onto the main carriage way and continue its journey.

The defence had pleaded that admissions by the first defendant were made on without prejudice basis for the good of the company and the betterment of the relationship the company has within the surrounding community. The complainant's counsel has argued that the first defendant has adduced no evidence to proof that admission was made without prejudice basis. Obviously there is no evidence from the defence simply because matter was heard during their absence. However, generally at law an admission of negligence by a servant is not evidence against his employer unless the servant has expressed authority to make the admission (see Charles Worth on negligence 5th Edition at page 590). So I accept that as regards an action against an employer. The admissions by the first defendant on the day of the accident would have been on a without prejudice basis. The first defendant uttered the words as a natural consequences of the collision spontaneously. However, as against the first defendant personally, in my view the admissions by him immediately at the time accident occurred would in my view evidence which would go against him and further strengthen the complainant's case. Even if the court rejects the evidence of admissions by the first defendant, there is still evidence which this court can fall back on from complainant and his witnesses which I had accepted as to the circumstances surrounding the accident as discussed earlier in the judgment.

Thus, I conclude that the first defendant was wholly negligent in causing the accident.

LIABILITY

Who then should be held liable to make good for the loss suffered following the conclusion, I have reached above?

It has not been established by the complainant that who owns the Nissan. If it has also not been established by the complainant if the accident occurred whilst the first defendant was in the course his employment with the second defendant.

The complainant who owns the Nissan has not established it. It has also not been established by the complainant if the accident occurred whilst the first defendant was in course his employment with the second defendant.

It is insufficient for the complainant to assert that because the second defendant is employed by the second defendant must be held liable under the principle of vicarious liability loss suffered. The law requires that the complainant must adduce evidence to establish that the negligent act or omission of the employee giving rises to the injury or damage arose in the course of his employment for the employer to be held liable. Otherwise liability will have to be born by the employee himself. The position of the law is that a matter is liable for the negligence of his servant if committed in the course of his employment but is not liable for negligence committed outside the scope of his employment. (See Charles Worth on Negligence at page 552 paragraph 923). 1. Marsh v. Moores [1949] 2 K.B. 208

DAMAGES

There is no doubt that complainant operates a 15 seater PMV bus. It is registered and permitted to operate on route 100 outside the city of Mt. Hagen.

The complainant stated in paragraph 12 of his affidavit that the bus was out of business for 11 days. However, in court he stated it was off the road for 14 days. And when further examined by his counsel he said (9) nine days vehicle was in the workshop and (5) five days it was with him what is not clear though is whether the (5) days period was before or after the repairs.

If it was the period after the vehicle was repaired then I see no reason why the complainant should not have allowed the bus to operate.

Counsel has submitted the complainant makes about K250.00 to K350.00 per day. On average complainant makes K300.00 per day. Thus, that translates into K4,200.00 for the 14 days vehicle was off the road. However, complainant claims K1,650.00 which is the claim requested in his correspondence of 19th October, 2001 to the defendants. He stated he charges K10.00 per passengers from Hagen to Wabag and Mendi. Thus K10.00 x 15 passenger's amounts to K150.00 he makes per day which is multiply by 11 days. I do not agree with the complainant's calculation on the basis that a 15 seater PMV bus gives the sitting capacity of communities excluding the driver and the crew can only carry 13 passengers and not 15. If it is true that complainant charges K10.00 per passengers travelling to Wabag and Mendi, then the total earnings he would be made on a single day trip would be K130.00. All of the above merely estimates.

To prove economic loss complainant must adduce evidence to substantiate his claim. It has been held in a member of National Court judgments that complainant must substantiate economic loss of business by business records, balance sheets of accounts or tax returns if he chooses to run a business without proper records then he runs the risk of loss. See Benny Balepa v The Commissioner of Police and State N1374 02 September 1995.

Furthermore, at this stage of the proceeding, I am still not sure to the exact number of days the bus was not conducting business in considering the complainant's evidence discussed above.

What I am satisfied with however, is that the complainant runs a PMV bus; it was off the road and not conducting business for some days, I will allow some form of damages.

Say complainant charges K10.00 per passengers travelling to Wabag or Mendi that is multiplied by thirteen passengers which gives K130.00 he would make on a single day. In a week excluding Sundays he would probably make K780.00.

Thus in the exercise of my discretion and from the above discussions, I will enter judgment for the complainant for K780.00.

Interest at a rate of 8% per annum is allowed which is to commence from date of summons to the date of Judgment is satisfied. Cost of the proceeding is awarded to the complainant to be taxed if not agreed by the parties.

N.D In case my discussions and judgment is misunderstood by anyone the judgment is made and enforcement against on each of the defendants named in these proceedings to protect the complainant's interest.

Tamutai Lawyers Complainant

Warner Shand Lawyers Defendant