N11278

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 49 OF 2023

BETWEEN
GUARD DOG SECURITY SERVICES LIMITED
Plaintiff

AND
SERAH JASON
Defendant

LAE:  COLLIER J
9 MAY 2025
  
PRACTICE AND PROCEDURE – pleading – whether cause of action pleaded – compliance with Order 8 Rules 29 and 33 National Court Rules

Vehicles of the plaintiff and defendant collided resulting in damage to both. The defendant was subsequently convicted in the District Court of reckless driving. The plaintiff commenced proceedings in National Court seeking damages and interest. The defendant brought a cross-claim against plaintiff seeking damages and interest. In its Statement of Claim the plaintiff sought damages and interest referable to the reckless driving conviction of the defendant. On the day of the hearing there was no appearance by the defendant.

Held: 

Both the Writ of Summons of the plaintiff and the Amended Cross-claim of the defendant should be dismissed. The Writ of Summons and Statement of Claim disclosed no cause of action against the defendant in respect of which the plaintiff could be entitled to damages. A reckless driving conviction of the defendant in the District Court did not found a cause of action in civil proceedings. Although it appeared that the plaintiff was of the view that the defendant was negligent, no such claim was pleaded. The Statement of Claim did not comply with Order 8 Rules 29 and 33 of the National Court Rules. Further, the Statement of Claim read as a whole did not disclose a cause of action which could be the foundation of an award of damages and interest. In respect of the defendant’s Amended Cross-Claim there was no appearance of the defendant at the hearing and no explanation was provided. The defendant had not appeared at Court in respect of the proceedings since her lawyers had ceased to act. The Amended Cross-Claim was dismissed for want of prosecution by the defendant.

Cases cited
Tom (trading as Yanku Farmers Inc) v Fresh Produce Development Agency Ltd [2024] SC2676
Sahale v Karogo [2021] SC2129
Jimmy v Rookes [2012] N4705

Counsel
Ms M Marubau, for the plaintiff
No appearance, for the defendant 

REASONS FOR JUDGMENT

1	COLLIER J: Before the Court are two related claims.

2	First, the plaintiff filed a Writ of Summons and Statement of Claim on 20 February 2023, wherein it claimed damages for repair costs (in the amount of K14,645.48) and loss of business (in the amount of K96,096.00), plus interest, identified as referable to a collision between vehicles driven by an employee of the plaintiff and the defendant. 

3	Second, the defendant filed a Further Amended Defence and Amended Cross-Claim on 9 July 2024, wherein she claimed that an employee of the plaintiff driving a vehicle caused the collision as a direct result of the employee’s negligence, and that the plaintiff was therefore vicariously liable for damage to the defendant and her vehicle. The defendant sought the following relief:

(1)	Proceedings WS No. 49 of 2023 be dismissed in its entirety;
(2)	General damages for loss of earnings;
(3)	General damages for pain and suffering;
(4)	Interest pursuant to statute; and
(5)	Costs.

4	Before turning to the claims before the Court it is useful to summarise background facts.

background

5	On 26 July 2022, there was a vehicular collision between a bus owned by the plaintiff and a car driven by the defendant in Five Mile at Lae, along the Okuk Highway. The particulars of the collision are disputed, however the defendant was convicted of reckless driving in the District Court at Lae on 22 August 2022 in proceedings CB No. 2423 of 2022.

6	The plaintiff is represented by its in-house lawyer, Ms Manoel Maburau. The defendant was represented by Berem Lawyers, however, a notice of ceasing to act was filed on 13 August 2024. At the time of the hearing the defendant was unrepresented.

PLEADINGS 
Writ of Summons and Statement of Claim of the Plaintiff

7	The claims of the plaintiff as pleaded in its Statement of Claim filed on 20 February 2023 are as follows:

1.	The Plaintiff is a Security Service provider with its Head Office operating at 11 Mile, Lae, Morobe Province.
2.	The Plaintiff is a duly incorporated company pursuant to the Companies Act and thus has legal personity [sic] and is able to sue and be sued in its own name and style.
3.	The Defendant is an adult female citizen and thus can sue and be sued in her own name.
4.	Due to the Plaintiff’s nature of business, the Plaintiff owns and operates several vehicles, one of which is a Toyota Coaster 25 Seater Bus Registration No LBS-755 driven by its employee, Chris Akurum.
5.	The Defendant owns a Toyota Landcruiser 10 Seater Vehicle Registration No LBJ-850.
6.	On 26th July 2022 at about 7.30am the Defendant was at Five Mile. She was parked and in the vehicle and due to some commotion she quickly drove out swerving into the inside land and hitting the rear of the Plaintiff’s bus and ripping parts off the Plaintiff’s bus thus damaging it.
7.	The Defendant was arrested and charged for reckless driving. She appeared before the District Court and was convicted of the charged [sic] on 22nd August 2022.
8.	The Plaintiff during the Court Hearing provided a quotation for K14,645.48 to the Defendant for the repair of the damage caused to the Plaintiff’s bus.
9.	The Defendant agreed to pay for the repairs to the Plaintiff’s damaged bus. Thus the District Court ordered the Defendant to pay K1,000.00 until full settlement of the repair.
10.	However since the day of the Ruling the Defendant has failed to satisfy the Order.
11.	As a result of the Accident the Plaintiff’s bus was taken off its roster an spent twenty (20) days in the workshop for repairs. The bus is contracted to do work for Goodman Fielders International.
12.	The bus was not utilized and thus the Plaintiff suffered a loss of business of K96,096.00 for those days it was off the road.
13.	The Plaintiff therefore claims:-
(a)	K14,645.48 for repair costs; and
(b)	Loss of Business of K96,096.00; and
(c)	Interest of 8% pursuant to the to the [sic] Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52 from the date of filing of Writ to settlement of the Order.

Further Amended Defence and Amended Cross-Claim of the Defendant

8	Relevantly, in her Further Amended Defence and Amended Cross-Claim filed on 9 July 2024, the defendant pleaded as follows:
…
5.	The Defendant totally denies paragraph six (6) of the Statement of Claim and says the accident occurred due to total negligence of the Plaintiff’s driver, namely Chris Akurum, who drove his vehicle at a dangerously very high speed into the vehicle driven by the Defendant…
6.	The Defendant also denies crossing over to the Plaintiff’s driver’s land and says in fact it was the Plaintiff’s driver who crossed over to her land at very high speed thereby causing the accident.
7.	Paragraph 7 of the Statement of Claim is admitted. However, the police failed to conduct a thorough and proper investigation into the accident which would have revealed that the Plaintiff’s driver was negligent and caused the accident and not the Defendant.
8.	Except to admit paragraph 8 of the Statement of Claim, the Plaintiff says that the District Court did not have the jurisdiction to order the Defendant to settle the Plaintiff’s losses and damages based on the quotation that was provided.
…
AMENDED COUNTER-CLAIM
…
3.	The Cross-Defendant is a company registered under the Companies Act 1997 and has the legal capacity to sue and be sued, hence it is sued accordingy. It is the employer of the its driver, namely Chris Akurum, and is vicariously liable for the negligent actions and omissions of Chris Akurum that were committed or occurred within the course of employment.
…
10.	Upon impact due to excessive speed the vehicle driven by the Cross-Claimant has been badly damaged. The accident was caused as a direct result of the negligence of the driver of the Cross-Defendant, namely Chris Akurum.
PARTICULARS OF NEGLIGENCE OF CHRIS AKURUM – O 8 r 33(1)(h)
a)	Failed without reasonable cause to exercise extra care and attention when driving his vehicle, especially when it was busy early hours.
b)	Drove his vehicle at a dangerously high speed considering the fact that the quality of visibility was reduced due to morning hours at the materials time.
c)	Failed miserably to give due consideration to other traffic and road users on the road.
d)	Failed to maintain proper vision and judgment when approaching the vehicle driven by the Cross-Claimant who had its double blinkers switched on to signal an emergency or precaution.
e)	Failed to take all necessary steps or measures required of a prudent drier in the circumstances so as to avoid colliding with the Cross-Claimant’s vehicle.
11.	As a direct result of the accident, the vehicle driven by the Cross-Claimant has suffered extensive body damages.
…
CONSIDERATION

9	In my view, there are two threshold issues in this case which must result in the dismissal of both the plaintiff’s Writ of Summons, and the defendant’s Amended Cross-Claim. These issues are:
•	the plaintiff has simply not pleaded a cause of action which can properly be answered by the defendant or ruled on by the Court; and
•	the failure of the defendant to appear at the hearing to prosecute her cross-claim, without any explanation to the Court as to her failure to appear.

Plaintiff’s failure to plead a cause of action

10	At the hearing of this matter on 6 May 2025, the plaintiff was represented by Counsel. One of the first questions I asked Counsel was to identify the cause of action pleaded in the plaintiff’s Statement of Claim. Counsel identified paragraph 6 of the Statement of Claim, which provides:

6.	On 26th July 2022 at about 7:30am, the Defendant was at Five Mile. She was parked and in the vehicle and due to some commotion she quickly drove out swerving into the inside lane and hitting the rear of the Plaintiff’s bus and ripping parts off the Plaintiff’s bus thus damaging it.
11	This paragraph does not plead a cause of action, in negligence or otherwise. Further, nowhere in the Statement of Claim does the plaintiff plead a cause of action, in negligence or otherwise, which could support an award of damages or other relief.

12	It is my understanding from hearing submissions of Counsel at the hearing that the plaintiff is of the view that the relevant collision was caused solely by the driving of the defendant. Counsel submitted that this is because the defendant was convicted of reckless driving in the District Court.

13	I make the following observations in respect of this submission.

14	First, to the extent that it can be inferred that the plaintiff claims negligence on the part of the defendant in her driving, and in respect of which the defendant is liable to the plaintiff for damages, the National Court Rules 1983 make provision in Order 8 Rules 29 and 32 for the manner in which such a claim is to be pleaded. These Rules provide:

29. General 
(1) 	A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.
(2) 	Rules 30 to 34 do not affect the generality of sub-rule (1).
…
32. Negligence: breach of statutory duty (16/4)
(1)	In proceedings on a claim for damages in tort, a party pleading negligence (whether contributory or otherwise) or breach of statutory duty shall give particulars of the matter pleaded.
(2)	The particulars required by sub-rule (1) shall be a statement of the facts, but not of the evidence by which the facts are to be proved, on which the party relies as constituting the negligent act or omission or the breach of statutory duty alleged in the pleading.
(3)	If the party relies on more than one negligent act or omission or breach of statutory duty, the particulars required by sub-rule (1) shall, so far as practicable, state separately each negligent act or omission or breach of statutory duty on which he relies.
15	The Statement of Claim of the plaintiff plainly does not comply with these Rules.

16	Second, while I consider it likely that the plaintiff relies on the tort of negligence in its claim for damages against the defendant, I am unable to categorically conclude that that is the case. The elements of the tort of negligence are well known, and were recently restated by the Supreme Court in Tom (trading as Yanku Farmers Inc) v Fresh Produce Development Agency Ltd [2024] SC2676 as follows:

41.	… The elements to establish a cause of action in negligence are that the respondent owed the first appellant a duty of care, that it then breached that duty causing damage to the respondent and the type of damage was not too remote (Donoghue v Stevenson 1932 AC 562; Anita Baikisa & Andrew Kuri Baikisa v J & Z Trading Limited [2016] N6181; Kani).
17	In the case before me, the plaintiff has pleaded its case only by reference to the conviction of the defendant in the District Court for reckless driving. This conviction does not, of itself, give rise to a cause of action in favour of the plaintiff against the defendant. The fact that the defendant was convicted of reckless driving—presumably in relation to the relevant collision—is not irrelevant. Indeed, as Cannings J observed in Jimmy v Rookes [2012] N4705:

8.	The certificate of conviction is proof that the defendant committed an offence. He does not dispute that he was convicted but argues that he should not have been convicted and that the fact of his conviction does not relieve the plaintiff of the obligation to prove that he drove negligently.
9.	On the last point the defendant is correct. Proof of a defendant's conviction of a traffic offence in earlier criminal proceedings does not relieve a plaintiff in subsequent civil proceedings of the onus of proving that the defendant drove negligently. Proof of conviction is one thing. Proof of the elements of a cause of action in subsequent civil proceedings relating to the same events that led to the conviction is another. This raises the question of the weight to be attached to evidence of the conviction.
10.	The common law position, represented by Hollington v Hewthorn [1943] 1 KB 587, was that evidence of a criminal  conviction is not admissible in subsequent civil proceedings to prove any facts on which the conviction was based. So evidence of a prior conviction carried no weight at all, as it was not even admissible. That strict position is not applicable in PNG, as noted by Bredmeyer J in Aundik Kupil v The State [1983] PNGLR 350, because Section 47 of the Evidence Act abolishes a large part of the rule in Hollington v Hewthorn. However, Section 47 still does not relieve a plaintiff in subsequent proceedings of the onus of proving the case. Caution must be exercised in dealing with prior convictions, as shown by the decisions of the Supreme Court (Woods J, Hinchliffe J, Brown J) in John Kaina v The State [1990] PNGLR 292 and the National Court (Lay J) in WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003 and Wamena Trading Limited v Civil Aviation Authority (2006) N3058.
11.	In my view the weight to be attached to evidence of conviction of a driver for a traffic offence in subsequent civil proceedings that relate to the same facts as those considered by the court which convicted the driver, is this: a natural inference arises that the driver was negligent (Anis v Taksey (2011) N4468, Omonon v Kuanga (2012) N4686). An evidentiary burden is then cast upon the defendant to adduce evidence to rebut that inference. This approach has been propounded in a number of British decisions which expressed disapproval of the rule in Hollington v Hewthorn, eg Goody v Oldham's Press Ltd [1967] 1 QB 333, Barclays Bank v Cole [1967] 2 WLR 166, Stupple v Royal Insurance Co Ltd [1971] 1 QB 50, McIlkenny v Chief Constable [1980] 2 All ER 227. The legal burden of proving the case does not shift from the plaintiff but common sense dictates that the defendant needs to bring evidence to throw doubt on the correctness of the conviction.
(emphasis added)
18	It follows that, if the plaintiff had pleaded a cause of action against the defendant in, for example, negligence, and pleaded particulars of the matter pleaded, the fact of the conviction of the defendant could have been relevant evidence supporting the plaintiff’s claim. However, as I have just explained, the plaintiff did not do so. As Cannings J explained in Jimmy v Rookes, the fact of the defendant’s conviction does not relieve the plaintiff of the obligation to prove that she drove negligently giving rise to civil liability to the plaintiff.

19	Third, in forming the view that the plaintiff has simply not pleaded a case against the defendant supporting a claim for damages I note that there is ample authority in both the Supreme and National Courts of Papua New Guinea that a plaintiff must plead the cause of action on which it relies against a defendant. The Courts will permit some latitude if the statement of claim clearly discloses a cause of action. As the Supreme Court explained in Sahale v Karogo [2021] SC2129:

17.	It is well established that unless there is foundation in a plaintiff’s pleadings no evidence, and no damage or relief of matters not pleaded can be allowed. The purpose of pleadings is to: furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; define the issues for decision in the litigation and, thereby, enable the relevance and admissibility of evidence to be determined at the trial; and give a defendant an understanding of a plaintiff's claim in order to be able to respond: Papua New Guinea Banking Corporation v Tole (2002) SC694.
18.	It is also clear, however, that undue rigidity in the application of procedural requirements should not be allowed to compromise the substantive goal of the  Court, which is “to do justice between parties according to law”: Yakasa v Piso (2014) SC1330 (Lenalia, Murray and Logan JJ) at [61] adopting and applying Bomanite Pty Ltd v Slatex Corp Australia Pty Ltd [1991] FCA 536; (1991) 32 FCR 379 per French J (as he then was) at 391.
19.	What is essential is that the statement of claim read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that it has to meet”: Kuman v Digicel (PNG) Ltd (2013) SC1232 at [14].
20.	As the  Court  explained in Yakasa v Piso (supra) at [66] (emphasis ours):
“The rules of  court  with respect to pleadings are directed to the end of achieving procedural fairness but, where it can be seen that, in the circumstances of a particular case, procedural fairness has been achieved, albeit without strict compliance with the rules of  court , it would be to elevate form over substance to set aside the resultant relief. The true position is as stated by Mason CJ and Gaudron J in Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287 (emphasis ours; citations omitted):
“The function of pleadings is to state with sufficient clarity the case that must be met... In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.
Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference.””
21.	Where evidence is led without objection, a  Court  is entitled to make findings on the basis of such evidence provided it is within the general ambit of the plaintiff’s claim: MVIT v John Etape [1994] PNGLR 596 applying Motor Vehicles Insurance (PNG) Trust v Pupane (1993) SC452.
22.	As summarised by Kandakasi DCJ in Covec (PNG) Ltd v Kama (2020) SC1912:
“In short, these authorities make it clear that unless there is foundation in a plaintiff’s pleadings, no evidence and damages or reliefs of matters not pleaded can be allowed. If, however, at the trial of a matter by the conduct of the parties, they have allowed evidence to be led and not objected to or no issue is taken on matters not pleaded being allowed in, can empower a trial  court  to grant such reliefs as the justice of the case warrants. For the strictures of pleadings and the rules governing them are only “are a handmaiden of justice, not its master” to use the words of the  Court  in Maniosa Yakasa v. David Piso (supra).”
20	In the present case, I am not satisfied that the Statement of Claim of the plaintiff read as a whole discloses a cause of action in sufficiently clear terms to put the defendant on notice as to the claim that she was required to meet. As I have already noted, the Statement of Claim—prepared by the legal representatives of the plaintiff—pleaded liability of the defendant to the plaintiff referable to her reckless driving conviction. Unlike the defendant’s cross-claim, the plaintiff in its Statement of Claim did not refer to such concepts as “negligence” or “fault” as the foundation for the plaintiff’s claim against the defendant. A criminal conviction of the defendant does not, of itself, give rise to a civil cause of action.

21	It is not in dispute that the strictures of pleadings and the Rules of Court are the handmaiden of justice, not its master. However, it is also vital to the interests of justice that a defendant be put on clear notice of the nature of the case he or she is required to meet. The Statement of Claim of the plaintiff required both the defendant, and the Court, to endeavour to make sense of it by reference to principles of law and liability. Such an exercise is inevitably fraught with risk. The deficiency of pleading in the Statement of Claim to that extent is unacceptable to the proper administration of justice.

22	For these reasons, I consider that the Writ of Summons and the Statement of Claim of the plaintiff should be dismissed.
Failure of the defendant to appear

23	When the matter was called on 6 May 2025 there was no appearance by the defendant. No explanation was provided to the Court by the defendant for her want of appearance. The matter was called outside Court but there was no response by the defendant.

24	The defendant was represented by lawyers until they filed a notice of ceasing to act on 13 August 2024. No further material, including submissions, was filed by the defendant after this date. It appears from the Court file that the last appearance by the defendant was by her former lawyers at a mention on 2 September 2024 before Dowa J.

25	Counsel for the plaintiff was unable to provide any further information referable to the defendant’s absence from Court on 6 May 2025.

26	In my view, it is proper to infer that following the cessation of acting by her lawyers, the defendant has chosen to absent herself from hearings in this proceeding. This includes her abandonment of her Amended Cross-Claim.

27	In the circumstances it is appropriate that the Amended Cross-Claim of the defendant be dismissed for want of prosecution.
CONCLUSION

28	As a general proposition, costs follow the event. In the present circumstances, both the plaintiff’s Writ of Summons and the defendant’s Amended Cross-Claim have been dismissed. Neither party has been successful against the other.

29	In my view, each party should bear their own costs of and incidental to the proceedings.

30.     The Court orders that:

1.	The Writ of Summons filed by the plaintiff on 20 February 2023 be dismissed.
2.	The Amended Cross-Claim filed by the defendant on 9 July 2024 be dismissed.
3.	The parties bear their own costs of and incidental to the proceedings.
________________________________________________________________
Lawyers for the plaintiff: Ms Maburau