Anis v Taksey [2011] PGNC 189; N4468 (16 December 2011)

N4468

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 850 OF 2007

ALLEN ANIS
Plaintiff

V

DOBON TAKSEY
First Defendant

GOGOL NARU LANDOWNERS ASSOCIATION INC
Second Defendant

Madang: Cannings J
2010: 18 December,
2011: 19 August, 9 September,
16 December

NEGLIGENCE – motor vehicle collision – relevance to civil liability of defendant driver's conviction of traffic offence – standard of proof – vicarious liability – effect of admission of liability in pleadings on plaintiff's duty to adduce evidence – National Court Rules, Order 9, Rule 30 (judgment on admissions).

There was a collision between the plaintiff's truck (driven by the plaintiff's son) and the second defendant's truck (driven by the second defendant's employee, the first defendant) and, as a consequence, the plaintiff's truck was damaged. The police investigated the collision and the first defendant was arrested, charged and convicted in the District Court of two traffic offences, including driving without due care and attention. The plaintiff sued the defendants, claiming damages for damage to the truck and lost income (as he claimed that it was a profit-earning asset) for negligence. The defendants denied liability, as to the first defendant, on the ground that the relevant standard of proof was beyond reasonable doubt, which the plaintiff failed to discharge as evidence of the traffic offences was inadmissible and irrelevant to determination of civil liability; and, as to the second defendant, on the ground that, though there was an admission of vicarious liability in the pleadings, the plaintiff had failed to discharge the obligation to adduce evidence of the facts giving rise to vicarious liability, viz that the first defendant was an employee of the second defendant and that he was driving the truck in the course of his employment at the time of the collision.

Held:

(1) These were civil proceedings and, notwithstanding that the events giving rise to the cause of action also led to criminal proceedings (in which the relevant standard of proof was beyond reasonable doubt) the relevant standard of proof here was on the balance of probabilities.

(2) Evidence of the first defendant's conviction on traffic offences was admissible and relevant.

(3) Evidence adduced by the plaintiff was sufficient to prove, on the balance of probabilities, that the second defendant was negligent.

(4) Other elements of the tort of negligence (that the first defendant owed a duty of care to the plaintiff's son and the plaintiff, that the first defendant's negligent conduct caused damage to the plaintiff and that it was not too remote) were easily proven. Therefore the plaintiff established a cause of action in negligence against the first defendant.

(5) As to the second defendant's liability, this had been conceded in the defence filed on behalf of the defendants, which amounted to an admission of liability. The plaintiff was not obliged to adduce evidence of facts that would otherwise be necessary to establish vicarious liability. The court exercised its discretion under Order 9, Rule 30 (judgment on admissions) of the National Court Rules to enter judgment against the second defendant.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414
Copland Oa and Esther Korua v Nelson Korua (1999) N1871
Dalin More v The State and Chief Inspector Jim Onopia & Others (1998) N1736
Daniel Occungar v Luke Kiliso (2010) N4102
John Kul v The State (2010) N3898
Kembo Tirima v Angau Memorial Hospital Board (2005) N2779
Kuk Kuli v The State (2004) N2592
Litina Okevi v PNG Electricity Commission (2006) N3074
Mathew John Westcott v MVIL (2008) N3565
Re Moresby North East Parliamentary Election (No 2): Goasa Damena v Patterson Lowa [1977] PNGLR 448
Timothy Mong v George Doa (1997) N1540
Titus Banga v Madang Port Services Ltd (2011) N4302
Vincent Kerry v The State (2007) N3127

TRIAL

This was a trial on liability for negligence.

Counsel

T M Ilaisa & J Lai, for the plaintiff
C S N Narokobi, for the defendants

16 December, 2011

1. CANNINGS J: This is a trial on liability arising from the following events. On Monday 26 March 2007 at 6.30 pm there was a road accident on Modilon Road, in the Redscar area of Madang town. There was a collision between:

• a Toyota Dyna truck owned by the plaintiff, Allen Anis, which was being driven by his son, Henry Anis; and
  
• a Hyundai truck, driven by the first defendant, Dobon Taksey, who was allegedly an employee of the owner of the truck, the second defendant, Gogol Naru Landowners Association Incorporated.
  

2. Both trucks were being driven into town. The Hyundai was some distance ahead of the Dyna. Near Laiwaden Oval the Hyundai made a U-turn, which was poorly negotiated as it came back into the path of the Dyna. The Dyna driver unsuccessfully sought to avoid a collision. Both trucks were damaged. The drivers and passengers (two in each truck) suffered only minor injuries. The first defendant was arrested and charged by the police within an hour of the collision and three days later, on 29 March 2007, convicted by the Madang District Court of two traffic offences relating to the collision:

• driving a motor vehicle between the hours of sunset and sunrise without a lighted lamp attached to the rear of the vehicle contrary to Section 94(1)(b)(i) of the Motor Traffic Regulation; and
  
• driving a motor vehicle without due care and attention contrary to Section 17(2) of the Motor Traffic Act.
  

3. The penalties were a fine of K50.00 and K100.00 respectively, payable forthwith; and in default, two months and three months imprisonment respectively. The fines were paid and the first defendant was not imprisoned. The plaintiff subsequently commenced civil proceedings against him and the second defendant, claiming damages for negligence. He seeks damages for the damage to the truck and for lost income (as he claimed that it was a profit-earning asset) and mental stress. The defendants filed a defence, denying all liability, and a trial has been conducted to determine the issue of liability. The case will only progress to an assessment of damages if the plaintiff establishes liability against the first and/or second defendants.

4. It is uncontentious that in relation to the first defendant, the only issue is whether he drove the Hyundai negligently. Existence of the other elements of the tort of negligence (that the first defendant owed a duty of care to other road users and the owners of other vehicles on the road, that the conduct of the first defendant caused damage to the plaintiff's Dyna, which was not too remote) is self-evident (Daniel Occungar v Luke Kiliso (2010) N4102). As to the second defendant, the primary issue – if liability is established against the first defendant – is whether it is vicariously liable, by virtue of being his employer, for the negligence of the first defendant.

WAS THE FIRST DEFENDANT NEGLIGENT?

5. To prove this issue the plaintiff presented four affidavits, one by himself, which annexes certificates of conviction in respect of the traffic offences of which the first defendant was convicted, one by his son and two by the passengers in the Dyna. The affidavits of his son, who drove the Dyna, and the passengers give a consistent account of how the collision occurred and point clearly to the first defendant being at fault. They also show that immediately after the collision the first defendant drove the Hyundai on to Laiwaden Oval and fled the scene. It was only because of the good offices of a passing motorist, Mr Peter Yama, who saw what happened and gave chase that the first defendant was able to be quickly apprehended and the Hyundai impounded that night at Jomba Police Station. The defendants adduced no evidence but deny that the plaintiff has proven that the first defendant was negligent.

6. Mr Narokobi, for the defendants, submitted that because the plaintiff's claim has criminal attributes the relevant standard of proof is beyond reasonable doubt, which the plaintiff has failed to discharge. Evidence of the alleged criminal convictions is inadmissible, but if it is accepted as evidence, it is irrelevant to determination of civil liability, and the fact that a court exercising criminal jurisdiction found him guilty does not necessarily mean that judgment should be entered against him.

7. I will deal with the last point first, which was not contested by Mr Ilaisa, for the plaintiff, but it is a fundamental point, which needs to be emphasised from time to time. These are civil proceedings, the purpose of which is to ascertain whether the defendants are civilly liable to the plaintiff and whether the plaintiff should be awarded a civil remedy, such as damages. These are not criminal proceedings, the purpose of which is to ascertain whether a defendant has committed a criminal offence and is liable to a criminal penalty such as a term of imprisonment or a fine. The proceedings in the Madang District Court in which the first defendant was convicted of traffic offences were criminal proceedings, and he was subject to criminal penalties. The fact that he was convicted of criminal offences over the motor vehicle collision, which the District Court found that he had caused, does not extinguish all legal liability arising from the first defendant's conduct; and does not extinguish the plaintiff's right to commence civil proceedings against the first defendant and to seek civil remedies, which is what he has done. The same facts can give rise to criminal and/or civil liability (Dalin More v The State and Chief Inspector Jim Onopia & Others (1998) N1736, John Kul v The State (2010) N3898). Unless some law expressly provides otherwise, it does not matter which proceedings are commenced first and it does not matter which proceedings give rise to a decision of the court first. The decision of the court in one proceeding does not necessarily lead to the same result in the other proceeding. So Mr Narokobi is quite right to submit that even if it is accepted that the first defendant was convicted of two traffic offences that does not mean that he must be found to have been negligent for the purpose of the present proceedings.

8. It is quite another thing, however, to suggest that this court should ignore the convictions or give them little weight as evidence in the course of determining the question of fact of whether the second defendant was negligent. Two certificates of conviction have been admitted into evidence and it is too late at this stage of the trial to be arguing about admissibility. In any event the certificates of conviction are clearly admissible under Section 47 (use of convictions) of the Evidence Act, which states:

(1) In any civil proceedings the fact that a person has been convicted of an offence by or before a court in the country or by a court-martial in the country or elsewhere is, subject to Subsection (3), admissible in evidence for the purpose of proving that he committed the offence, whether he was so convicted on a plea of guilty or otherwise and whether or not he is a party to the proceedings, but no conviction other than a subsisting one is admissible in evidence under this section.

(2) The fact of a conviction is not admissible in any civil proceedings merely to prove that the person convicted has a propensity to behave in a particular manner.

(3) In any civil proceedings in which a person is proved to have been convicted of an offence by or before a court in the country or by a court-martial in the country or elsewhere–

(a) he shall be taken to have committed the offence unless the contrary is proved; and

(b) without prejudice to the reception of any other evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document that is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, is admissible in evidence for that purpose.

(4) Where in any civil proceedings the contents of a document are admissible in evidence under Subsection (3), a copy of the document, or of the material part of the document, purporting to be certified or otherwise authenticated by or on behalf of the court or authority having custody of the document, is admissible in evidence, and shall be taken to be a true copy of the document or the part of the document unless the contrary is shown.

(5) This section does not prejudice the operation of an enactment by which a conviction or a finding of fact in any criminal proceedings is made conclusive evidence, for the purposes of any other proceedings, of a fact.

9. Even evidence that the driver of a vehicle has been charged with a traffic offence in connection with a collision, without proof of conviction, may be admissible and relevant to the question of whether that driver was negligent (Titus Banga v Madang Port Services Ltd (2011) N4302). Here there is evidence, not only that the first defendant was charged with traffic offences, but that he was convicted. The fact that he was convicted of driving without due care and attention is of special significance. It shows that a court of law, exercising the judicial power of the People, has been satisfied beyond reasonable doubt that the first defendant drove the Hyundai without due care and attention. That decision has not been overturned on appeal. Evidence of the convictions is therefore relevant to the question of whether the first defendant was negligent and it is of high probative value, in that it supports the proposition being advanced by the plaintiff, that the first defendant was negligent (Mathew John Westcott v MVIL (2008) N3565). When that evidence is combined with the evidence of the plaintiff's son and the passengers on the Dyna, and taking into account that the defendants adduced no evidence to rebut the ordinary and natural inference arising from the evidence adduced by the plaintiff, it is an easy task for the court to be satisfied that the first defendant was indeed negligent. He caused the collision. He was in the wrong. He negligently performed a U-turn. He failed to keep a proper lookout. He failed to meet the standards of a reasonable driver (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779, Litina Okevi v PNG Electricity Commission (2006) N3074).

10. All that has been proven by the plaintiff beyond reasonable doubt. That high standard of proof is not, however, the standard of proof applicable in these proceedings. These are civil proceedings, so, notwithstanding that the events giving rise to the cause of action also led to criminal proceedings (in which the relevant standard of proof was beyond reasonable doubt) the relevant standard of proof here is the lower standard of proof, on the balance of probabilities (Re Moresby North East Parliamentary Election (No 2): Goasa Damena v Patterson Lowa [1977] PNGLR 448, Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414, Timothy Mong v George Doa (1997) N1540, Copland Oa and Esther Korua v Nelson Korua (1999) N1871, Vincent Kerry v The State (2007) N3127). The first defendant was clearly negligent. Liability has been established against him.

IS THE SECOND DEFENDANT VICARIOUSLY LIABLE?

11. Vicarious liability is liability that falls on one person as a result of the acts or omissions of another person with whom the first person is in a special relationship. Employers are in a special relationship with their employees and will be liable, vicariously, for the wrongful acts or omissions of their employees that are committed within the scope of their employment. Manuhu J explained the principle in Kuk Kuli v The State (2004) N2592:

For that purpose, it is necessary, at the outset, to refresh our minds on the ordinary common law meaning of vicarious liability. ... Clark and Linsell on Torts ... describes vicariously liability in the following manner:

A master is saddled with the responsibility to a third party in the event of his servant committing a tort in the course of his employment. The servant himself is also liable, and he and his master are joint tortfeasors, though in practice it is the master who is sued since he is better able to pay the damages. For vicarious liability to arise three things have to be established: a master-servant relationship; the servant committed a tort; and that he did so in the course of his employment.

12. In the present case the second defendant will be vicariously liable for the negligence of the first defendant if it is proven, as a fact, that it was his employer, that he committed the tort of negligence and that he did so within the scope of his employment. All those facts were pleaded in the plaintiff's statement of claim and they were all conceded in the defendants' defence. Despite that concession, Mr Narokobi has submitted that the second defendant is not liable as the plaintiff did not adduce evidence of the facts giving rise to vicarious liability. There is no evidence that the first defendant was an employee of the second defendant or that he was driving the truck in the course of his employment at the time of the collision. There is also no evidence, Mr Narokobi submitted, that the second defendant is a legal entity.

13. I reject those submissions as the facts in support of the elements of vicarious liability were pleaded in the statement of claim, and issue was not taken with them in the defence. The defendants were conceding that in the event that liability was established against the first defendant, liability against the second defendant would follow as a matter of course. Order 9, Rule 30 (judgment on admissions) of the National Court Rules is relevant at this point. It provides:

Where admissions are made by a party, whether by his pleadings or otherwise, the Court may, on application of any party, direct the entry of any judgment or make any order to which the applicant is entitled in the admission.

14. The defendants have made admissions by their pleadings and also by their failure to adduce any evidence at the trial. In these circumstances, the plaintiff was not obliged to adduce evidence of facts that would otherwise be necessary to establish vicarious liability. I point out that there was no formal motion or application by the plaintiff to enter judgment against the second defendant under this Rule, but I consider that that was unnecessary. There has, for the purposes of the Rule, been an application by Mr Ilaisa, for the plaintiff, in the course of submissions, for entry of judgment against the second defendant based on the underlying principle contained in the Rule. I exercise the discretion under Order 9, Rule 30 and enter judgment against the second defendant.

COSTS

15. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. There is nothing about this case to warrant departure from the general rule. The defendants will pay the plaintiff's costs.

ORDER

(1) The defendants are liable in negligence to the plaintiff, who has established that he is entitled to damages.

(2) The amount of damages to which the plaintiff is entitled shall be assessed at a separate hearing.

(3) The costs of the proceedings to date shall be paid by the defendants to the plaintiff on a party-party basis, to be taxed if not agreed.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly.
____________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiff
Narokobi Lawyers: Lawyers for the Defendants