Warua v Wereh [2022] PGNC 107; N9513 (28 March 2022)

N9513

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1665 OF 2018 (CC1)

BETWEEN:

LEKE WARUA

Plaintiff

AND:

DAVID WEREH,

SECRETARY, DEPARTMENT OF WORKS

First Defendant

AND:

THE INDEPENDENT STATE OF PAPUAN NEW GUINEA

Second Defendant

Waigani: Tamade AJ

2021: 14^th December

2022: 28^th March

TORT – Negligence – plaintiff must prove elements of tort – existence of a breach of duty of care failure to establish a cause of action – claim refused.

NEGLIGNECE – Contributory Negligence – Road accident – Damage to PMV – reckless driver situation – no regard for PMV and passenger safety – driving on closed road under maintenance – causing a collision with backhoe maintaining the closed road.

Cases Cited

The following cases are cited in this judgement:

Baikisa v J & Z Trading Ltd [2016] PGNC 13; N6181

Arua Lowa & 2 Ors v State (2015) N5849

Brown v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 409

Moka v MVIL [2004] PGSC 38, SC729

Raim v Korua [2010] PGSC 8; SC1062

Counsels

Mr Jimmy Apo, for the Plaintiff

Mr Kevin Kipongi, for the Defendant

28^th March, 2022

1. TAMADE AJ: On 12 March 2018, a PMV 25-seater coaster bus belonging to the Plaintiff and driven by one Simon Yoannes was driving along the Highlands Highway.

2. At Kagul River on the Western Highlands border, there was a landslip at a section of the road which caused mud and debris onto the highway and therefore the State through its agents and a contractor were working to clear the section of the road so as to ensure the safety of vehicles and people to pass through the highway.

3. The Plaintiff claims through the Affidavit Evidence of the driver one, Simon Yoannes attaching a Statement done after the said incident stated that at about 2:30 pm on 12 March 2018, he was driving the PMV bus belonging to the Plaintiff which was a 25-seater bus full of passengers from Mt Hagen and the bus was heading to Ialibu in Southern Highlands Province.

4. Simon Yoannes, therefore, states that when the bus reached Wara Kalap near Lower Kagol, he saw that the Department of Works had engaged a backhoe machine to remove and clear the mud, landslip and debris on the road. The driver stated that the backhoe had stopped working and was parked beside the road perhaps to give way to a Toyota Land Cruiser that travelled up from the Southern Highlands way. After the Land Cruiser passed, the backhoe started working again and was reversing.

5. Simon Yoannes stated that the backhoe was reversing and did not see that he was driving the bus forward. Yoannes tried to apply the brakes but as the road was slippery from the rain and mud, he could not stop the bus and the bus skewed towards the reversing backhoe. He stated that people from the bus and his crew attempted to warn the driver of the backhoe to stop reversing the backhoe however it was too late as the backhoe bumped the skewing coaster bus which sustained damage.

6. Mr Rayman Warua was the PMV crew of the said PMV bus. He said in his evidence based on a statement written after the incident that he was the crew on that day with the driver of the bus, Simon Yoannes. He agrees that the bus was travelling from Mt Hagen to Ialibu full of passengers. When the bus reached Wara Kalap at Lower Kagol, he saw that the Department of Works was working on clearing the road with a backhoe parked on the road perhaps to give way to a Land Cruiser that was oncoming from Southern Highlands way. Once the Land Cruiser had passed, the backhoe started working again to clear the mud and debris from the road. Rayman Warua’s statement is in exact terms as the statement of Simon Yoannes.

7. Rayman Warua also stated that the backhoe was reversing as the PMV bus was driving towards it and the driver of the PMV bus could not stop the bus as the backhoe was reversing at excessive speed and due to the slippery road, the PMV bus skidded towards the backhoe which hit the PMV bus causing damage. Warua stated that the people in the bus screamed for the driver of the backhoe to stop but he could not hear them, and the backhoe hit the oncoming bus. He also stated that the backhoe did not sustain any damage but only the PMV bus which he was a crew on.

8. This is quite a story of an oncoming PMV bus unable to apply breaks and skidding on a slippery road to hit a reversing backhoe working on the road to clear mud and debris on the road caused by bad weather and a landslide.

9. The State on the other hand produced evidence of one Terry Tanda Philip who was the Regional Works Manager for the Highlands Region based in Mt Hagen, Western Highland Province. The Plaintiff’s counsel objected to the evidence of Philip and submitted that the Court should not put any weight on this evidence as Philip was not present at the scene of the incident and his evidence should not be believed.

10. Terry Tanda Philip however deposes to the Affidavit in his position as the Regional Works Manager responsible for the road clearance works along the highway at the time of the incident.

11. Philip states that the backhoe was working on the side of the road on the lane where there was oncoming traffic from Southern Highlands towards Mt Hagen whilst the Plaintiff’s vehicles was coming from Mt Hagen on the opposite lane to Ialibu (SHP). Philip states that the backhoe was working on the closed lane as that intersection of the highway was closed to the travelling public due to emergency maintenance works to clear the road. Philip states that the incident happened on the closed lane when the driver of the PMV bus crossed over to the closed lane intending to move over to the free lane in an attempt to cut traffic however his attempts to hit his brakes failed and the PMV bus skidded hitting the backhoe. Philip stated that the backhoe also sustained damages as well as the PMV bus.

12. Even though Terry Tanda Philip was not at the scene of the incident, I am more inclined to believe his evidence as to the more sensible and truthful account of what transpired on that day. Road works happen all the time and where there are road works, there is usually signs put up to slow and direct traffic to use only one lane and or half roads closed to allow machines to clear road and maintain it etc.

13. The PMV bus driven by Simon Yoannes was coming from Mt Hagen and was driving towards the reversing backhoe working on a closed section of the highway. This implies to me that the PMV bus was trying to cut corners and cut traffic to get ahead from other vehicles, something we see too often on the roads because of mischievous PMV bus drivers cutting corners, frustrating traffic, and trying to get ahead. From the photographs of the incident attached to the Affidavit of Terry Tanda Philip, the PMV bus was clearly on the closed lane and hit the back of the backhoe. Annexure C of Philip’s affidavit shows Simon Yoannes, the driver of the PMV bus with shoulders hunched, hands behind his back and a solemn face walking away from the PMV bus.

14. The Plaintiff claims negligence against the driver of the backhoe and the Defendants however I find no negligence by the driver of the backhoe. Mr Simon Yoannes the driver of the said PMV bus has contributed entirely to the accident thereby placing the PMV bus at the accident hitting the backhoe.

15. The Court stated in the case of Baikisa v J & Z Trading Ltd [2016] PGNC 13; N6181 (12 February 2016) that:

“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.”

16. The Plaintiff has relied on the case of Arua Lowa & 2 Ors v State (2015) N5849 that in considering the evidence, the application of common sense and logic should be applied. The Court in Arua Lowa & 2 Ors v The State by referring to the case of Bonu and Bonu v The State [1997] PGSC 11; SC528 (24 July 1997) stated that;

“The way to receiving, assessing and determining whether or not to accept a witness and his testimony is a well trodden one. Rules of evidence have much to say and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this and the National Courts.”

17. The Plaintiff submits that I should not give weight to the evidence of Terry Tanda Philip who was not present at the scene of the accident. I find that Terry Tanda Philip’s evidence gives a more common-sense explanation of how the PMV bus was on the closed lane and why it hit the reversing backhoe, it was not supposed to be there in the first place. It was there because the driver of the PMV Bus, Simon Yoannes tried to cut the waiting traffic to get ahead thus resulting in the accident.

18. The principle of contributory negligence has been discussed in a lot of cases concerning motor vehicle accidents and the common law principle of ‘volenti non fit injuria’. In the case of Brown v Motor Vehicles Insurance (PNG) Trust [1980] PNGLR 409 (3 November 1980), the Court discussed contributory negligence in the situation where a passenger has taken it upon himself to accept a ride from a driver who was clearly drunk and or intoxicated and driving a motor vehicle. The passenger contributes to his own injury by getting on a vehicle driven by a drunk driver and therefore the principle has been used to mitigate damage resulting out of negligence as a result.

19. The State has relied on the case of Moka v MVIL [2004] PGSC 38, SC729 (1 April 2004) where I quote the following passage in this case in regard to contributory negligence;

"Contributory" in modern cases of negligence means "causing directly". The onus is on the defendant. In this case there was undisputed evidence that the respondent’s insured was intoxicated. He collided with the appellant and the deceased who were pushing their vehicle off the road after it broke down. Certainly, if the insured driver had not been drunk, he might have avoided the collision. The appellant did not intentionally run onto the road thereby directly causing the collision. Neither was the act of pushing the vehicle of the road an intentional act to cause the collision. The respondent’s driver was intoxicated, and he collided with the appellant and the deceased. Given that evidence, which was undisputed, we are unable to agree with the trial Judge’s finding of contributory negligence. The injuries were directly caused by the negligence of the defendant’s insured.

We are reminded by what Buckwell, LJ said in The Older [1949] WN 488; 66 TLR (Pt 1) 105 CA:

"It is a very salutary principle .................. that when one man puts another in a position of difficulty the Court ought to be slow to find the other man negligent, merely because he may have failed to do something which, looking back on it afterwards, might possibly have reduced the amount of damage."

With respect, we are of the view that the trial Judge was quick in finding that the appellant caused the accident therefore liable of contributory negligence.

Furthermore, by implication, the trial Judge seemed to have shifted the duty of care to the appellant when it was the respondent’s insured driver who owed a duty of care. There is no evidence that the appellant did not take reasonable care. Perhaps Lord Simon’s statement in Nance v. British Columbia Electric Railway [1951] AC 601 at 611; 2 All ER 448 PC would demonstrate this point.

"But when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such defence is to prove.............. that the injured did not in his own interests take reasonable care of himself and contributed to his own injury."

20. The case of Brown v MVIL referred herein states that “The standard of care to be attributed to the driver of a motor vehicle is an objective one, measured by the standard of a skilled, experienced and objective driver...”

21. As to whether the Defendants are negligent in this matter, the Defendants submit that the Plaintiff has not proven the elements of negligence as outlined in the Supreme Court case of Raim v Korua [2010] PGSC 8; SC1062 (2 July 2010);

“For it is trite, where a party alleges negligence against another, it must prove the following elements:

1. there is a duty of care owed by one party to the aggrieved other;

2. there is a breach of the duty of care by the party to the aggrieved party; and

3. as a result of the breach of the duty of care, the aggrieved party suffers injury which must be compensated.”

22. I find that the driver of the Plaintiff’s vehicle has contributed to the damage of the Plaintiff’s vehicle and has caused the accident by driving onto a closed land where workmen and the backhoe were using to clear and maintain the roads for the public to use. The PMV bus, therefore, drove towards the reversing backhoe and skidded thereby causing the PMV bus to hit the reversing backhoe. It was Simon Yoannes who had control of the PMV bus by driving it and therefore he exercised that decision to cut traffic, therefore, taking a closed lane and therefore causing the collision with the reversing backhoe. The Plaintiff has failed to prove that the Defendants were negligent and therefore I will dismiss this claim.

23. I, therefore, make the following orders:

1. The Plaintiff’s claim is refused, and these proceedings are dismissed in its entirety.
   
2. Plaintiff shall meet the Defendants costs on a party/party basis.
   

Orders accordingly.

________________________________________________________________

Apo & Co Lawyers: Lawyers for the Plaintiff

Solicitor General’s Office: Lawyers for the Defendant