Noifa v Tol [2008] PGDC 67; DC716 (6 May 2008)

DC716

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

GFCi 07 of 2008

BETWEEN

RUTH NOIFA
Complainant

AND

BANZEL TOL
First Defendant

AND

STEAMSHIP trading as
EAST WEST TRANSPORT LIMITED
Second Defendant

Goroka: M Gauli, PM
2008: April 29
May 06

CIVIL - Claims damages – Negligence – Failed to give way to on-coming vehicle – Ownership of the vehicle – Complaint filed by the wife who is not a registered owner of the vehicle – Wife has sufficient interest – Damages – Not proved.

Cases Cited:
1. Mamun Investment Pty Ltd –v- Paul Ponda & Ors [1995] PNGLR 1
2. AGC (Pacific) Ltd –v- Woo International Pty Ltd [1992] PNGLR 100
3. Wilson Thompson –v- NCDC (2004) N2686
4. Andrew Moka –v- MVIL (2001) N2098
5. Banz Kofi Fektori Ltd –v- Raymond Simon Apa (2002) N2374
6. Post Telecommunication –v- MVIL (2003) N2479
7. Roka Coffee Estate Pty Ltd –v- Largo Gerebi [1973] PNGLR 486

References:
1. District Courts Act, Section 28
2. Magistrates Manual of Papua New Guinea, Para. 14.3.3 page 239

Counsels:
For the Complainant - In Person
For the Defendants - Ms. R. Kot of Warner Shand Lawyers

06 May 2008

DECISION OF THE COURT

M Gauli, PM: The complainant Mrs. Ruth Noifa claims against the defendants Banzel Tol and the Steamship trading as the East West Transport Limited in damages for negligence under two heads, general damages for K7, 389.00 and for frustration and inconvenience for K2, 000.00. The complainant alleged that on 17 June 2006 the first defendant Banzel Tol negligently drove the vehicle a Isuzu truck registration number EAB 356 belonging to the second defendant the East West Transport Limited along the Leigh Veal Street near Goroka Base Hospital and collided into the complainant’s Toyota Hiace 15 seater bus registration number P 946 S causing damage to it.

2. There is no dispute that the first defendant is employed by the second defendant as a driver and that the first defendant drove the Isuzu truck owned by the second defendant. There is no dispute that there was a Traffic accident between the said two vehicles. The bus sustained scratches along its right hand side when it came in contact with the bumper bar of the Isuzu truck.

3. The disputed facts are these. The complainant is not the registered owner of the bus. That the first defendant failed to give way to the bus which was travelling on the main carriage. That the complainant failed to establish negligence against the first defendant.

4. The council for the defendants filed written submission on the 05 of May 2008 and I had the opportunity to read it. Council submitted that Ruth Noifa’s evidence is mainly hearsay, witness Sio Peter’s evidences is contradictory and that the complainant’s evidence failed to prove negligence against defendants.

5. Issues:

There are number of issues for this Court to determine and these are:

i. Whether or not the complainant is a proper person to sue the defendant.

ii. Whether or not the first defendant was negligent in driving the motor vehicle at the time of the incident.

iii. Whether or not the complainant has established her damages.

iv. Whether the second defendant is vicariously liable for the first defendant’s negligence.

6. Issue No. 1: Whether or not the complainant is a proper person to sue the defendant.

The complainant Mrs. Ruth Noifa claims that she is the owner of the Toyota Hiace 15 seater bus registration P 946 S. However during cross-examination she said that the bus was registered under the name of her husband John Noifa. At the request of this Court she tendered the copy of the registration certificate which confirms that John Noifa is the registered owner of the bus and not the complainant. She said she filed this proceedings as the complainant because her husband is living out of Goroka. She does not say where the husband is actually residing.

7. Although Ruth Noifa is the wife of John Noifa, who is the registered owner of the bus, she is not the co-registered owner of the bus. As such she cannot be owner. And therefore she cannot bring the proceedings in person against the defendants. She could only bring the action for and on behalf of the registered owner Mr. John Noifa her husband. The proceedings must be brought by the owner in person or by someone on behalf of the owner. A person who is not the owner of the good or property has no right to bring an action in Court though he or she may be a family member of the owner of the property.

8. I have no case law authority in respect of this issue to support my views expressed above. However Section 28 of the District Courts Act does support my views. This provision states and I quote:

“28 Information and complaints

Proceedings before a Court shall be commenced –

(a) by an information or a complaint, which may be laid by the complainant in person, or by his legal representative or other person authorized for the purpose; or

(b) by a Traffic Infringement Summons.”

9. In the present case the complainant should be the registered owner of the vehicle. And he alone may lay the complaint. If the registered owner was not able to file the action in person then other authorized person may bring the action on his behalf, but that authorized person must not bring the action under his or her own name. If however the vehicle was purchased and registered under the name of John Noifa but for and on behalf of Ruth Noifa or the Noifa family then the complainant has the right to bring the action under her own name as the complainant. I find that the present complainant is not the proper or the right person to bring the action in her own name.

10. However does the complainant have the “locus standi” to bring the action, that is whether she has the legitimate or sufficient interest in the proceedings. I got some assistance from the text book Magistrates Manual of Papua New Guinea on paragraph 14.3.2 of page 239 where it said and I quote:

“Although a person may have the legal capacity to bring an action in court, in order for that person to bring an action, he or she must have a sufficient relationship to the dispute or the issued that are to be decided. A sufficiently proximate relationship with these issues is often referred to as “locus standi”. This is not a matter of status, but derives from the common law. A person is said to have locus standi if that person has legitimate interest or sufficient interest in the proceedings. The matter of locus standi has been considered in number of cases in Papua New Guinea.

Mamun Investment Pty Ltd –v- Paul Ponda [1995] PNGLR 1 is authority for the proposition that a party who has no legal or equitable interest in the subject matter of a claim has no standing to bring an action in relation to that subject matter.

However, standing cannot always be determined by the strict test used in “Mamun”. If, for instance, the case involves custody of a child or damages for nuisance, there may be no legal or equitable interest in the subject matter. In such a case, the test of sufficiently proximate relationship may be the guideline to be used. There is nothing to prevent customary relationships from being taken into consideration in relation to this question.”

11. In the case of Mamun Investment Pty Ltd –v- Paul Ponda & Ors [1995] PNGLR 1 the Supreme Court held that the Mount Hagen branch of the YMCA has sufficient interest in the occupation and use of the property therefore it can bring the action. The Supreme Court considered the YMCA having sufficient interest in the occupation and use of the land does have the right to bring the action.

12. In the present case the bus was purchased and registered under the complainant’s husband’s name. The complainant is in possession and has use of the bus while the husband is living out of Goroka. She manages the operations of the bus from day to day. Under those circumstances I consider that the complainant has a sufficient interest to bring the action – AGC (Pacific) Ltd –v- Woo International Pty Ltd [1992] PNGLR 100, followed.

13. Issue No. 2: Whether or not the first defendant was negligent in driving his motor vehicle at the time of the incident.

The complainant Ruth Noifa was not present at the time of the incident. She gave evidence of what her driver Martin Kenny and the crew Sio Peter have reported her after the incident. Her evidence is that while Martin Kenny, the driver of the PMV 15 seater Toyota Hiace bus, was driving up the Goroka Base Hospital road from Red Corner to Goroka town, the Isuzu truck belonging to the East West Transport Limited, driven by the first defendant Banzel Tol, drove out from the hospitals gate two onto the main street. He failed to give way to the bus which was on the main carriage and bumped into the bus. Here evidence is mostly hearsay.

14. The witness Sio Peter, the crew of the 15 seater PMV bus, gave evidence that as they were travelling from the Red Corner to Goroka town along the Goroka Base Hospital road, the defendants Isuzu truck drove out from the second gate of the Hospital at Levai Street to the main street the 15 seater PMV bus was travelling. The defendants truck was supposed to give way to the PMV bus which was on the main carriage. As a result the defendant’s truck bumped into the PMV bus. Just before the impact when the driver of the bus realized that the defendant’s truck was not going to give way, the driver swung the bus further to the left to avoid head collision. And in so doing the front bumper bar of the defendant’s truck came in contact to the right hand side of the bus causing scratches along its side.

15. The witness Martin Kenny, the driver of the Toyota Hiace 15 seater PMV bus registered number P 946 S, deposed in his Affidavit marked EXHIBIT ‘A’, that as he was driving up the hospital road from the Red Corner and as he was approaching the hospital gate, he saw the defendant’s truck coming out of the hospital. As the bus was driving past the hospital gate the defendant’s truck bumped the bus between the driver’s door and the second window of the bus. The truck was supposed to give way to the bus but it did not. The impact of the collision forced the bus towards the drain but the driver accelerated thus avoiding the bus going into the drain.

16. For the defendant’s case, the first defendant Banzel Tol and his crew Petrus Hokuri gave evidence. Defendant Banzel Tol deposed in his affidavit evidence marked EXHIBIT ‘B’ that he drove the Isuzu truck registered number EAB 354 owned by Petrus Kokuri. After off loading fuel at Goroka Base Hospital, he drove out from the second gate of the hospital. He stopped at the junction leading to the main road and gave way for the traffic on the main road. There was no other vehicle to give way except for the PMV 15 seater Toyota Hiace bus coming up from the Red Corner heading towards Goroka town. It was some 110 to 120 metres away.

17. Defendant Banzel Tol drove the truck onto the main street, shifted from first to second and third gear and had driven some ten (10) metres or so along the main carriage when the said Toyota Hiace bus came from behind at high speed. The bus failed to slow down and it over took the truck on the left side instead from the right hand side though there was no on-coming vehicle from the opposite direction. The bus swayed to the left side of the truck sliding along the truck’s left side causing minor scratches on the right side of the bus. The accident was caused by the negligence of the complainant’s driver. He failed to keep a proper look out for the vehicle in front of him by failing to apply brakes or slow down and overtaking on the left side of the vehicle in front of him.

18. The witness Petrus Kokuri deposed in his Affidavit marked EXHIBIT ‘C’ confirming the evidence of the first defendant Banzel Tol. In his oral evidence in Court he stated that when they came to the hospital’s second gate onto the main street, they have already driven along some 10 to 20 metres when the Toyota Hiace PMV bus scratched its right side against the bumper bar of the defendant’s truck.

19. The evidence on behalf of the complainant is that as the bus was driving past the junction at the second gate of the hospital the defendant’s truck drove out from the hospital’s second gate onto the main left carriage trying to turn onto the lane of the bus. Realizing that the Isuzu truck was not going to give way for the, the driver swayed the bus further to his left to avoid the collision. Since there was a drain on the left side of the road, the driver swayed the bus back to the right to avoid going into the drain. And in so doing the bumper of the Isuzu truck came in contact with the right side of the bus between the driver’s door and the second window of the bus. And as the bus accelerated the bumper of the Isuzu truck scratched along the right side of the bus.

20. The defendant’s evidence is that the Isuzu truck had already come onto the main street when it came out from the hospital’s gate two, and it was already travelling along the main street some 10 to 20 metres when the bus coming from behind overtook the truck on its left side and caused the accident, when it should overtake the truck on the right hand side. During re-examination of the defendant’s witness Petrus Hokuri, in answer to Question No. 2, he said:

ANS: “There was no vehicle on the right lane. The tail of our truck was still sticking out and not parallel to our left lane as yet when the bus over took us on our left.”

21. This contradicts the defendants evidence that the Isuzu truck was already on the left lane and had travelled some 10 to 20 metres along that lane before the bus began to over take them on their left side. Suppose the Isuzu truck, which was the fuel truck, being a much bigger truck than the 15 seater bus would have occupied much of the lane on the left. And there being a drain on the side of the left lane there was hardly any space for the bus to overtake the Isuzu truck on its left side. If the bus was to do that it would have gone into the drain. Likewise, if the Isuzu truck was already travelling some 10 to 20 metres along its left lane and the bus overtook it on its left side, it would be quite impossible for the front bumper bar of the Isuzu truck to come into contact with the right side of the bus. I am not convinced by the defendant’s evidence.

22. I find the evidence for the complainant to be more convincing of the way the accident occurred. I find that the first defendant drove out onto the main street from the junction of the hospital gate two at the time the complainant’s bus was just passing that junction. I am not convinced that the bus was some 100 to 120 metres away when the defendant’s truck came onto the main street. The first defendant saw the bus travelling on the main carriage. The hospital gate two is on the right hand side of the coming bus. The Isuzu truck which was at the junction of that gate had to cross the main street to get onto the left lane. The Isuzu fuel truck being a heavier vehicle than the 15 seater Toyota Hiace bus, ought to give way to that bus which was on the main carriage. It is quite impossible for a heavier truck, such as the Isuzu truck for the driver to shift gears from first to second and third within a distance of 10 to 20 metres. A heavy vehicle could not pick up momentum at that distance. The only reason why the first defendant shifted the gears from first to second then to third within that short space of distance as he came onto the main street from the junction was perhaps because he noticed the bus was so close to him.

23. I find that the defendant was negligent. He failed to give way to the vehicle travelling on the main carriage which has the right of the way. He drove onto the main carriage at the time the bus so close. He failed to give a proper look out before coming onto the main street. I could not be convinced that the driver of the bus was negligent in any way at all. I find that the complainant has established negligence against the first defendant the driver of the second defendant. The defendant’s have not argued on the negligence in their submission.

24. Issue No. 3: Whether or not the complainant has established her damages.

The complainant in her complaint and summons claimed orders in damages in the sum of K7, 389.00 being for repairs costs to the bus and K2, 000.00 for frustrations and inconveniences. In the statement of claim the complainant stated that she had obtained a quotation from the Ela Motors for K7, 389.00 for repair costs. That quotation had not been tendered to Court as evidence. The complainant and her witnesses have not given evidence as to the exact damages the bus had sustained. There is no evidence before this Court of the actual damages the bus sustained. However there is no doubt that the bus did sustain scratch from the front right door to the rear. The Ela Motor’s quote did not indicate the cost of the scratches to the rights side of the body of the bus.

25. The complainant further claimed for damages in the sum of K2, 000.00 for frustration and inconvenience. The complainant gave no evidence of her frustration and or inconveniences. There is an established law that he who claims damages or relief must prove them.

26. The defendants in their submission submitted that the complainant failed to plead and establish the damages. The council referred to the cases of Wilson Thompson –v- National Capital District Commission (2004) N 2686; Andrew Moka –v- MVIL (2001) N 2098; Banz Kofi Fektori Ltd –v- Raymond Simon Apa (2002) N 2374 and Post Telecommunication –v- MVIL (2003) N 2479, all unreported National Court cases. In the case of Thompson –v- NCDC N 2686, Justice Kandakasi said:

“It is a settled law that a plaintiff claiming damages must first plead his damages with particulars. He must then establish by appropriate evidence what he has pleaded. Where either or both these are lacking, there can be no award of damages.”

27. And in the case of Andrew Moka –v- MVIL N 2098 the National Court said that: “The onus is on the plaintiff to firstly, properly plead with sufficient particulars the full extent of his loss and then produce the appropriate evidence to success in his claim against the defendant.” In that case the complainant failed to discharge those obligations and dismissed the claims against the defendant. The case of Banz Kofi Fektori Ltd –v- Raymond Simon Apa N 2374 also held that the plaintiff must not only plead the damages but he must strictly prove the damages.

28. Where the defendant denies liability or denies the damages the complainant has the burden to establish and prove the damages. Justice Gavara Nanu in dismissing the claims re-affirms the above precedents in the case of Post Telecommunication –v- MVIL N 2479 in which he said:

“It is a trite law that whether the claim is for special or general damages in either case, the plaintiff has to prove its claims. Hence it has not adduced any evidence to substantiate its claims. That is fatal to its case. The denial by the defendant of all the plaintiffs case, means that the plaintiff had to prove all its claims.”

29. I find that in our present case the complainant failed to establish and prove her claims of the general damages and special damages against the defendants. There is no evidence to prove that she suffered the damages she claims. This is fatal to her case.

30. Issue No. 4: Whether the second defendant is vicariously liable for the negligence of the first defendant.

The relationship of the second defendant and the first defendant is that of a master/servant relationship or the employer/employee relationship. Generally it is a trite law that the master or employer is vicariously liable for the negligence of his servant or employee where the servant or the employee has caused injuries and or damages to another person in the course of the servant’s employment or call of duty. His Honour Minogue CJ said in Roka Coffee Estate Pty Ltd –v- Largo Gerebi [1973] PNGLR 486 at page:

“The traditional view is that the master is liable for the servant’s torts committed within the scope of his employment _ _ _ “

31. However the Supreme Court held that the appellant’s driver had no express or implied authority to pick up a passenger, the respondent’s husband who was killed in the accident, and the driver acted outside the scope of his employment therefore the appellant/defendant could not be held liable.

32. In the present case the second defendant would be vicariously liable if the complainant proved negligence and established the damages against the first defendant. I have found that the complainant had proven negligence against the first defendant but she failed to prove the damages she claims against the defendant. And that is fatal to the complainant’s case. Having found that the complainant failed to prove damages I have no options but to have the case dismissed with costs for the defendant.

For the Complainant - In Person
For the Defendants - Ms. R. Kot of Warner Shand Lawyers