Woiwoi v Waika [2018] PGDC 43; DC4051 (12 October 2018)

DC4051

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL JURISDICTION]

DCCiv 01 of 2017

BETWEEN

Joap Woiwoi

Complainant

AND

John Waika

Defendant

Kokopo: SLavutul

2018: 03^rd August 2018

CIVIL PROCESS AND PROCEDURE – General Damages –Damages caused to Complainant’s Wife’s Vehicle – Denial of Liability – Part Payment Obtained under Duress & Undue Influence- Complainant doesn’t have standing to sue- Not owner of the said damaged vehicle- Question of Loco Standi – Consideration of Economic Interest and Social Interest.

Cases Cited

1. Air Pilots Association v Director of Civil Aviation and National Airlines Commission, trading as Air Niugini [1983]PNGLR 1; N399 (7 January 1983)
2. Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R 493 A.L.JR. 176.
3. Robinson v The Western Australian Museum[1977] HCA 46; (1977) 138 C.L.R 283 at 327- 328

References

District Courts Act

Motor Traffic Act & Regulation

Appearance

Complainant in Person

Jacqueline Marubu Appeared for Defendant

JUDGEMENT

12th October 2018

Samuel Lavutul, Principal Magistrate, The matter came before me by way of a civil complaint against the defendants, namely John Waika as first Defendant and second Defendant Rabaul Shipping Limited.

2. It was alleged the first Defendant did on the 19^th of March 2016, at about 5.30 pm at the CPL Toboi, along the Kokopo -Rabaul Road involved in a vehicle accident with the Complainant’s vehicle, registered under his wife’s name; bearing the Registration, No. KAG 346, a Mazda 2500 single cabin utility, red in color.

3. It was alleged the said vehicle was driven by the Complainant’s son namely Nebuka Woiwoi. It was alleged by the Complainant the 01^st Defendant was driving the 02^nd Defendant’s vehicle at the time of the accident.

4. The Complainant alleged that the 01^st Defendant made a sudden “U” Turn at the CPL Gate at Toboi without any indication or signal lights. It further alleged the Complainant’s son was not able to stop the vehicle in time and bumped into the Defendant’s vehicle rear right side. The Complainant claimed the accident and damages were a result of negligence by the 01^st Defendant as he failed to exercise due care; and failed to put his signal lights and check for oncoming vehicles.

5. The particulars of the damages were caused to;

(a). Headlight R/H

(b). Corner lamp R/H

(c). Radiator

6. The Complainant claimed that the vehicle needed panel works and repainting and was quoted by 2 Fast Motors at K5, 786.40 in which the Defendant had made a part payment of K2000.00.

7. The Complainant raised that after several attempts in order for the Defendant to pay the remainder of K3, 786.40 to the balance of K5, 786.40 he has totally refused and ignored to settle the remainder.

8. The Complainant therefore seeks for the following orders;

(a). That the Defendant pays the outstanding amount of K3, 786.40

(b). Costs of the proceedings

(c). Any other orders the court deems fit

Defence and Cross - Claim

9. In his defence the defendant raised through his counsel the following;

(i). During pleadings the 01^st Defendant denied causing the accident alleging that Complainant’s son namely Nebuka Woiwoi was at fault as he did not sound his horn and he was travelling at high speed and not concentrating on the road.

(ii). He also added the sum of K2000.00 was obtained from him by duress and he did not admit to liability.

(iii). And the 01^st Defendant stated in his defence the complainant in the matter is a stranger and cannot sue.

Facts

11. On Saturday the 19^th of March 2016 at about 5.30 pm the complainant’s son namely Nebuka Woiwoi drove vehicle registered no. KAG 346, a Mazda 2500 single cabin utility, red in color along the Kokopo Rabaul Road. Nebuka Woiwoi was accompanied by his wife Thresa Sam at the time of the accident. They were heading to Kokopo.

12. The 01^st defendant drove a Mazda BT50, double cabin vehicle bearing Registration No. RAP. 529, copper red color registered to Rabaul Slipways Limited. The 01^st defendant namely John Waika also drove along the Kokopo Rabaul Road and pulled off the road at the CPL main gate to drop off Lesley Tito.

13. Defendant John Waika as he was attempting to turn his vehicle back to Rabaul he was hit by Nebuka Woiwoi from the right rear end of his mother’s vehicle. Both vehicles were extensively damaged as a direct result.

Issues

11. The following are the issues which the court was required to resolve;

i). whether the complainant as standing to sue for damages to his wife’s vehicle.

ii). whether the 01st defendant or the complainant’s son was at fault and caused the accident which resulted in the damages to the complainant’s wife’s vehicle.

iii) Whether the sum of K2, 000.00 paid to the complainant was obtained by duress.

12. From the outset both parties were given the opportunity to give evidence and call possible witnesses. The complainant gave evidence on oath and called two (2) witnesses that is his son Nebuka Woiwoi who was the driver at the time of the accident; and his wife namely Thresa Sam who accompanied her husband in the vehicle at the time of the accident.

13. Whilst the 01st defendant gave evidence on oath and including his witnesses namely, March Maita, Lesley Tito, George Ebes and Peter Kilala.

14. I will deal with the 1^st issue on whether the complainant, Joap Woiwoi had loco standi or legal standing to bring the matter to court or not; the 01^st defendant John Waika through his lawyer relied on the view in the matter of Papua New Guinea Air Pilots Association v Director of Civil Aviation and National Airlines Commission, trading as Air Niugini [1983] PNGLR 1; N399 (7January 1983) in which Andrew J as he then adopted from the following Australian cases; Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R.493; 54A.L.JR. 176), and his Honor said in Robinson v. The Western Australian Museum [1977] HCA 46; (1977) 138 C.L.R 283 at 327- 328 where his Honors discussed the issue of Loco Standi and stated;

“But depending on the nature of the relief which he seeks, a plaintiff will in general have a loco standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interest. The cases are infinitely various and so much depends in a given case on the nature of the relief which is sought, for what is a sufficient interest in one case may be less than sufficient in another”

15. It is obvious from the complainant’s statement of claim the vehicle which alleged to have been damaged by the 01^st defendant belongs to his wife, bearing the Registration No: KAG 346, a Mazda 2500 red in color, 4 x 4 single cabin.

16. It is contested that due to the fact that the vehicle does not belongs to the complainant but that of his wife as it was registered under his wife’s name. This fact was clearly pleaded in the statement of claim by the complainant himself.

16. I am of the view reading the facts into the view adopted by His Honor Andrew J in Papua New Guinea Air Pilots Association v Director of Civil Aviation and National Airlines Commission, trading as Air Niugini [1983] PNGLR 1; N399 (7January 1983) in that the complainant, Joap Woiwoi had both an economic interest and social interest in the said vehicle. I draw the analogy to the fact that because Joap Woiwoi had a relationship in marriage with his wife he would surely have a direct connection to the said vehicle. It is both circumstantial and settled facts that Joap would directly have both a social and an economic interest in the matter before the court as he would contribute to pay for the alleged damages should the court decide otherwise. Socially what has happened in my view has directly affected not only the complainant but his entire family.

17. I would therefore rule that the complainant Joap Woiwoi has standing to bring this matter to court based on his economic and social interest pertaining to his relationship with his wife in marriage and the responsibilities that may go with it as a father and husband. I will therefore proceed to deal with the matter.

18. The 02^nd issue is on whether the 01st defendant or the complainant’s son Nebuka Woiwoi was at fault and caused the accident which resulted in the damages to the complaint’s wife vehicle.

19. The complainant’s son Nebuka Woiwoi drove his mother’s vehicle at the time of the accident on the Saturday 19^th of March 2016 along the Kokopo Rabaul road heading for Kokopo at about 5.30 pm. He was accompanied by his wife namely Thresa Sam. The complainant in the matter was not present at the scene of the accident nor was he present at the police station after the accident.

20. It is clear from the evidence the 01^st defendant John Waika had driven along the Kokopo Rabaul road and had pulled up on the left side of the road in front of the CPL Gate at Toboi, Malaguna in order to drop off his passenger namely Lesley Tito.

21. The 01^st defendant blamed the complainant’s son for causing the accident, likewise the complainant in the matter blames the 01^st defendant for the causing the accident.

22. The evidence by the complainant’s witnesses namely, Nebuka Woiwoi and Thresa Sam points to the 01^st defendant as the cause of the accident. Nebuka stated he saw the 01^st defendant pulled to the left side of the road with his signals on. He then dropped off a man and he drove to the CPL gate and he pulled out onto the main road and turned towards Rabaul town way.

23. Nebuka further claimed the 01^st defendant did not indicate with his signals that he was pulling out. He added he saw the 01^st defendant turned so he tried to avoid him and he hit him on the back of his vehicle. He further claimed that the 01^st defendant did admit to him that he was at fault as he did not see them coming.

24. Nebuka claimed they headed to the Rabaul Police Station and he told the court the Traffic officer asked the 01^st defendant, John Waika and he told him that he had hit the complainant’s vehicle on its lane and that he was at fault. Hence Nebuka claimed the 01^st defendant asked for quotations to be provided and that he would pay for the repair to the said vehicle. In which Nebuka claimed they provided a quotation from 2Fast Motors and he paid K2, 000.00. This was corroborated by Thresa Sam in her evidence.

25. Thresa Sam added the 01^st defendant admitted to having been under the influence of alcohol at the time of the accident however Nebuka in his evidence did not mention the 01^st defendant was under the influence of alcohol at the time of the accident.

26. In his defence the 01^st defendant after he dropped of Leslie Tito at CPL, he claimed he looked at a distant of about 100 metres and he pulled out and he was already on his lane the complainant’s son came hit his vehicle at the back.

27. He added he had sighted the complainant’s vehicle at about 100 metres away from where he had parked his vehicle and he claimed he indicated right and turned the vehicle towards Rabaul Town. He claimed he was almost on to the other lane and he was suddenly hit by the complainant’s son. He added the complainant’s son did not sound his horn nor did he attempt to apply his brakes.

28. The 01st defendant annexed to his affidavit are the following; Annexure A is a copy of the vehicle registration; Annexure B1 is a copy of the cheque payment and invoice for work done by Gazelle Motors to the sum of K3, 458.75 on the 01^st defendant’s company vehicle and B2 is a photograph of the damages on the said vehicle driven by the 01^st defendant. I note these pieces of evidence were not objected to by the complainant and admitted into evidence.

29. The 01^st defendant’s four witnesses, namely March Maita, Lesley Tito, George Ebes and Peter Kiala who all claimed were present at the scene of the accident. All four witnesses claimed they saw that the complainant’s son was travelling at high speed. All four witnesses claimed the 01^st defendant was already attempting a right turn towards Rabaul town and the complainant’s son hit his vehicle on his right rear end.

29. Firstly, I take judicial notice of the fact the stretch of road from Malaguna Primary school to the CPL Gate where the accident had occurred is a straight road without any bend. Based on the evidence before me the complainant’s son would have had full view of the 01^st defendant’s vehicle whilst closing in at about 60 to 70kmph as claim in his evidence and that of his wife Thresa.

30. I am of the view generally, that any driver that is driving and in total control of a motor vehicle on a public road owes a duty of care to other roads users be it another vehicle or pedestrians whether it be you have the right of way or not. Thus calls for extra care and caution on the part of the person who is the driver and in full control of a motor vehicle.

31. A driver must give full consideration to the mechanical condition of his or her vehicle, the condition of the road, the number of vehicles using the road at a particular time, legal speed limits, road signs, and must ensure full use of the indicators on his or her vehicle including his brakes, clutch, steering wheel, horn and must have total composer of self and avoid any unnecessary distractions whilst in motion.

32. From the evidence before me the defendant had full view of the vehicle driven by the 01^st defendant ahead of him as he describes in his evidence, and I quote; “It was in the afternoon I saw the defendant John Waika pulled to the left side of the road with his signals on. He dropped off a man and he drove to the CPL Gate and pulled out onto the main road and turned towards Rabaul without any signals. He did not indicate with his signals that he was pulling out”.

33. At this juncture the complainant’s son despite the fact he had the right of way and was travelling from behind and in full view of the 01^st defendant’s vehicle should have applied caution as he was closing in. By which he should have reduced speed, slow down and allow the 01^st defendant to complete his turn and/or give time to himself in order to carefully calculate his next option rather than allowing himself to drive on in the same speed.

34. I note from the photograph of the vehicle driven by the 01^st defendant the damage to the vehicle indicated and confirmed that the complainant’s son had hit the 01^st defendant’s vehicle at the right rear end. In my view it indicated the said vehicle was still on the left lane of the road. I observed from the evidence if the 01^st defendant had crossed onto the right lane one would expect the vehicle to sustain damages to the right side of the vehicle or somewhere in the middle of the body of the vehicle.

35. I note from the pleadings the vehicle driven by the complainant’s son had damages to; (a) Headlight R/H (b) Corner lamp R/H and (c) Radiator; thus is an indication that the complainant’s son was travelling high speed.

36. Based on the above line of reasoning I therefore find the complainant’s son Nebuka Woiwoi was at fault and had caused the accident with his manner of driving.

37. Finally, I will deal with the third issue on whether the sum of K2, 000.00 paid to the complainant was obtained by duress. I am of the view this matter should have been properly investigated by Rabaul Traffic Police after the matter was formally reported to them and have either of the drivers charge with either driving without due care and attention or negligent driving. However they resorted to having the matter settled out of court with the option for the 01^st defendant to pay for the damages. The police have a constitutional duty to investigate and lay charges and it is up to the court to determine the guilt of a defendant or defendants based on the evidence they present before the court.

38. It appears from the evidence the 01^st defendant did not honor the undertaking to pay. I am of the view in this instant the proper process was for the complainant to have opted for the defendant to be formally charged by police in order for the court to determine his guilt or who was at fault and/or he would have opted to formally sue the defendants for damages. If the 01^st defendant was found guilty it would have been easier for the complainant to sue him for assessment of damages based on a certificate of conviction issued by the District Court after a conviction. I am of the view it was unfair on both the complainant and defendants in the way the police had handled the matter in the first instant at the police station. Both parties should be accorded the right to be heard before a court of law despite whatever one may draw from the untested facts.

40. I conclude from the respective evidence of Nebuka Voivoi’s and Theresa Sam’s identical affidavits that they came back to the Rabaul Police Station on Monday 21^st of March 2016. They all came to see Traffic policemen Manuel and Momaito and proceeded to the accident scene. They further claimed an investigation was done and they all came back to the police station and John Waika was charged and advised to pay for the damages done to vehicle Mazda Bravo Rego # KAG 346. They claimed they were advised to bring a quote for panel beating for John Waika to settle. They did not specify who had advised them to obtain the quotation. It appears from their affidavits after the quotation was given to the 01^st defendant there were numerous follow ups and until the 01^st defendant paid the sum of K2, 000.00. I am of the view the quotation issued on the defendant was not a court order and was not enforceable; and I view the numerous follow ups by the complainant and his agents as undue influence which directly resulted in them obtaining the sum of K2, 000.00 from the 01st defendant John Waika.

41. I therefore ruled that the sum of K2, 000.00 was obtained by duress and undue influence by the complainant’s agents.

42. Now based on my findings on the second and third issues in which I found the complainant’s son namely Nebuka Woiwoi was at fault for causing the accident and that the sum of K2, 000. 00 paid by the 01^st defendant to the complainant was obtained by duress and undue influence; I will enter the following orders;

1. The 01^st and 02^nd defendants are not liable to the complainant’s complaint. And thus the claim against them is dismissed in its entirety

2. That the 01^st and 02^nd defendants are discharge from liabilities.

2. That the sum of K2000.00 which was paid to the complainant by the 01^st defendant be refunded to him by the end of November 2018.

3. That the complainant to pay costs to the 01^st defendant for this proceeding.

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