Kiosa v Ongombia [2022] PGNC 350; N9758 (15 July 2022)

N9758

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 652 OF 2017

BETWEEN
RICKY KIOSA
Plaintiff

AND
CHIEF INSPECTOR GEORGE ONGOMBIA
First Defendant

AND
GARI-BAKI - COMMISSIONER OF POLICE
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2021: 2^nd December
2022: 15^th March & 15^th July

LIABILITY – Tort – Negligence – Personal injuries – Motor vehicle accident – Duty of care – Duty of care of driver – Breach of duty of care – Identification of driver as tortfeasor – Driver as member of police – Injury sustained from police in hot pursuit of suspect – Tort committed in course of employment – Vicarious liability of employer – Proof of

DAMAGES – General damages for pain and suffering – Chest injuries – Special damages for medical and associated costs – Loss of earnings – Proof of

Cases Cited:
Papua New Guinean Cases

William Mel v. Coleman Pakalia & Others (2005) SC790

Wak v. Kulunga (2018) N7141

Kanit trading as City Link v. National Airports Corporation Ltd (2021) SC2084
Kelly v. Yakasa (2020) N8425
Peter Amini v. The State [1987] PNGLR 465
Wakalu v. Police (2017) N6600
Tuman v. Motor vehicles Insurance Limited (2017) N6923

Overseas Cases

Donoghue v. Stevenson [1932] AC 562

Counsel:
Ms. E. Waeda, for Plaintiff
No appearance, for First Defendant
Ms. C. Kuson, for Second and Third Defendants

JUDGMENT

15^th July, 2022

1. MAKAIL, J: This is a trial on liability and assessment of damages. At the pretrial conference and listings, counsel for the parties agreed to proceed to trial by affidavit with no cross-examination of witnesses and filing of written submissions with decision to follow suit. Parties have filed written submissions with the defendants given an extended period to do so.
Outline of Allegation

2. According to the statement of claim endorsed to the writ of summons filed 14^th July 2017, the plaintiff alleged that on 26^th November 2015 at about 9 o’clock in the morning, he was walking to his house at Morata No. One New Area Block when he was struck from behind by a motor vehicle driven by the first defendant at high speed in hot pursuit of a suspect travelling in another motor vehicle. He was thrown off the ground and passed out. Because of the impact, he sustained serious bodily injuries and was hospitalised for one month. He has a permanent disability. At the material time, he was working as a security guard at Super Value Mart in Port Moresby.

Evidence

3. He relied on the following affidavits:

(a) His affidavit filed on 28^th January 2020;
(b) Affidavit of Paul Jaheme filed on 7^th January 2020;
(c) Affidavit of Robert Mange filed on 7^th February 2020; and
(d) His affidavit filed on 4^th February 2022.

4. The defendants did not file any affidavits in response.

5. These affidavits have been considered on both issue of liability and assessment of damages.

Liability

6. The plaintiff sued the defendants for the negligence of the first defendant under the principles of vicarious liability where if the first defendant were to be found negligent, the third defendant will be held liable in damages. To hold the third defendant liable, it is necessary for the plaintiff to establish:

(a) A tort of negligence has been committed;
(b) The tort was committed by the first defendant as an employee of the third defendant; and
(c) The tort was committed in the scope or course of the third defendant’s employment.

(See William Mel v. Coleman Pakalia & Others (2005) SC790; Kanit trading as City Link v. National Airports Corporation Ltd (2021) SC2084 and Kelly v. Yakasa (2020) N8425).

Identification of Tortfeasor

7. The first issue is the identification of the tortfeasor. The plaintiff does not depose in his affidavit that he saw the first defendant driving the motor vehicle, but he did depose that he saw a police vehicle described as a Toyota Land Cruiser, Ten-Seater, Light Blue in colour and bearing Registration No: ZPD-237 travelling at high speed in his direction in hot pursuit of a taxi. He saw members of the police in the motor vehicle. He was standing on the side of the road when he was struck by the motor vehicle.

8. The plaintiff’s witness Paul Jaheme deposed in his affidavit that he was standing on the right side of the road and about 5 metres from the plaintiff when he heard a siren go off and saw a sedan sped past followed by the said motor vehicle. He then saw the said motor vehicle struck the plaintiff on his left side and run over him. It then sped off. The other witness Robert Manga in his affidavit recounted that he was playing a game of cards at a nearby tucker shop when he saw the said motor vehicle struck the plaintiff. Like the plaintiff, none of these two witnesses were able to identify the first defendant as the driver of the said motor vehicle.

9. The police accident report dated 16^th May 2016 attached to the affidavit of the plaintiff does not state the name of the driver or the first defendant as the driver of the said motor vehicle. However, it is not necessary for the plaintiff to identify the tortfeasor in order to hold the employer of the tortfeasor liable under the principles of vicarious liability. It is sufficient though to identify the tortfeasor as a member of the police.

10. In his affidavit the plaintiff does identify the driver and passengers in the said motor vehicle as members of the police. The plaintiff’s assertion is consistent with the statement in the letter from the Metro-Traffic Division of Police to the plaintiff’s lawyers dated 21^st January 2020 that “After nearly Six (6) months of investigation, Chief Sergeant George Ongobia was found to be the driver .....”.

11. It is further supported by the second and third defendants’ concession at paragraph 14 of their written submissions filed 21^st March 2022, that they, “take no issue with liability............

(ii) There is evidence provided by the Plaintiff in his affidavit that the First Defendant is the driver of the vehicle, and it is confirmed in a letter by the Police that the driver is a policeman and is deceased”

(iii) The Defendants do not have any evidence to rely on to dispute that evidence”.

12. For the forgoing reasons, it is the finding of the Court that the plaintiff has established that the tortfeasor is a member of the police. He has been identified as the first defendant.

Tort of Negligence

13. According to paragraph 6(e) of the statement of claim, the plaintiff alleged that the first defendant was negligent when he failed to drive at a reasonable speed in a residential area, failed to keep a proper look out for the public, failed to keep the motor vehicle under proper control, drove the said motor vehicle at an excessive speed, failed to sound any warning of the said motor vehicle, failed to apply brakes on the said motor vehicle to stop or avoid striking him and failed to steer or control the said motor vehicle to avoid striking him.

14. The plaintiff’s assertion is that the said motor vehicle was travelling at high speed in pursuit of a taxi. His assertion is corroborated by his two witnesses Mr Jaheme and Mr Manga. Their assertion is further corroborated by the police accident report.

15. A person owes a duty of care to another based on the neighbourhood principle in Donoghue v. Stevenson [1932] AC 562. A driver of a motor vehicle is under a duty of care to control a motor vehicle to avoid injuring passengers and pedestrians when driving. By not controlling the said motor vehicle, by not applying brakes on the said motor vehicle, by not sounding a horn and by putting a siren on very late in the pursuit of the taxi in a residential area, the first defendant allowed the said motor vehicle to run over the plaintiff and injuring him. He breached the duty of care owed to the plaintiff.

15. For the foregoing reasons, it is the finding of the Court that the first defendant was negligent.

Tort committed within the scope or course of employment

16. The plaintiff asserted in his affidavit that the said motor vehicle was travelling at high speed in pursuit of a taxi. His assertion is corroborated by his two witnesses Mr Jaheme and Mr Manga. Their assertion is further corroborated by the police accident report.

17. One of the functions of the police is to apprehend suspect and charge them for committing a crime. As the first defendant and his colleagues were in hot pursuit of the taxi, it is the finding of the Court that the first defendant was acting within the scope or course of employment when he committed the tort of negligence.

Summary

18. In the result, the plaintiff has established liability and judgment on liability is entered against the defendants.

Assessment of Damages

19. According to the prayer for relief in the statement of claim, the plaintiff sought damages. In his written submissions, he sought the following:

(a) General damages for pain and suffering;
(b) Special damages for medical and associated costs;
(c) Interests; and
(d) Costs.

20. In his affidavit the plaintiff deposed that he was hospitalised for a month. He almost died and was placed on life support and underwent surgery. He suffered chest injuries. After being released from hospital, he continued to have pain in his chest. He produced a medical report by Dr. E. Alok of the Port Moresby General Hospital dated 7^th June 2016 to verify his injuries.

General Damages

21. Based on Peter Amini v. The State [1987] PNGLR 465 which the plaintiff submitted resembled the type of injury suffered by him, a sum of K60,000.00 should be awarded. In that case the plaintiff was awarded K18,000.00 but the award should be increased because that award was more than 30 years ago, and costs of living has risen.

22. The second and third defendants submitted the medical report showed that the plaintiff suffered injuries to his upper abdomen and rib section. In Wakalu v. Police (2017) N6600 the plaintiff was awarded K20,000.00 for rib injuries after he was assaulted by members of the police.

23. They further submitted that a more reliable case involving a motor vehicle accident where the plaintiff suffered injuries to the ribs and neck area is Tuman v. Motor vehicles Insurance Limited (2017) N6923. The plaintiff was awarded K10,000.00 for 20% - 30% disability.

24. They proposed a sum of K15,000.00 should be fair and reasonable to award.

25. It is noted that the plaintiff tendered one medical report. It is from 7^th June 2016 and there is no latest medical report of the current state of the injuries. Any award of damages will not truly reflect the current state of the injuries because of lack of latest medical report. Thus, there is no medical evidence to establish that the plaintiff has not fully recovered or rate of efficiency. What may be noted from the medical report, though, is the plaintiff has permanent scars, psychological trauma and chronic left chest pain which has limited his daily activities. The doctor has estimated a 24% loss of efficiency.

26. And so, considering the plaintiff’s injuries, the scars, rate of loss of efficiency, comparable awards in past cases referred to herein and the second and third defendants’ proposal of K15,000.00, a fair and reasonable sum to award to compensate the plaintiff for the pain and suffering is K40,000.00. This sum is awarded.

Special Damages

27. The plaintiff sought K5,000.00 which he asserted was for medical and associated costs. The problem with this assertion is that, as special damages require strict proof, there are no receipts of payments for medical costs and associated costs to support the award of K5,000.00. Nonetheless, given that the plaintiff’s injuries were serious and required him to be hospitalised where he underwent surgery, it will be accepted that the plaintiff incurred some medical and associated costs and will be awarded a nominal sum. K2,000.00 is awarded.

Loss of Earnings

28. In his affidavit the plaintiff asserted that he was employed as a security guard by Super Value Mart at the material time. He earned K490.00 per fortnight. He was 41 years old at the material time. In his submissions, he sought a sum of K178,360.00 based on K450.00 per fortnight for 14 years or until he reached 55 years old if he continued to be employed by Super Value Mart.

29. The second and third defendants objected to this submission and sought to dismiss this head of claim for two reasons. First, this head of claim has not been pleaded in the statement of claim and secondly, the plaintiff failed to produce copy of payslip to verify his assertion that he was paid K450.00 per fortnight.

30. Countering the second and third defendants’ objection, the plaintiff submitted that he has pleaded the claim for loss of earnings at paragraph 6 (c) (vi) and (d)(ii) of the statement of claim. Considering these submissions, it will be noted that although the pleading does not elaborate on the loss of earnings, the plaintiff’s submissions will be upheld because it is clear enough to identify that the plaintiff was employed as a security guard with Super Value Mart and lost his job after the injury and seeks damages for loss of earnings.

31. In terms of evidence, the Operations Manager of Super Value Mart tendered a letter annexed to the plaintiff’s affidavit to verify that the plaintiff was employed by Super Value Mart as a static security guard. The plaintiff also gave the details of how much he earned per fortnight. However, as the plaintiff has not produced a pay slip nor has the employer verified this sum and considering contingencies including early resignation, death or illness before the plaintiff would reach 55 years, a global sum of K40,000.00 would be a fair and reasonable sum to award. This sum is awarded.

Interest Pursuant to Statute

32. The plaintiff sought interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act, 2015. The plaintiff’s submission is upheld. Interest at a rate of 2% is awarded on the total judgment sum of K82,000.00 (K40,000.00, K2,000.00 and K40,000.00) from the date of issue of writ to the date of judgment and until final settlement pursuant to Sections 4 and 6 (supra).

Costs

33. Finally, the plaintiff sought costs of the proceedings. As the successful party, the plaintiff will be awarded costs of the proceedings, to be taxed, if not agreed.

Order
34. The orders of the Court are:

1. Liability is entered against the defendants.
   
2. Judgment is entered in favour of the plaintiff in the total sum of K82,000.00.
   
3. Judgment is entered in favour of the plaintiff for interest at rate of 2% on the total judgment sum of K82,000.00 from date of issue of writ to date of judgment and until final settlement pursuant to Sections 4 and 6 of the Judicial Proceedings (Interest on Debts and Damages) Act, 2015.
   
4. The defendants shall pay the costs of the proceedings, to be taxed, if not agreed.

5. Time shall be abridged.
________________________________________________________________
Public Solicitor: Lawyers for Plaintiff
Solicitor General: Lawyers for Second and Third Defendants