Kap v TNA Holdings Ltd [2008] PGDC 50; DC739 (1 April 2008)

DC739

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE SITTING IN IT’S GRADE FIVE CIVIL JURISDICTION]

GFCi 704 - 705 of 2007

BETWEEN:

WERA KAP
Complainant

AND:

TNA HOLDINGS LTD
First Defendant

AND:

WAGAI MARKAM
Second Defendant

Kundiawa: M. Gauli, PM
2008: April 01st

CIVIL - Claims damages to a motor vehicle – Reckless or negligence parking of a motor vehicle – No evidence of negligence or recklessness of the defendant – No evidence from the Complaint’s key witness.

Cases Cited:
1. Roka Coffee Estate Pty Ltd –v- Largo Gerebi [1973] PNGLR 456

References:
Nil

Counsels:
For the Complainant - In Person
For the Defendants - By Agnes Philip (employee)

1st April 2008

DECISION OF THE COURT

M. Gauli; PM: The Complainant Wera Kap claims damages against the defendant for damages done to his motor vehicle when his son Backley Onn ran into the rear of the first defendant’s vehicle that was parked. And the complainant’s vehicle sustained damages.

Facts:

The Complainant is a villager and he owns a Mitsubishi Canter truck registered number LAS-766. The first defendant is a Company operating in Kundiawa town, and it owns a motor vehicle to wit a Isuzu truck registered number TNA 333. On 14th January 2007, the Complainant’s vehicle was driven by his son Backly Onn was travelling from Goroka to Kundiawa way. The second defendant Wakai Markam is employee of the first defendant as a driver. And he drove the defendant’s vehicle heading towards Kundiawa from Goroka. The second defendant stopped and parked the vehicle at a corner behind two other parked vehicles along the Okuk Highway.

It is not known how long those three vehicles have parked there. It is not known how far off these three vehicles parked off the lane. The complainant’s son while on his way to Kundiawa drove his vehicle and collided into the rear of defendant’s vehicle that was stationary, and sustained damages. And the complainant claims that the second defendant was negligent in the management, care and control of the vehicle he drove resulting in the complaint’s vehicle suffering damages.

There is only one issue to be decided, and that is:

“Whether or not the second defendant was negligent”.

There is no dispute that the Complainant’s son Backley drove the vehicle and collided into the rear of the defendant’s vehicle that was stationary. However the complainant has to prove negligent on the second defendant. Once negligence is proven against the second defendant the employee, the first defendant as the employer can be held vicariously liable. It is the traditional view that a master is liable for the torts committed by the servants within the scope of his employment-. Roka Coffee Estate Pty Ltd –v-Largo Gerebi [1973] PNGLR 486 referred.

The Complainant Wera Kap and his only witness John Kama gave evidence. Mr. Wera Kapa’s evidence is mostly hearsay. He was not personally present at the scene at the time of the accident. He has no personal knowledge of how the collision occurred. He relied on his affidavit evidence (EXHIBIT ‘A’) which is all hearsay. I do not intend to restate them here. He even failed to call his son Backley Onn to testify who should have been the key witness.

The witness John Kama testified that he was standing about 50 metres from the point of impact at the time of incident. He say the second defendant parked his vehicle behind the second vehicle. There were three vehicles that parked one behind the other and the second defendant’s vehicle was the last. He then saw the complainant’s vehicle coming from Goroka bound to Kundiawa driven by the complainant’s son. He then saw a red land cruiser travelling in the opposite direction. He then heard a loud collision. He thought the complainant’s vehicle must have collided with the on-coming land cruiser but when he turned towards the scene he saw the landcruiser continuing on its way. He walked up to the scene and notice the complainant’s vehicle bumped into the rear of defendant’s vehicle that was stationary. He did not actually see how this happened.

The witness John Kama said those three vehicles including the defendant’s vehicle were parked at the corner. It would be safe if only on vehicle is parked there but not safe if more than one vehicle is parked. He did not say how those three vehicles were parked. There is no evidence as to whether the second defendant parked his vehicle clearly off the side of the lane or whether part of his vehicle was partly on the lane the complainant’s vehicle was travelling on. And if it was, how much of the defendant’s vehicle was on the lane. There is no evidence before this Court that the second defendant parked the vehicle either on or so closed to the lane the complainant’s vehicle was travelling. There is no evidence of the exact point of impact either. On the evidence as it is presented before this Court I find that the Complainant’s evidence failed to establish negligence against the second defendant.

The complainant provided Annexure ‘A’ to his affidavit marked EXHIBIT ‘A’. The Annexure ‘A’ is the Certificate of Conviction against the second defendant Wakai Markam for parking his vehicle at an area where it had a “No Parking or Standing” sign been exhibited. He was fined K100.00 in default three months imprisonment. The complainant and his witness never gave evidence before this court that there was exhibited such a sign is there. Even if a no parking sign is exhibited, and the second defendant had parked the vehicle there, there is no evidence that second defendant had obstructed in any way the free flow of the traffic especially on the lane the complainant’s vehicle was been driven on. I am not convinced that the complainant has proven negligence against the second defendant.

The defendant did not provide evidence simply because the Manager of TNA Holding Ltd was away. I find that even if the defendant called evidence it would not have improved the complainant’s case at all. Having find that the complainant failed to prove negligence against the second defendant, the first defendant could not be held vicariously liable. And I order that the case be dismissed and the defendants discharged.

Complainant - In Person
Defendants - By an employee Agnes Philip