Kapo v Moses [2025] PGNC 501; N11634 (10 December 2025)

N11634

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 480 of 2023

PETER KAPO
Plaintiff

v

ROCKY MOSES
First Defendant

DAVID MOSES
Second Defendant

LAKE DASA FARMERS LIMITED
Third Defendant

WABAG: ELLIS J
9, 10 DECEMBER 2025

PRACTICE AND PROCEDURE – Whether vicarious liability sufficiently pleaded – whether vicarious liability was proved

EVIDENCE – Distinction between legal and evidential burden proof

COSTS – Plaintiff only successful against some defendants – Bullock and Sanderson orders explained – Sanderson order made

Cases cited
Blatch v Archer [1774] Eng R 2; 1 Cowper 63
Bullock v London General Omnibus Co [1906] UKLawRpKQB 151; [1907] 1 KB 264
Guard Dog Security Services v Mathews (2019) SC1861
Kamuri v Pomoso [2012] PGSC 3; SC2071
Kewus v Lus (2007), unreported, 14 March 2017, Manuhu J
Mindili v Kuimo [2021] PGNC 374; N9214
Nare v Independent State of Papua New Guinea (2017) SC1854
Pembaro v Baki (2015) N6224
Sanderson v Blyth Theatre Co [1903] UKLawRpKQB 161; [1903] 2 KB 533

Counsel
J Yapao, for the plaintiff
No appearance for the first defendant
B. Kaki, for the second and third defendants

JUDGMENT

1. ELLIS, J: On 16 August 2023 the plaintiff commenced these proceedings, claiming K122,395 in respect of a motor vehicle accident said to have occurred on 17 September 2022. After five directions hearings, on 3 October 2025 these proceedings were listed for hearing yesterday.
   
2. At that 3 October 2025 directions hearing, it was noted that there was an issue of whether the second defendant and the third defendant have been or should be removed from the proceedings.

Preliminary issue

3. Document number 20 on the Court, titled “Court Order”, was prepared by the lawyers for the second and third defendants. Although that document suggested orders were made on 30 June 2025, it was not filed until 2 October 2025, when it was signed and entered by the Assistant Registrar.
   
4. That document suggested the following orders were made:
   
   1. The Second and Third Defendants are removed as parties to these proceedings.
   2. The matter is stood down to 1.30pm for parties to address the Court on further progress of the matter.
      
5. It was necessary to listen to the recording of what was said on the morning and in the afternoon of 30 June 2025, noting that the Court file records Mr B Kaki as appearing for the second and third defendants on that occasion. The recording of what was said when the matter was considered that afternoon includes the following exchange between Mr Kaki and Kandakasi DCJ:

Mr Kaki ... Your Honour has already written that the second and third defendants have been removed as parties to the proceedings because there is no case against our client.

DCJ Who made that order? I haven’t. We have yet to get to that. We were having conversation so you can work this out with your friend. I did say that if damages are assessed and ordered there is a possibility of the first defendant asking you to share. That is the only context in which I asked you to have some conversation.

Mr Kaki Yes, that’s correct...

6. The orders that were made on 30 June 2025, and entered on 7 July 2025, were prepared by the Court and were signed by Kandakasi DCJ. Those orders are quoted below:
   
   1. This matter is now adjourned for hearing before the resident Judge His Honour Ellis J., on a date convenient to His Honour.
   2. The parties shall attend the first call-over of civil matters for trial before the resident Judge for a date to be allocated.
   3. This matter is now removed from the ADR List.
   4. The time for entry of these orders is abridged to take place forthwith upon the Court signing the Orders.
      
7. At today’s hearing, Mr Kaki initially suggested that orders removing the second and third defendants were made during the morning of 30 June 2025. However, after the recording of what was said during the afternoon of that day was played, he accepted that no such orders were made. In closing submissions, he apologised for submitting those orders, thereby avoiding a referral of the matter to the Law Society.
   
8. The Assistant Registrar gave evidence that he signed those orders and that he saw the orders signed by Kandakasi DCJ on the file before signing those orders. No satisfactory explanation was provided for why orders that conflicted with orders signed by the Deputy Chief Justice that were already entered on the Court’s file.
   
9. The Court finds that the orders lodged on 2 October 2025 should not have been lodged and should not have been either signed or entered by the Assistant Registrar. Since those orders appear on the Court’s file for these proceedings, it is necessary to make an order that the orders, purporting to have been made on 30 June 2025 and which were entered on 2 October 2025, are set aside.
   
10. As a result, the second and third defendants remain as parties to these proceedings.
    

Procedural history

11. After the writ of summons was filed on 16 August 2023, on 9 December 2023 a defence was filed for the defendants. However, on 24 October 2024 that defence was struck out. The first three orders made on that occasion were as set out below:
    

1. The Defendants’ defence is struck out.

2. Judgement is ordered in favour of the Plaintiff with damages to be assessed.
3. This matter is listed for assessment of damages before His Honour Kangwia J on 24^th January 2025 commencing at 9:30 am.
   
12. Obviously, the matter did not proceed on 24 January 2025. The plaintiff filed two affidavits in support of his claim. No evidence has been filed by or for any of the defendants.
    

Evidence

13. The affidavit of the plaintiff was admitted as Exhibit A (CB17, ie from page 17 in the Court Book). It showed that the plaintiff was the owner of a Toyota Landcruiser motor vehicle and was said that, on 27 September 2022, the plaintiff was driving from Wabag to Laiagam. The first defendant was said to be the driver of the second and third defendants. He was said to be driving an Isuzu truck from Laiagam towards Wabag. The plaintiff’s evidence was that the truck being driven by the first defendant, drove onto the incorrect side of the road, causing a collision which resulted in damage to his vehicle, said to have been tipped onto its side.
    
14. Photos (CB22) show the plaintiff’s vehicle resting on its side, adjacent to the Isuzu truck. Copies of clinic book records, a Traffic Accident Report and a sketch plan were also provided. A repair quotation from Eternal Company Ltd for K56,015 was also annexed to the affidavit. That quotation included an item described as “Quotation for body works (attached)” with an amount of K29,000. A copy of the District Court record was also provided to show that, on 3 May 2023, the first defendant was found guilty on driving without due care and attention and was fined K1,000.
    
15. The plaintiff said he had his vehicle towed to K. Bills Welding & Auto Body Repair which was said to be “only for body works and the engine and other parts of the vehicle that have been damaged”. He went on to say that he allowed that work to proceed and has paid K23,000 with K2,000 yet to be paid. It was said that the plaintiff had spent another K15,000 overhauling the engine and photos of the vehicle after the panel beating (ie repairs to the body of the vehicle) had been carried out were provided.
    
16. It was said that the plaintiff had spent K1,500 on medical expenses and K3,500 on “other expenses such as towing of the damaged vehicle to two separate workshops, fuel, food etc.”
    
17. The affidavit of Lasen Kep (CB13) indicated that he was a passenger in the plaintiff’s vehicle at the time of the accident. This affidavit provided support for the plaintiff’s case on liability against the first defendant.
    
18. It is noted that, when an opportunity was provided for the cross-examination of those witnesses, it was indicated by the lawyer for the second and third defendants that he did not wish to cross-examine either of those witnesses.
    
19. No evidence was filed by or for any of the three defendants.
    
20. As a result, the evidence of the plaintiff and his passenger was neither challenged nor contradicted.
    

Submissions for the plaintiff

21. Written submissions for the plaintiff (CB1) were marked for identification as MFI 1. It was noted that liability has already been determined with the contended result that the Court was only required to assess damages. It was disputed that the second and third defendants had been removed from these proceedings.
    
22. A submission was made that the first defendant is the driver of the second and third defendants, that the vehicle was owned by the third defendant and that the second defendant was the managing director of the third defendant company. It was contended that the second and third defendants were vicariously liable because they are the owners of the Isuzu truck. It was said that the defendants had not filed any evidence to show that the first defendant was not a driver of the second and third defendants, or that he had stolen the truck or was driving it without their permission at the time of the accident.
    
23. After referring to the plaintiff’s evidence on quantum, it was contended that the plaintiff should be awarded a total of K45,450 that was calculated as follows:

(1) K25,450 for panel beating,
(2) K15,000 for other repairs,
(3) K1,500 for medical expenses, and
(4) K3,500 for towing.

24. No additional oral submissions were made on behalf of the plaintiff.
    

Submissions for the second and third defendants

25. Written submissions for the defendants were handed up and were also marked for identification (MFI 2). To the extent that those written submissions included evidence, such as an assertion that the first defendant was driving the vehicle without the consent of the second defendant, they must be ignored. It is noted that claim was not made until after it was suggested during a directions hearing by Kandakasi DCJ.
    
26. If it was intended for such matters to be taken into consideration, they should have been included in affidavit evidence that was filed and served prior to the hearing and not in written submissions that were not provided to either the plaintiff’s lawyer or the Court until after the evidence had closed.
    
27. It was also suggested that there had been prior proceedings in the District Court but, in the absence of any evidence, that assertion rises no higher than an unsubstantiated allegation.
    
28. In those written submissions, it was said that reliance was placed on the defence filed on 9 December 2023 but that defence, which was in fact filed on 4 December 2023, was struck out by the Deputy Chief Justice on 24 October 2024.
    
29. After making contentions that the second and third defendants were removed from the proceedings on 30 June 2025, which has been rejected for the reasons indicated above, submissions were made on the question of whether the second and third defendants were vicariously liable for the conduct of the first defendant.
    
30. Reference was made to the decisions in Guard Dog Security Services v Mathews (2019) SC 1861 (Guard Dog), Nare v Independent State of Papua New Guinea (2017) SC 1854 (Nare), Pembaro v Baki (2015) N6224 (Pembaro) and Kewus v Lus (2007), unreported, 14 March 2017, Manuhu J (Kewus).
    
31. No copy of the unreported decision in Kewus was provided to the Court. However, that failure is of no moment since what was said to be a paragraph from that decision was quoted and it did not more than confirm that an employer will be liable if a driver was driving in the course of his employment.
    
32. It was contended that the Court had to be satisfied that the first defendant’s negligence fell within the scope of his employment by the second and third defendants. Reference being made to s 1(1)(a) and s 1(4) of the Wrongs (Miscellaneous Provisions) Act, Ch 297. A submission was made that the first defendant was driving without the consent or permission of the second or third defendants, but that submission was not supported by admissible evidence, only an assertion made belatedly in written submissions.
    
33. A submission was made that “The Plaintiff reaffirmed and confirmed in his pleading at paragraphs 6 and 7 that the First Defendant was overloaded with firewood for his personal use.” However, there was no allegation of personal use in either of those paragraphs: they only that pleaded the vehicle was “loaded with firewood” in paragraph 6 and that the vehicle was “heavily loaded with firewood” in paragraph 7.
    
34. It was also alleged that the plaintiff had not pleaded that the first defendant “collided with his vehicle whilst performing his duty as an employee of the Third Defendant and was authorised by the Second Defendant to drive and perform his duty to serve the interest of the Third Defendant”.
    
35. Reference was made to Kamuri v Pomoso [2012] PGSC3 (Kamuri); SC2071 and Mindili v Kuimo [2021] PGNC 374; N9214 (Mindili) which were said to provide support for the proposition that the plaintiff, in this case, had failed to plead relevant facts to establish vicarious liability.
    
36. Under the heading “What are the Plaintiffs (sic) losses and damages?”, further submissions were made on the liability issue. No submissions were made in relation to the issue of quantum.
    
37. Oral submissions for the second and third defendants withdrew reliance on the suggestion that the Court had removed the second and third defendants from these proceedings on 30 Jun 2025.
    
38. Those oral submissions did not materially add to what was set out in the written submissions for the second and third defendants, other than to assert (1) that there was no clear evidence of the terms of employment of the first defendant, and (2) that the employment of the first defendant by the second and third defendant was never pleaded in the Writ of Summons.
    
39. It should be noted that an opportunity was provided for submissions to be made on the effect of the orders made on 24 October 2024, which suggested the entry of judgement for the plaintiff and that the only remaining issue was the assessment of damages.

Submissions in reply

40. The Court’s attention was directed to paragraphs 9, 11 and 12 in the Writ of Summons. It was noted that there was no evidence from the defendants and that submissions should not be made without supporting evidence.
    
41. It is convenient to here note that no party made any submissions in relation to quantum, which is surprising when the earlier orders suggested that these proceedings would be listed for the assessment of damages.
    

Relevant law

42. Guard Dog was said, by reference to what was said at [19], to provide support for need to show that the employee was acting in the course of his/her employment. However, it must be noted that, at [8] it was said:
    

“It is not necessary for the plaintiff to plead or prove that the tortfeasor committed the breach of duty whilst on duty and acting within the lawful scope of his duties as an employee. It is sufficient to prove that the tortfeasor was acting or purporting to act in the course of his employment.”

43. Nare was a Supreme Court decision and the submissions for the second and third defendants quoted [35]. It is noted that, in a case where the employer was the State, it was said that:

“The onus is on the State to prove that the wrongful acts of the tortfeasors was so far removed from their ‘domain of authorised actions’ as to have no or no purported connection therewith.”

44. Those words reflect the distinction between the legal burden of proof and the evidential burden of proof. The legal burden of proof remains with the plaintiff throughout the proceedings, requiring the plaintiff to prove the case on the balance of probabilities. However, the evidential burden of proof can shift during the hearing: such as when a plaintiff proves some proof which creates an evidential burden on the other part of the defendant/s. An evidential burden can also arise when the issue is one which is within the knowledge of the defendants, such as an issue of whether a driver was acting within the scope of his/her employment.
    
45. As Lord Mansfield said in Blatch v Archer [1774] Eng R 2; 1 Cowper 63 at 65:
    

“It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.”

46. In cases such as this, it is sufficient for a plaintiff to lead some evidence that an employee was acting or appeared to be acting in the course of his/her employment and then, if the employer wishes to contradict that, it is for the employer to lead evidence the employee was acting outside the scope of that employment.
    
47. Pembaro does no more than confirm that an employer will not be liable if an employee “goes on a frolic and detour of his own and causes damages to a third party”. In many cases, such as this case, it will be unrealistic to expect a plaintiff to know if the employee is acting outside the scope of his employment.
    
48. Kamuri was a case in which there was a failure to plead any nexus or link between the conduct of police officers and their employment. However, in this case it was pleaded in the writ of Summons that the first defendant was the driver of the second and the third defendants and that he was driving at the time of the accident.
    
49. Mindili was another case involving the conduct of police officers in which there was a failure to plead conduct in the course of their employment and within the scope of their employment. Here, the pleadings and evidence both refer to an employed driver who was driving. It is a reasonable inference, when an employed driver is driving, that he/she is driving in the course of his/her employment.
    

Consideration - liability of the first defendant

50. There is clear evidence that the first defendant was driving a motor vehicle on the wrong side of the road when it collided with the plaintiff’s vehicle. There is no evidence from the first defendant to the contrary. The liability of the first defendant has clearly been proved.
    

Consideration – liability of the second defendant and third defendant

51. In the Statement of Claim within the Writ of Summons, the plaintiff alleged that the second defendant was the owner of the third defendant (in paragraph 3), the first defendant was a relative of the second defendant (in paragraph 9), that the second defendant was the owner of the company which owned the vehicle drive by the first defendant (paragraph 11), that the second defendant, as owner of the third defendant company which owns that vehicle was negligent because of the negligence of the first defendant as “his ... driver” (paragraph 11), that there was a failure in the part of the owner of the vehicle to not impose discipline or supervision of drivers such as the first defendant (paragraph 11), and that the plaintiff’s damages were caused by the conduct of the “employed driver” (paragraph 12).
    
52. Moving from what was pleaded to what was the evidence, the affidavit of the plaintiff said, in paragraph [4] that the first defendant was the driver of the second and third defendants. That evidence was neither contradicted nor challenged. No reason advance as to why that evidence should not be accepted and the Court is unable to discern any such reason.
    
53. However, it is clear from the pleadings that the basis upon which the second defendant was included in these proceedings was that he is the owner of the third defendant company. There are three reasons why the plaintiff’s claim against the second defendant must fail. First, the fact that the second defendant may own the third defendant company is not a sufficient basis to render him liable. Secondly, there is no evidence that the second defendant is the owner of the third defendant company. Thirdly, it is difficult to see how the first defendant can have two employers at the same time.
    
54. There is evidence that the vehicle being driven by the first defendant was owned by the third defendant, namely the police accident report.
    
55. The pleadings and evidence are considered sufficient to warrant a finding of vicarious liability on the part of the third defendant as it was pleaded and proved that (1) the first defendant was driving the vehicle that caused the damage to the plaintiff’s vehicle, (2) the third defendant owned the vehicle that was being driven by the first defendant, (3) the first defendant was employed by the third defendant as a driver, (4) it is a reasonable inference that a person who is employed as a driver and who is driving a vehicle owned by his employer is driving in the course of his employment.
    
56. It is noted that it was open to the third defendant to rebut the plaintiff’s evidence by establishing that the first defendant was acting outside the scope of his employment, thereby satisfying the evidential burden of proof, but failed to do so.
    
57. Accordingly, the Court considers liability has been proved against the third defendant, but not against the second defendant.
    
58. The Court has not overlooked that an order was made on 24 October 2024 which said: “Judgement is ordered in favour of the Plaintiff with damages to be assessed.” However, that order did not specify against which defendants that judgement was ordered. Given the significance of a determination of judgement in favour of a party, it is considered preferable to treat that order as leaving open the question of against which defendants that order applied.
    

Consideration – damages

59. The components of the amount claimed by the plaintiff are:
    

(1) K25,450 for repairs to the external body of his vehicle,

(2) K15,000 for repairs to engine and interior of that vehicle,

(3) $3,500 for “towing ..., fuel, food, etc”, and

(4) $1,500 for "medical expenses”.

60. The plaintiff obtained a quotation for K56,015 which, it is noted, included K29,000 for “body works”, leaving a balance of K27,015 for the interior and engine. However, the evidence is that the plaintiff considered that amount of K56,015 to be excessive. As a result, he had what was termed the body works, undertaken at a cost of K25,450, being less than the amount of K29,000 set out in the original quotation. There was a supporting invoice for that amount of K25,450. That amount should clearly be allowed.
    
61. It is noted that the plaintiff was able to have done for K25,450, what would have cost K29,000 if he had accepted the original quotation. Hence, the incurred cost was just under 88% of the quoted cost for “body works”. If the same ratio is applied to the remaining part of the original quotation, namely K27,015, the amount obtained is K23,773. That favours the view that the claim for K15,000 is reasonable.
    
62. While it could be contended that the plaintiff did not provide supporting documents for that K15,000, if the Court was to go by the documents that were provided, then an amount of K27,015 could have been awarded for repairs to the engine and interior of the vehicle. However, as the plaintiff has, against his interest, claimed the lesser amount of K15,000, the Court considers it reasonable to allow that amount.
    
63. While it does appear, from the fact that the accident resulted in the plaintiff’s vehicle being tipped onto its side, there is no supporting evidence for the claim for “towing of the damaged vehicle to the two separate workshops, fuel, food, etc” and the Court cannot just pluck a figure out of the air.
    
64. Likewise, there is no documentary support for the claim for K1,500 for medical expenses.
    
65. Accordingly, the plaintiff is considered entitled to recover K40,450, being K25,450 plus K15,000, from the first and third defendants. For the avoidance of doubt, the plaintiff will be entitled to recover K40,450 either (1) wholly from the first defendant, or (2) wholly from the third defendant, or (3) partly from each of them up to a total amount of K40,450.
    

Costs

66. The usual approach in relation to the costs in civil proceedings is that costs follow the event, ie the outcome of the proceedings. There does not appear to be any reason why that approach should not be taken in this case. Hence, the plaintiff is clearly entitled to an order that the first defendant and the third defendant pay his costs.
    
67. Since the second and third defendants were represented by the same lawyer, it is difficult to see how there could be any separate costs for the second defendant. However, from an abundance of caution, the court considers the position in relation to costs when a plaintiff sues more than one defendant and is not successful against each defendant.
    
68. More than a century ago, in Bullock v London General Omnibus Co [1906] UKLawRpKQB 151; [1907] 1 KB 264 and Sanderson v Blyth Theatre Co [1903] UKLawRpKQB 161; [1903] 2 KB 533, orders were made in cases where the plaintiff sued more than one defendant but was not successful against each of them. The orders for costs made in those cases have come to be known as a Bullock order and a Sanderson order respectively. They seek to achieve the same outcome in different ways.
    
69. A Bullock order requires the plaintiff to pay the costs of the successful defendant(s) but permits those costs to be recovered against the unsuccessful defendant(s); a Sanderson order is more direct as it requires the unsuccessful defendant(s) to pay the costs of both the plaintiff and the successful defendant(s).
    
70. In this case, the clearest way to resolve the question of costs is to make a Sanderson order so that the first and third defendants are orders to pay the costs of the plaintiff and any costs of the second defendant.
    

Orders

71. For the reasons set out above, the orders of the Court will be as follows:
    1. Document number 20, entered on the Court’s file for this matter on 2 October 2025 and purporting to contain orders made by the Deputy Chief Justice on 30 June 2025, is set aside as no such orders were made.
    2. Verdict for the plaintiff against the first defendant and the third defendant.

3 Verdict for the second defendant against the plaintiff.
4 Judgement for the plaintiff in the amount of K40,450.

5. The first and third defendants are to pay the costs of the plaintiff and any costs of the second defendant, as taxed if not agreed.

6 Time is abridged so that these orders may be entered forthwith.

Orders Accordingly.
__________________________________________________________________
Lawyers for the plaintiff: Mackenzie Lawyers
Lawyers for the second and third defendants: Eagle Lawyers