Kaipa v RD Tuna Canners Ltd [2017] PGNC 33; N6650 (15 February 2017)

N6650

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No.11 OF 2010

STEVEN KAIPA, SUSIE KAIPA & BETTY KAIPA
Plaintiffs

V

RD TUNA CANNERS LIMITED
Defendant

Madang: Cannings,J
2012: 10 September,

2013: 5 April,

2015: 24 April, 18 August

2017: 15 February

TORTS – negligence – plaintiffs’ claim that they were shocked due to sight of contents of can of tinned fish, manufactured by defendant, purchased from retail outlet – claim that tinned fish contained foreign object: condom –elements of tort of negligence – whether defendant owed duty of care to plaintiffs – whether defendant was negligent – whether defendant’s negligence caused injury to plaintiffs – whether injuries not too remote.

The plaintiffs claimed that they purchased from a retail outlet an unopened can of tinned fish that had been manufactured by the defendant, that they were preparing a meal intended to include the of the contents of the can and were shocked upon before realising that it contained, amongst the expected contents, a foreign object, namely a condom, and that they suffered injury as a consequence. They sued the defendant manufacturer, claiming damages for negligence. The defendant challenged the assertions of fact on which the plaintiffs’ case was based and denied the allegation of negligence. The defendant argued that the plaintiffs’ evidence was unreliable, unbelievable and false. A trial was conducted on the issue of liability.
Held:

(1) The facts, as alleged by the plaintiffs, were proven to have occurred: they purchased from a retail outlet an unopened can of tinned fish manufactured by the defendant; they opened the can, intent on eating its contents before realising that it contained a condom, they were shocked and became sick as a consequence.

(2) To establish a cause of action in negligence a plaintiff must prove the elements of the tort: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached that duty (acted negligently); (c) the breach of duty caused damage to the plaintiff; and (d) the type of damage was not too remote.

(3) Here: (a) the defendant, the manufacturer of a product intended for consumption by consumers, owed a duty of care to the consumers, including the plaintiffs; (b) the doctrine of res ipsa loquitur (the thing speaks for itself) applied and it was proven that the defendant was negligent; (c) the defendant’s negligence caused injury to the plaintiffs; and (d) the types of injuries incurred by the plaintiffs were not too remote.

(4) All elements of the tort of negligence were proven and it was declared that the defendant is liable in negligence.

Cases cited:

Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181
Burns Philp (New Guinea) Limited v Maxine George (1983) SC259
Donoghue v Stevenson [1932] AC 562
Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184
Kembo Tirima v Angau Memorial Hospital Board (2005) N2779
Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650
Michael Tenaram Balbal v The State (2007) SC860
Rimbink Pato v Umbu Pupu [1986] PNGLR 310
Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260
Welsh Samor v The State (2014) SC1398

Counsel:

T M Ilaisa, for the Plaintiffs
Y Wadau, for the Defendant

15^th February, 2017

1. CANNINGS J: The issue in this case is whether the defendant, RD Tuna Canners Ltd, is liable in damages to the plaintiffs, Steven Kaipa, Susie Kaipa and Betty Kaipa.

2. The plaintiffs claimed that they purchased from a retail outlet an unopened can of “Diana Tuna” brand of tinned fish that had been manufactured by the defendant, RD Tuna Canners Ltd, that they were preparing a meal intended to include the of the contents of the can and were shocked upon before realising that it contained, amongst the expected contents, a foreign object, namely a condom, and that they suffered injury as a consequence. They sued the defendant manufacturer, claiming damages for negligence. The defendant challenged the assertions of fact on which the plaintiffs’ case was based and denied the allegation of negligence. The defendant argued that the plaintiffs’ evidence was unreliable, unbelievable and false.

A trial was conducted in 2012 on the issue of liability. After the close of evidence, before submissions, the Court ordered on 5 April 2013 with the consent of the parties that the proceedings be referred to mediation. Mediation was conducted but it failed and the matter returned to court for submissions in 2015. There are three issues:

1. What are the facts?
   
2. Have the plaintiffs established a cause of action in negligence?
   
3. What orders should be made?
   
1. WHAT ARE THE FACTS?
   
3. This issue is dealt with in the following way: first, the evidence is outlined; secondly the evidence is set out in detail; thirdly, observations of the evidence are recorded; finally, findings of fact are made.
   

Outline

4. The plaintiffs’ case was based on the affidavits of two of the plaintiffs and oral testimony of the same two plaintiffs and an additional witness, each of whom was subject to cross-examination. There was no evidence from the defendant. On the day set for the defendant to present its evidence, it was not ready to proceed and its application for adjournment was refused. A subsequent application by the defendant to reopen the evidence was also refused.
   

Evidence for the plaintiffs

5. The plaintiffs’ evidence is summarised in the following table.
   

No	Name	Description
1	Steven Kaipa	Principal plaintiff, a senior Police officer, resident of Clifton Police Barracks, Madang
Evidence: He resides with his family at Clifton Police Barracks – on 9 February 2006 [note that the statement of claim pleads that the date of the incident was 19 February 2006] he went into Madang town with his wife, Betty Kaipa, and purchased at the Best Buy supermarket, a 185-gram can of Diana Tuna tinned fish – that evening, after he and his wife returned to their house, his wife asked their daughter, Susie Kaipa (the second plaintiff) to cook dinner consisting of rice, greens and the Diana Tuna tinned fish they had purchased earlier that day. He was not with Susie while she cooked the meal but he was in the vicinity and he knew that she was cooking the meal – he and his wife heard hysterical screaming from Susie and rushed to find out the cause – she pointed to a condom she saw coming out of the tinned fish, which had landed on top of the tinned fish she had poured into a frying pan – he could not believe his eyes and was shocked – he became angry and frustrated and threw the frying pan and its contents out through the door and on to the outside lawn – they did not have a decent meal that night, they just ate bread and tea The next day, 10 February 2006, he took the condom and the can of tinned fish to the police station and recorded the matter in the occurrence book – he contacted R D Tuna and they sent their quality assurance officer to the police station to meet with him – he showed her the condom and the can from which it had emerged – she would not believe that the condom had come out of the can – he later took those items to the provincial health inspector and then to the pathology department at Modilon General Hospital. Annexed to his affidavit was an incident report prepared by M G Uloulo, OIC of the pathology department at the hospital [annexure A]. Also annexed is a copy of a photograph of the condom referred to in his affidavit [annexure B]. He kept the empty can in a fridge at the police station for a while, but it went rotten and he had to discard it. Word went around town that his family were “consumers of condom tinned fish” and this had an adverse effect on his wife’s income earning capacity In cross-examination the witness was quizzed by the defendant’s counsel, Mr Wadau, about whether at any stage he took the can to the defendant – he replied no, but he showed the can to the quality assurance manager at the police station – he did not eat any of the contaminated fish, but just seeing it gave him a shock and made him feel distressed and angry – asked how it could be that a condom, which is made of rubber, could survive the retorting phase of production, in which the can of tinned fish is heated at a very high temperature, and remain intact, the witness replied that he did not know the answer to that question – he could only tell the Court what he saw, as a consumer: a condom in tinned fish is what he saw – though he stated in his affidavit that he took the photograph annexed to his affidavit, that was, in fact, not the case.
2	Betty Kaipa	A plaintiff, wife of the principal plaintiff
Evidence: Her evidence was similar to that of her husband – she stated that the incident occurred on 9 February 2006 – she was sitting down with her husband relaxing on the steps of their house while Susie cooked the evening meal – they suddenly heard hysterical screaming from Susie – they ran up the steps to see what was happening – she pointed to what she found inside the can of tinned fish: a condom – she (the witness) tried to calm down Susie, who was still screaming. Word went around town that she (the witness) was “the mother of condom consumer” and this had an adverse effect on her selling of cooked foodstuff at the Four Mile market – she eventually stopped selling. In cross-examination she stated that she was close to the kitchen while Susie was cooking the meal – she did not eat any of the tinned fish.
3	Gordon Uloulo	Medical technologist, pathology department, Modilon General Hospital
Evidence: In February 2006 he was OIC of the laboratory at the hospital – Steven Kaipa brought in an empty can of Diana Tuna, with a condom inside it – he conducted diagnostic testing and prepared an incident report (annexure A to the affidavit of Steven Kaipa). In cross-examination the witness could not recall what had happened to the can brought to him for testing – he detected bacteria in the can, but he conceded that bacteria would naturally be found in any canned food after the can had been opened.

Observations

6. I make the following observations on the plaintiffs’ evidence
   

First, only two of the three plaintiffs, Steven Kaipa and his wife, Betty Kaipa, gave evidence. The other plaintiff, Susie Kaipa, did not give evidence. The Court was not informed of any good reason that she could not give evidence. I have decided that without direct evidence from a plaintiff and without a good explanation for her failure to give direct evidence, it would not be proper to consider making a finding of liability in their favour.

Secondly, as pointed out by Mr Wadau, for the defendant, the plaintiffs’ evidence of the meal being cooked on 9 February 2006 conflicts with the statement of claim, which identifies the date as 19 February 2006. The date in the statement of claim should have been amended. It was not. However, the plaintiffs’ evidence consistently refers to 9 February 2006, so it can be safely determined, despite the conflict, that the relevant date is 9 February 2006.

Thirdly, there is a lack of detail in the plaintiffs’ evidence. For example:

• There is no receipt or any record of purchase to verify the claim of the plaintiffs that the can of Diana Tuna was purchased at the Best Buy store.
  
• None of the plaintiffs gave evidence of the details of the production date, batch number or use-by date that were on the can or its label.
  

Fourthly, there is little corroboration of the plaintiffs’ evidence. I note the following:

• The report of Mr Uloulo, Medical Technologist, Pathology Department, Modilon General Hospital (annexure A to the affidavit of Steven Kaipa) is, at best, evidence only of a can of tinned fish and a condom being brought to him. Mr Uloulo states that the items were presented on 10 February 2006. It is of little probative value.
  
• The photograph of an opened can of Diana Tuna and a condom (annexure B to the affidavit of Steven Kaipa) has no probative value. I uphold Mr Wadau’s submission that the photograph must be ignored. It is just a photocopy of photograph, there is no proper evidence as to who took the photograph and when it was taken. Also, as pointed out by Mr Wadau, the can of tinned fish in the photograph still has fish meat in it, leading to the inference that it is not the actual can referred to in the evidence. The photograph fails to meet the requirements of Section 75 (affidavit or declaration of maker of print from photographic negative, etc) of the Evidence Act.
  

Findings of fact

7. Because of the deficiencies in the plaintiffs’ evidence and the absence of evidence for the defendants, the task of making findings of fact has not been straightforward. Ultimately, however, bearing in mind that it is the plaintiffs’ obligation to prove their case, and not the defendant’s obligation to disprove the plaintiffs’ case, I am satisfied that on the balance of probabilities, the plaintiffs’ version of events should be accepted, for the following reasons:
   
1. I was impressed by the quality of the oral evidence of the plaintiffs Steven Kaipa and Betty Kaipa. Both were cross-examined vigorously. Both were unshaken about what happened.
   
2. I have had regard to the sound demeanour of all plaintiffs in the witness box. In other jurisdictions such as Australia and New Zealand, which now have available a high level of forensic evidence to assist courts in determining contested facts, particularly in criminal cases, searing criticism has been made of judges giving directions to juries that invite them to consider the demeanour of witnesses in deciding who is telling the truth. However, in PNG the situation is different. We rarely decide cases according to forensic evidence. The demeanour of the witness remains an important consideration for the judge, as the tribunal of fact, to take into account when assessing the credibility of a witness and the believability and probative value of his or her evidence (Rimbink Pato v Umbu Pupu [1986] PNGLR 310, Michael Tenaram Balbal v The State (2007) SC860, Welsh Samor v The State (2014) SC1398). I was impressed by the demeanour of the plaintiffs. By that I mean the way that they gave their evidence: their answers were direct and to the point, they stuck to their stories, they were adamant that this incident happened. They did not appear to be lying. They appeared to be giving an honest account of what happened. As to Steven Kaipa I take judicial notice of the fact that he was a prominent and senior member of the Police Force and it must be considered unlikely that he would give false sworn testimony.
   
3. The evidence of Steven Kaipa and Betty Kaipa was consistent.
   
4. Though, as I have observed, the plaintiffs’ evidence could have much improved with more detail and corroboration, I do not draw any inferences, adverse to the credibility of the plaintiffs’ evidence, from those shortcomings in the plaintiffs’ case.
   
5. I have considered the possibility that Steven Kaipa and Betty Kaipa gave false evidence in an attempt to get money from the defendant through a bogus claim. Steven Kaipa is the principal plaintiff and the possibility exists that he conspired with and coached his wife to give fabricated evidence. I rule out that possibility as it would require conjuration and maintenance of a scam that would be too difficult to maintain over such a long period, from the first part of 2006 (when the incident took place), through 2010 (when the proceedings were filed), to 2012 (when they gave oral evidence).
   
6. I have concluded that the discrepancy in the date of the incident are immaterial. The evidence was at least consistent that it happened on 9 February 2006. Mr Wadau did not make an issue of the discrepancies in his submissions. It is something that should have been ironed out by the plaintiffs’ lawyers but ultimately the discrepancy in dates has not dissuaded me from accepting the plaintiffs’ evidence.
   
7. I take judicial notice of the fact that at least five other similar cases were commenced against RD Tuna Canners in the period from 2008 to 2010. In all cases the plaintiffs claimed that they had purchased a can of Diana Tuna tinned fish and in the process of consuming the contents discovered a condom or its remnants and as a consequence suffered nervous shock and became physically ill. I heard those cases at the same time as this one (WS 1284/2008, WS 1285/2008, WS 1286/2008, WS 1287/2008 and WS 1292/2008). In all cases the plaintiffs are represented by the same lawyers, and the defendant is represented by the same lawyers. Neither side in the present case has asked that any inferences be drawn from this scenario. The plaintiffs did not attempt to run a ‘similar fact evidence’ sort of argument. The defendant did not attempt to run an argument that some sort of grand conspiracy was afoot. So I have, from the existence of the related cases, drawn no inference, adverse to or supportive of the present plaintiffs’ case, which has been dealt with on its merits.
   
8. I therefore make the following findings:
   
   1. On Thursday 9 February 2006 Steven Kaipa and Betty Kaipa purchased an unopened 185-gram can of Diana Tuna tinned fish, from a retail outlet in Madang town, the Best Buy retail store.
      
   2. The can was manufactured by the defendant at its cannery near Madang and sold by the defendant, probably to an intermediary, with the intention that it be eventually available for sale to consumers, such as Steven Kaipa and Betty Kaipa, at retail outlets, including the Best Buy store.
      
   3. That evening, Steven Kaipa and Betty Kaipa’s daughter, Susie Kaipa prepared dinner for the family at their home at Clifton Police Barracks.
      
   4. Susie Kaipa boiled rice and greens and was about to pour the can of tinned fish, which she had opened, into a frying pan when she notice that, together with the fish meat, the can had a condom in it. She was shocked and screamed hysterically.
      
   5. Steven Kaipa and Betty Kaipa were sitting close to the kitchen and upon hearing their daughter scream, rushed to the kitchen and saw what their daughter was screaming about: a condom on top of the fish.
      
   6. Though none of them ate any of the fish, the sight of the condom shocked them and the thought of eating tinned fish contaminated by a condom, made them feel ill and confused and worried.
      
   7. The next day, 10 February 2006, Steven Kaipa reported the matter to the police, the health inspector and Modilon General Hospital.
      
   8. The family members, in particular Betty Kaipa, were subsequently the subject of ridicule in the local community as they came to be known as consumers of condoms in tinned fish and this affected Betty Kaipa’s income earning capacity.
      
2. HAVE THE PLAINTIFFS ESTABLISHED A CAUSE OF ACTION AGAINST THE DEFENDANT?
   
9. To establish a cause of action the plaintiffs must prove the four elements of the tort of negligence, ie:
   

(a) the defendant owed a duty of care to the plaintiffs;

(b) the defendant breached that duty (ie acted negligently);

(c) the breach of duty caused injury to the plaintiffs;

(d) the type of injury was not too remote.

10. See generally J G Fleming, The Law of Torts, 5^th edition, LBC Information Services, © 1977, Chapter 6, Negligence: Introduction, pages 104-105. In some cases, I have said that there are five elements, the fifth being that the plaintiff rebut any defences such as contributory negligence and voluntary assumption of risk (eg Kembo Tirima v Angau Memorial Hospital Board (2005) N2779). On reflection I think it is better to treat such defences separately and not regard them as giving rise to an element that must be proven by the plaintiff. In the present cases no such defences were raised by the defendant so it is not necessary to address the question of their rebuttal. Each of the four elements is now addressed in turn.
    

(a) Duty of care

11. In the classic British case of Donoghue v Stevenson [1932] AC 562, the plaintiff, Mrs Donoghue, became ill and suffered shock after discovering that she had consumed, in a café in Scotland, ginger beer that contained a decomposed snail. The ginger beer was purchased from the café proprietor, who had purchased it from the defendant, the ginger beer manufacturer, Mr Stevenson. The question arose whether the plaintiff consumer had a cause of action in negligence against the defendant manufacturer, and that question turned on whether the manufacturer owed a duty of care to the plaintiff, a consumer. The case went to the House of Lords and Mrs Donoghue won. The House of Lords decided by a 3:2 majority that Mr Stevenson owed a duty of care to Mrs Donoghue and that she had established a cause of action in negligence. The decision changed the course of the common law. The leading opinion was given by Lord Atkin.
    
12. As to the general concept of duty of care, his Lordship offered the following opinion, which is probably the most often quoted in the history of the common law, at 580:
    

The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, 'Who is my neighbour?' receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question.

13. As to the circumstances in which a manufacturer owes a duty of care to a consumer, Lord Atkin stated:
    

If your Lordships accept the view that this pleading discloses a relevant cause of action, you will be affirming the proposition that by Scots and English law alike a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him, with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care.

It is a proposition which I venture to say no one in Scotland or England who was not a lawyer would for one moment doubt. It will be an advantage to make it clear that the law in this matter, as in most others, is in accordance with sound common sense.

14. It has been accepted, almost without question, since Donoghue v Stevenson was decided, that it is an integral part of the common law of negligence that the manufacturer of a product will owe a duty of care to the ultimate consumer of the product if the following conditions exist:
    
    • the manufacturer sells the product in a form showing that the manufacturer intends the product to reach the ultimate consumer in the same form it left the manufacturer;
      
    • there is no reasonable possibility of intermediate examination of the product;
      
    • the manufacturer knows that if reasonable care is not taken in manufacturing the product, injury to the consumer’s life or property will be the result.
      
15. Papua New Guinea adopted the above principles of the common law at Independence, which form part of our underlying law. Those principles apply here, and the conditions are satisfied. The only reasonable inferences to be drawn from the facts are that:
    
    • the defendant manufactured, then sold, its Diana Tuna brand of tinned fish in a form, in cans, showing that it intended its product to reach consumers, such as the plaintiffs, in the same form it left its cannery;
      
    • there was no reasonable possibility of intermediate examination of the contents of the cans;
      
    • the defendant knew that if reasonable care were not taken in manufacturing the product, injury to consumers would result.
      
16. The defendant owed a duty of care to the plaintiffs. The first element of negligence is proven.
    

(b) Breach of duty

17. The question is whether the defendant breached its duty of care to the plaintiffs. Did the defendant act negligently? Did it fail to take reasonable care? At this point of a negligence trial, if there is a lack of evidence as to how or why some event happened, it is appropriate apply the principle of res ipsa loquitur (the Latin maxim, ‘the thing speaks for itself’). The Court determines the facts and then poses the question: do those proven facts lead to only one conclusion, that the defendant was negligent? If the answer is yes, the defendant is negligent. That is my simplified explanation of the principle. As I said in Anita & Andrew Baikisa v J & Z Trading Ltd (2016) N6181 (the case of contaminated fried rice purchased from a kai bar in Madang), other Judges have explained it in different ways.
    
18. In Burns Philp (New Guinea) Limited v Maxine George (1983) SC259 McDermott J explained res ipsa loquitur in these terms:
    

The accident must bespeak the defendant's negligence and be such as to raise two inferences: (1) that the accident was caused by a breach by somebody of a duty of care to the plaintiff, and (2) that the defendant was that somebody.

19. In Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260 Woods J put it this way:
    

Res ipsa loquitur is no more than a rule of evidence based on common sense which raises a presumption of fact in the absence of any other evidence of explanation that the defendant has been negligent. It suggests that because something went wrong and in the normal scheme of things such would not go wrong unless someone was negligent but no negligence can be found here nevertheless the thing speaks for itself and common sense says there must have been negligence.

20. Hartshorn J explained the operation of the principle in Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650:
    

The principle of res ipsa loquitur may be invoked when three elements are established:

(a) there is an “absence of explanation” of the occurrence that caused the damage;
(b) the occurrence was of a kind that does not ordinarily occur without negligence; and
(c) whatever caused the occurrence was under the control of the defendant.

21. I find that the principle of res ipsa loquitur should be invoked in this case. Applying my simplified approach set out above: the proven facts that the defendant manufactured a can of tinned fish intended for retail sale and human consumption, which contained a condom,leads to only one conclusion: that the defendant was negligent.
    
22. It is not necessary for the plaintiffs to prove how the defendant was negligent. Maybe the condom fell into the fish by accident. Maybe a rogue or disgruntled employee placed it in the can to embarrass their employer. None of these things had to be proven as the facts speak for themselves and lead only to the conclusion that the defendant was negligent.
    
23. If the approach outlined by McDermott J in Burns Philip is applied: the “accident” (the plaintiffs being shocked due to the sight of a condom in their fish) bespeaks (is evidence of) negligence. The accident is such as to raise two inferences: (1) the accident was caused by a breach by somebody of a duty of care to the plaintiffs, and (2) that the defendant (the manufacturer) was that somebody.

24. If the approach outlined by Woods J in Noki is applied: something went wrong. The plaintiffs became ill due to consuming and seeing tinned fish containing a condom. In the normal scheme of things that would not happen unless someone was negligent. The thing speaks for itself and common sense says that the person (the defendant) who manufactured the tinned fish must have been negligent.
    
25. If the approach outlined by Hartshorn J in Marshall Lagoon is applied: (a) there is an absence of explanation about how the can of tinned fish can to contain a condom; (b) tinned fish does not ordinarily contain condoms, without negligence; and (c) whatever caused the condom to be in the can was under the control of the defendant.
    
26. The application of all those expositions of the principle of res ipsa loquitur leads to the same conclusion: the defendant breached its duty of care to the plaintiffs. It was negligent. The second element of negligence is proven.
    

(c) Causation

27. This element can be proven by asking the simple question: would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant? (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779). If the answer is ‘no’, the element of causation is established. If the answer is ‘yes’, causation is not established.
    
28. I have already found as a fact that the plaintiffs felt and/or were sick, and shocked, as a result of consuming the tinned fish containing a condom. There is no evidence of anything else being the cause. The answer to the question ‘would the plaintiffs have been sick and shocked but for the negligent conduct of the defendant?’ is no. The third element of negligence is established.
    

(d) Remoteness

29. The remoteness issue is often not regarded as a separate element of the tort of negligence. Sometimes it is brought within the causation element. However, I think it is better regarded as a fourth element. Whether it is dealt with separately or not, plaintiffs must establish that the type of injury for which they are claiming damages was reasonably foreseeable (ie not too remote). As Prentice CJ explained in Government of Papua New Guinea v Elizabeth Moini [1978] PNGLR 184:
    

This consideration flows from the judgment of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (“The Wagon Mound”) [1961] UKPC 1; [1961] AC 388. In that case the general principle laid down was that "the essential factor in determining liability for the consequence of a tortious act ... is whether the damage is of such a kind as a reasonable man should have foreseen".

30. Here the plaintiffs are claiming, as pleaded in the statement of claim, damages for loss of income by Betty Kaipa, general damages for psychological trauma and for nervous shock, as well as exemplary damages. They will need to present evidence of these types of damage if the case proceeds to a trial on assessment of damages. However, for present purposes, I am satisfied that all of those types of damage were reasonably foreseeable. They are not too remote. The fourth element of negligence is established.
    

Conclusion

31. The plaintiffs Steven Kaipa and Betty Kaipa have proven all elements of the tort of negligence. A cause of action has been established.
    

3 WHAT ORDERS SHOULD BE MADE?

As this trial was confined to the issue of liability, I will declare that the plaintiffs who have given evidence have each established a cause of action in negligence against the defendant, which is liable in damages. Unless the parties agree to settle the matter, the cases will proceed to an assessment of damages at a separate trial.

As to costs, 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-party basis. The question of costs is a discretionary matter. There are no special circumstances in this case that warrant departure from the general rule.

ORDER

(1) The plaintiffs Steven Kaipa and Betty Kaipa have established a cause of action in negligence against the defendant.

(2) The plaintiff Susie Kaipa has not established a cause of action in negligence against the defendant and her claim is entirely dismissed.

(3) The plaintiffs referred to in order (1) are entitled to damages which shall be subject, in the absence of agreement between the parties, to assessment at a separate trial.

(4) Costs of the proceedings shall be paid by the defendant to the plaintiffs, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly,

_________________________________________________________
Thomas More Ilaisa Lawyers: Lawyers for the Plaintiffs

Young Wadau Lawyers: Lawyers for the Defendant