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National Court of Papua New Guinea |
N9203
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 854 OF 2016
BETWEEN
DANIEL ELYE trading as DANIEL ELYE TAXI SERVICE
Plaintiff
AND
INSPECTOR JOSEPH KOI
First Defendant
AND
GARI BAKI – Commissioner of Police
Second Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
Waigani: Makail, J
2021: 6th July & 8th October
LIABILITY – Trial – Tort of negligence – Motor vehicle accident – Collision of two motor vehicles – Damage to motor vehicle – Taxi – Whether member of the police was negligent –Vicarious liability – Proof of – Wrongs (Miscellaneous Provisions) Act, Ch 297 – Section 1
ASSESSMENT OF DAMAGES – Assessment of damages following entry of judgment on liability – Award of damages – General damages – Special damages – Costs of repairs – Loss of earnings from taxi service business – Loss of earnings as opposed to loss of profit – Proof of – Evidence of – Statement of Profit and Loss not necessary
Cases Cited:
John Warivama v. Henry Nagt Sapau (2013) N5319
James Liwa v. Marcus Vanimo & Ors (2018) N3486
Lapune Aine v. The State (2011) N4389
Counsel:
Mr. J. Simbala, for Plaintiff
Mr. T. Mileng, for Defendants
JUDGMENT
8th October, 2021
1. MAKAIL J: This is a trial on liability and assessment of damages based on the tort of negligence. The allegation is that the first defendant is a member of the Police and the third defendant is vicariously liable for his actions and/or omissions under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.
Liability
2. On 23rd February 2013 at around 10:30 am at Poreporena Freeway in Port Moresby, the plaintiff’s taxi and a bus driven by the first defendant collided. The plaintiff’s taxi suffered extensive damage. The first defendant drove at excessive speed, failed to keep a proper lookout for other motor vehicles, failed to take heed of warnings to slow down and stop and as a result, ran the bus into the plaintiff’s taxi.
3. The defendants filed a defence on 31st October 2016 and denied the allegation and further alleged that there was no collision between the two motor vehicles and the plaintiff’s taxi did not sustain any damage.
4. The plaintiff relied on four affidavits, two by himself and two by witnesses Jerry Mamando and Wapson Lara. The defendants relied on one affidavit by the first defendant. Trial was conducted by affidavit with no cross-examination of deponents. Written submissions by counsel followed suit.
5. The plaintiff and his two witnesses asserted that the plaintiff was driving a taxi along the Poreporena Freeway from Konedobu towards Burns Peak. The witnesses Jerry and Wapson were passengers in the taxi. They were on the outside lane. The first defendant was driving a Government-issued Toyota Coaster bus for the police force and was on the right inside lane. As the bus went past them, it suddenly turned and crossed to the outside lane. Upon seeing this and to avoid hitting the rear of the bus, the plaintiff steered the taxi onto the side concrete road barrier. In the process, the rear of the bus scratched the front of the taxi.
6. Upon realising the mistake, the first defendant turned the bus around and drove over the concrete road barrier and onto the opposite lane. The bus then sped off towards Port Moresby down-town. The plaintiff drove to the top of Burns Peak and turned using the exit access and followed the bus. The bus left the freeway and took a different route through Port Road. He drove on along the freeway and arrived at the end of Port Road. He parked the taxi and they waited for the bus.
7. As the bus approached them the plaintiff stepped forward and flagged the first defendant to stop. They observed that the first defendant did not stop but drove towards them. The bus struck the right-side rear of the taxi and sped off. Later that day, parties went to the Boroko Police Station and the first defendant was arrested and charged with a traffic offence.
8. The first defendant’s version of events differed from the plaintiff and his witnesses in some respect. He asserted that when he turned the bus towards the outside lane he heard the sound of a horn coming from the rear of the bus and he pulled back. At that point, the bus did not come into contact with the taxi. Then he said that as the bus was approaching the end of Port Road, he observed a white sedan was stationary at the left side of the road parking space where the Steamship Head Office was located. The plaintiff attempted to open the driver’s door and another person attempted to open the passenger’s door. Upon seeing this, he sped off. He could not recall if the bus struck the taxi.
9. The parties’ versions of events are evenly matched. The issue is which version is credible and should be accepted. First, there is no dispute that the first defendant turned the bus and drove in the opposite direction towards Port Moresby down-town and the plaintiff followed in his taxi with his two passengers. Applying logic and common sense the question is, why would the plaintiff follow the first defendant? The logical and common-sense answer is that there must be a reason, so strong to cause the plaintiff to turn his taxi and follow the first defendant. And the reason is that, his taxi was struck by the bus driven by the first defendant when the first defendant was crossing over to the outside lane. Common sense would dictate that he would go after the first defendant to seek some form of restitution and criminal responsibility for the first defendant’s negligent driving. In the process, his taxi was struck by the bus for the second time at its right rear side. This is a strong inference open to find.
10. Secondly, the plaintiff’s version corroborated by his two witnesses that the bus struck the right rear side of the taxi at the end of Port Road is further corroborated by three photographs of the taxi after the collision depicting damage (huge dent) on its right rear side. On the other hand, the first defendant’s explanation at para. 11 of his affidavit that he “actually can’t remember where the accident took place” is too general and self-serving.
11. For these reasons, the plaintiff’s version of events is more credible and will be accepted. It is the finding of the Court that the first defendant breached his duty of care as the driver of the bus when he failed to keep a proper lookout for motor vehicles as he steered the bus to the outside lane and struck the plaintiff’s taxi at the Poreporena Freeway. Secondly, he drove at excessive speed and failed to stop and struck the plaintiff’s taxi for the second time at the end of Port Road. As a result, the plaintiff’s taxi sustained damage on its right rear side (huge dent).
12. The defendants’ counsel submitted that even if it has been established that the first defendant was responsible for causing damage to the plaintiff’s taxi, the plaintiff has failed to plead relevant facts to show that the “actions and/or omission of the [first defendant] were done during the course and within the scope of employment” to hold the third defendant vicariously liable under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297.
13. First, this submission failed to acknowledge that the plaintiff pleaded at para. 3 of the statement of claim that the first defendant “.........at all material times [was] acting in the course of and within the scope of his employment, and is therefore sued in that capacity”. This statement is sufficient to establish the nexus between the first defendant and the third defendant. Secondly, at para. 2 of the defendants’ defence, the defendants expressly admitted the allegation at para. 3 of the statement of claim. For these reasons, the defence counsel’s submission is contradictory and without merit. It is rejected.
14. It follows that there will be a further finding that the first defendant was acting in the course of his employment when he drove the bus and collided with the plaintiff’s taxi and the third defendant is vicariously liable for his negligent actions under Section 1 of the Wrongs (Miscellaneous Provisions) Act, Ch 297. There shall be a judgment on liability against the defendants with damages to be assessed.
Assessment of Damages
15. The plaintiff sought:
(a) Special damages of K17,645.68 as costs of repairs.
(b) Special damages for economic loss.
(c) General damages for mental distress, frustration and inconvenience.
(d) Interest.
(e) Costs.
Special damages (costs of repairs)
16. The plaintiff tendered quotations for costs of repairs from:
(a) Boroko Motors for K23,045.74.
(b) PNG Motors for K23,298.58.
(c) Ela Motors for K17,645.68.
17. In their respective submissions, both counsel agreed that from the three quotations the lowest sum of K17,645.68 be awarded. This being the case, this sum is awarded for costs of repairs.
Special damages for loss of earning capacity
18. The plaintiff tendered the taxi’s operating licence and registration papers issued by the National Land Transport Board and Motor Vehicles Insurance Limited including his driver’s licence for the relevant period. He also tendered copy of a certificate of registration of business name dated 20th September 2011 for a period of three years expiring on 20th September 2014. These documents have not been disputed by the defence. They go towards showing that the plaintiff was running a taxi service business under the name of Daniel Elye Taxi Service at the time of the accident.
19. In terms of damages, the plaintiff sought loss of earnings as opposed to loss of profit. Loss of earnings is the sum of money he would have made each day from the taxi services which would entail picking and dropping off a passenger at the passenger’s destination of choice in return for a fare. The fare is the income. The loss of profit is the sum of money lost after expenses are deducted from the income. It is not clear from the plaintiff’s affidavit how much he received for the fares for each passenger but at para. 25, he said that he earned about K2,500.00 on average per month. This equates to about K83.00 per day for each month. For three months, he lost an income of K7,500.00.
20. Contrast the claim for loss of earnings with loss of profit and the sum of K7,500.00 for loss of earnings from the taxi service business and it does not require the plaintiff to produce an Accountant’s Report or Statement of Profit and Loss to corroborate the loss. It is sufficient for the purpose of assessing loss of earnings based on the plaintiff’s evidence and the total sum of K7,500.00 is awarded: see John Warivama v. Henry Nagt Sapau (2013) N5319.
General damages for mental distress, frustration and inconvenience
21. The plaintiff sought general damages for mental distress, frustration and inconvenience. His counsel submitted that based on James Liwa v. Marcus Vanimo & Ors (2018) N3486 where the plaintiff was awarded K5,000.00 for mental distress, frustration and inconvenience and in Warivama v. Sapau (supra) where K5,000.00 was awarded to the plaintiff as general damages for mental distress, frustration and inconvenience in a case where the plaintiff’s motor vehicle sustained damage in a motor vehicle accident, K10,000.00 is a fair and reasonable sum to award. This sum includes inflation. Defence counsel submitted K5,000.00 is reasonable.
22. The plaintiff’s affidavit does not show the degree of mental distress and inconvenience he endured but he has been operating a taxi service business to earn a living in the city for himself. It was his means of income and he lost it all when the taxi was out of service. He also lost the comfort of driving his taxi. Consistent with the cited past cases, K5,000.00 is a fair and reasonable sum to award.
23. Adding a sum to cater for inflation as was held in the Lapune Aine v. The State (2011) N4389 for increases in the costs of goods and services over the last 10 to 12 years since the police raid in 2009 in that case where a rate of 30% inflation was adopted, 30% of K5,000.00 is K1,500.00. Add this sum to K5,000.00 gives a total sum of K6,500.00. This sum is awarded.
Interest
24. In their respective submissions, each counsel agreed that the rate of interest is 2% under Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. They also agreed that interest should be calculated from the date of filing of writ of 21st July 2016 to the date of judgment and thereafter, until final settlement.
25. Based on these submissions, interest is awarded at the rate of 2% on the total judgment sum of K31,645.68 (K17,645.68, K7,500.00 and K6,500.00) from the date of filing of writ of 21st July 2016 to date of judgment and thereafter, until final settlement under Sections 4(1) & (2) and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
Costs
26. Finally, the plaintiff sought costs of the proceeding. The defendants’ counsel submitted that each party should bear its own costs. The general rule is that costs follow the event. It means the successful party shall have its costs paid by the losing party on a party-party basis.
27. In the present case, there are no special reasons given by the defendants to warrant a departure from this general rule. For this reason, it is ordered that the defendants shall pay the plaintiff’s costs of the proceedings, on a party-party basis, to be taxed, if not agreed.
Final Orders
28. The final orders of the Court are:
1. Judgment on liability is entered against the defendants.
of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015
________________________________________________________________
Harvey Nii Lawyers: Lawyers for Plaintiff
Solicitor General: Lawyers for Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2021/444.html