JY Trading Ltd v Mim Holdings Ltd [2021] PGSC 4; SC2075 (16 February 2021)

SC2075

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 14 OF 2019

BETWEEN:
JY TRADING LIMITED
Appellant

AND:
MIM HOLDINGS LIMITED
First Respondent

AND:
PETER PEPENDO by his customary representatives & trustees
ERIC HAIARA & KURUBU IPARA
Second Respondent

Waigani: Kirriwom J, Kariko J & Anis J
2020: 28^th October
2021: 16^th February

APPEAL – Claim for damages for negligence – Fire – Destruction of shop – Loss of business – Cause of fire unknown – Res ipso loquitur – No evidence of negligence – No errors – Appeal dismissed

Cases Cited:

Anita Baikisa v J&Z Trading Ltd (2016) N6181
David Sengi v RD Tuna Canners Ltd (2017) N6646
Eddie Donatus v RD Tuna Canners Ltd (2017) N6647
John Mombi v RD Tuna Canners Ltd (2017) N6645
Marshall Lagoon Investment Company Pty Ltd v Ding Company Limited (2008) N3650
Michael Birus v RD Tuna Canners Ltd (2017) N6648
Timson Noki v Frazer & Barclay Bros [1991] PNGLR 260
Steven Bill v RD Tuna Canners Ltd (2017) N6649
Steven Kaipo v RD Tuna Canners Ltd (2017) N6650

Counsel:

Mr P H Pato, for the Appellant
Ms L David, for First Respondent
Mr A Ayako, for the Second Respondent

JUDGMENT

16^th February, 2021

1. KIRRIWOM J & KARIKO J: This is an appeal by JY Trading Limited (JYT) from the judgment of Harshorn J delivered 28 January 2019 in which his Honour dismissed the Appellant’s proceeding WS No 40 of 2016 which sought damages for loss incurred as a result of fire to its business.

BRIEF BACKGROUND

2. The Appellant executed a commercial lease with Peter Pependo (Pependo) in 2014 to operate a grocery store in one of two adjoining shop buildings owned by Pependo at Erima N.C.D. The First Respondent MIM Holdings Limited (MIM) leased the other shop whose operations included a kai bar or a fast-food outlet that used a kitchen.

3. On 8^th May 2015, a fire that started in the MIM shop quickly spread and burnt down much of the leased premises, including JYT’s trading stock and plant and equipment. The Appellant suffered substantial financial loss as a result.

4. In the National Court proceeding WS No 40 of 2016, the Appellant sued both Respondents for negligence and sought damages totalling K3.335 million.

5. The trial judge firstly found that the fire was an accident, the cause of which could not be attributed specifically to any person to establish negligence. Secondly, His Honour decided that the doctrine of res ipso loquitur (thing speaks for itself) alleged against MIM in the claim, did not apply. The trial judge concluded there was insufficient evidence to find on the balance of probabilities against both Respondents.

GROUNDS OF APPEAL

6. The appellant relies on these grounds of appeal:

1. The trial judge erred in mixed fact and law in applying the doctrine of res ipso loquitur to the given circumstances of this case when:

(a) There was evidence that the first Respondent used its shop as a fast food outlet which is where the fire started;

(b) There was evidence from the Fire Fighter’s Report that the fire started as result of human intervention;

(c) There was evidence that the fire started in a room occupied by the First Respondent’s shop manager and security guard provided by the Second Respondent;

(d) There was evidence that the fire started in the First Respondent’s shop in a room immediately under its control, management and supervision.

2. His Honour erred in law in holding that the doctrine of res ipso loquitur did not apply in the absence of evidence supporting three elements of the principle when it was clear that there was absence of explanation of how the fire started that caused the damage which necessitated application of this doctrine.
   
3. His Honour erred in mixed fact and law in holding that fires can start in many ways without there being a negligent act because fire is an occurrence that could not occur without negligence especially in the absence of defence of natural disaster such as lightning strike which does not require negligent act.
   
4. His Honour erred in law in misapplying the principle of res ipso loquitur when the circumstances of the case met the three elements of the doctrine;
   
5. His Honour erred in mixed fact and law in failing to hold the Second Respondents were negligent for-

(a) Failing to ensure safety measures were in place to protect the tenants including the appellant;

(b) Failing to ensure safety of the two (2) shops from dangers such as fire.

ISSUES

7. The grounds give rise to only two issues to be determined on this appeal:

(i) Was there any clear evidence of what caused the fire and how it was started?

(ii) Could either of the Respondent have stopped or prevented the fire from igniting, spreading and destroying the Appellant’s business?

SUBMISSIONS

8. The Appellant maintained that the trial judge was wrong in finding that the evidence failed to establish the three elements of the maxim res ipso loquitur in circumstances where the occurrence of the fire spoke for itself.

9. JYT contended that given:

(1) there was clear evidence that MIM operated a kai bar business every day of the week which involved the use of fire;

(2) the fire started in the room occupied by MIM’s store manager and a security guard provided by Pependo;

(3) that room was within the management and control of MIM;

(4) the fire was the result of ‘human intervention’ according to the report from the Fire Service;

(5) the start of unexplained fires can only be caused by someone’s negligence; and

(6) neither Respondent pleaded in defence that lightning strike or gas or electrical fault could have caused the fire,

it is conceivable that the fire must have been caused by MIM’s negligence, and this was a clear case to hold the First Respondent liable by applying the doctrine of res ipso loquitur.

10. It was also argued for the Appellant that his Honour erred in not finding the Second Respondent negligent for not providing a fail-safe environment with protective measures in place to guard the shops in the event of fire.

11. In submissions, Mr Pato for the Appellant also suggested that MIM failed its duty of care to the Appellant by not taking action that would have prevented the fire spreading to the Appellant’s shop, and minimizing the loss that resulted. This submission was not based on any ground of appeal so it is disregarded.

12. MIM countered that JYT failed to provide facts that conclusively established the cause and source of the fire, to infer that MIM was negligent. While the Appellant relied on an earlier report of the Fire Service that suggested “human intervention” as the probable source of ignition of the fire, MIM pointed out that an updated report after review disclosed that the fire was classified as “accidental”, and that any physical evidence that would have assisted in determining its cause or origin was completely destroyed by the fire. It also argued that unexplained fires are not necessarily the result of someone’s negligence as there can be other possible causes such as lightning strike or gas and electrical fault. In conclusion, it was argued that as the cause of fire in the present case cannot be attributed to any direct or indirect act or omission of MIM, the first respondent cannot be held liable for the fire by application of the doctrine of res ipso loquitur, and the trial judge made no error in his determination of this point.

13. Pependo echoed the same arguments as those by MIM, adding that there was no evidence showing negligence on its part that contributed to the fire and the resultant loss by the Appellant. It was submitted that the trial Judge therefore did not err in not finding the Second Respondent liable.

CONSIDERATION

14. Where liability is inferred against the defendant by law due to the operation of the maxim res ipso loquitur, there has to be clear evidence that the occurrence was the result of negligence as it could not have happened without any external or physical cause. The law on res ipso loquitur is well established and it was correctly cited and relied upon by the trial judge, as he had done in an earlier case Marshall Lagoon Investment Company Pty Ltd v Ding Company Limited (2008) N3650. We adopt the statement of principle which is derived from very strong Australian and English cases describing the common law position on the law as it stood at Independence. As his Honour expounded in the Marshall Lagoon case at [28]-[29]:

“28. The principle of res ipsa loquitur may be invoked when 3 elements are established:

1. there is an “absence of explanation” of the occurrence that caused the damage;
2. the occurrence was of a kind that does not ordinarily occur without negligence; and

100. whatever caused the occurrence was under the control of the defendant.
     

29. Res ipsa loquitur is the process of inferential reasoning from which negligence may be inferred rather than being a distinct rule of law. The High Court of Australia in Anchor Products Ltd v. Hedges [1966] HCA 70; (1966) 115 CLR 493 and Schellenberg v. Tunnel Holdings Pty Ltd (2000) CLR 121, noted that the burden of proof stays with the plaintiff. It is necessary for the court to determine whether the burden of proof has been discharged even if the 3 elements of the principle are established. In Anchor Products (supra), Windeyer J at p.50 said:

‘To say that an act speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict in his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances. It is evidence from which an inference of negligence may be drawn: it does not mean that this inference must necessarily be drawn, although in some cases it may be evidence so cogent and compelling that any other conclusion would be perverse as Du Parcq L.J. pointed out in Easson v. London and North Eastern Railway Co [1944] 1 KB 421 at 425. But always the question whether the plaintiff has discharged the burden of proving his case depends upon the effect of the whole of the evidence given in the case, including such inference as may be drawn from the happening of the accident, if its cause remains unexplained.”

15. Applying the above principle to the case at hand, the primary judge stated at [10]-[12]:

“10. Here, it is conceded by the plaintiff that there is no evidence of the specific cause or source of the fire. The closest the evidence comes is that the fire originated from a room in the first defendant’s shop. There is no evidence of a specific act or omission of the first defendant or of any of its employees or of the security guard or indeed, anyone else that could have caused the fire. The plaintiff submits that the fire is an occurrence that could not occur without negligence. There is no evidence of this. There are numerous ways a fire may start without being due to a negligent act. Examples are lightning strikes and some gas or electrical faults. In this instance, the evidence is that gas or electrical were connected. There is no evidence to the effect that the fire was not caused by either gas or electricity.

11. As to the first of the three elements to be considered in determining whether res ipsa loquitur can be invoked, in Marchall Lagoon (supra) at [34], I stated:

“34. As to the first of the three elements to be considered in determining whether the principle of res ipsa loquitur can be invoked – the occurrence in respect of which there is an absence of an explanation; in Schellenberg’s case (supra), it was stated that:

In principle, we think the relevant cause must be the immediate cause of the occurrence, which means the occurrence must be defined with reasonable precision if the principle is to operate effectively. Definition of the occurrence will determine whether the accident is of a class that does not ordinarily happen if those who have the management use proper care. Definition of the occurrence will also determine whether the cause of the occurrence has been established. To a large extent, the definition of the occurrence will depend on how much the tribunal of fact knows about the accident.””

12. It is not possible on the evidence to determine the occurrence; where inside the room in the first defendant’s shop, did the fire start and what constituted its immediate cause. That the fire started in that particular room in the first defendant’s shop is not sufficient. The occurrence cannot be defined with reasonable precision for the principle of res ipsa loquitur to operate effectively. There remains too much in respect of which there is an absence of explanation. In such circumstances the first of the three elements cannot be properly established. As all three elements are required to be established before the principal can be inferred, the principle is unable to be involved by the plaintiff in this instance.” (Underlining for emphasis)

16. We find no error in the primary judge’s evaluation of the evidence and his conclusion regarding the application of res ipsa loquitor.

17. We note that Cannings J considered the application of the maxim in some recent cases. A number of them involved separate actions by persons who fell ill after consuming canned tuna that contained a condom (John Mombi v RD Tuna Canners Ltd (2017) N6645; David Sengi v RD Tuna Canners Ltd (2017) N6646; Eddie Donatus v RD Tuna Canners Ltd (2017) N6647; Michael Birus v RD Tuna Canners Ltd (2017) N6648; Steven Bill v RD Tuna Canners Ltd (2017) N6649 and Steven Kaipo v RD Tuna Canners Ltd (2017) N6650). In another case, a person became sick after eating fried rice bought from the defendant’s kai bar (Anita Baikisa v J&Z Trading Ltd (2016) N6181).

18. In those cases, it was decided that while there was an absence of explanation of the occurrence that caused damage that could be attributed to the defendant, the principle in res ipso loquitur applied. His Honour found that the occurrence could have been only due to negligence for the reasons that:

(a) there was no other way the condom could have got into the can of tuna but through the negligence of the defendant (because the production of the can was at all times under the care and control of the defendant); and

(b) the only explanation for the contamination of the fried rice must have been through the negligence of the defendant (because the cooking and serving of the rice was at all times under the care and control of the defendant).

19. Cannings J discussed the three elements of res ipso loquitur while making reference to some earlier judgments. In John Mombi v RD Tuna Canners Ltd (supra) for example, his Honour observed at [15]-[33]:

“25. In Burns Philp (New Guinea) Limited v Maxine George (1983) SC259 McDermott J explained res ipsa loquitur in these terms:

The accident must bespeak the defendant's negligence and be such as to raise two inferences:

that the accident was caused by a breach by somebody of a duty of care to the plaintiff, and that the defendant was that somebody.

26. In Timson Noki v Fraser & Barclay Bros [1991] PNGLR 260 Woods J put it this way:

Res ipsa loquitur is no more than a rule of evidence based on common sense which raises a presumption of fact in the absence of any other evidence of explanation that the defendant has been negligent. It suggests that because something went wrong and in the normal scheme of things such would not go wrong unless someone was negligent but no negligence can be found here nevertheless the thing speaks for itself and common sense says there must have been negligence.

27. Hartshorn J explained the operation of the principle in Marshall Lagoon Investment Company Pty Ltd v Ding Company Ltd (2008) N3650:

The principle of res ipsa loquitur may be invoked when three elements are established:

(a) there is an “absence of explanation” of the occurrence that caused the damage;

(b) the occurrence was of a kind that does not ordinarily occur without negligence; and

(c) whatever caused the occurrence was under the control of the defendant.

28. I find that the principle of res ipsa loquitur should be invoked in this case. Applying my simplified approach set out above: the proven facts that the defendant manufactured a can of tinned fish intended for retail sale and human consumption, which contained a condom, leads to only one conclusion: that the defendant was negligent.

29. It is not necessary for the plaintiffs to prove how the defendant was negligent. Maybe the condom fell into the fish by accident. Maybe a rogue or disgruntled employee placed it in the can to embarrass their employer. None of these things had to be proven as the facts speak for themselves and lead only to the conclusion that the defendant was negligent.

30. If the approach outlined by McDermott J in Burns Philip is applied: the “accident” (the plaintiffs getting sick and being shocked due to consumption of the contaminated tinned fish and/or the sight of a condom in their fish) bespeaks (is evidence of) negligence. The accident is such as to raise two inferences: (1) the accident was caused by a breach by somebody of a duty of care to the plaintiffs, and (2) that the defendant (the manufacturer) was that somebody.

31. If the approach outlined by Woods J in Noki is applied: something went wrong. The plaintiffs became ill due to consuming and seeing tinned fish containing a condom. In the normal scheme of things that would not happen unless someone was negligent. The thing speaks for itself and common sense says that the person (the defendant) who manufactured the tinned fish must have been negligent.

32. If the approach outlined by Hartshorn J in Marshall Lagoon is applied: (a) there is an absence of explanation about how the can of tinned fish came to contain a condom; (b) tinned fish does not ordinarily contain condoms, without negligence; and (c) whatever caused the condom to be in the can was under the control of the defendant.

33. The application of all those expositions of the principle of res ipsa loquitur leads to the same conclusion: the defendant breached its duty of care to the plaintiffs. It was negligent. The second element of negligence is proven.”

(Our underlining)

20. We consider the different approaches to applying the principle of res ipsa loquitur referred to by Cannings J, that includes the explanation by Hartshorn J in the Marshall Lagoon case, are in effect the same. In the present matter, the trial judge followed his own judgment in the Marshall Lagoon case, and we repeat that we find no error in his Honour concluding from the evidence that res ipsa loquitur did not apply. There is no reason to disturb the finding that negligence could not have been the only cause for the occurrence of the fire. As the evidence of the weather discounted the possibility of lightning strike, the fire could just the same have originated from gas or electrical fault.

21. Further, we do not accept the Appellant’s assertion that the Second Respondent owed a duty of care to his tenants to provide a fire-proof building by putting in place measures to prevent fire of any type occurring, including those that are accidental, and minimize damage in the case of fire. The evidence did not establish such duty of care existed. The Appellant leased the shop on an “as is-where is” basis, that is, JYT agreed to lease premises in the condition that it was in. By necessary inference, fire protection and prevention became the responsibility of the Appellant as user of the premises. After deciding on the issue regarding res ipsa loquitur, the trial judge concludes at [13] of his judgement:

“13. For the above reasons, there is also insufficient evidence for this court on the balance of probabilities, to be able to find against either of the defendants, in favour of the plaintiff. Given this it is not necessary to consider the other submissions of counsel.”

22. His Honour was entitled to make this finding, and we see no error in the trial judge deciding that the Second Respondent was not liable for loss suffered by the Appellant.

CONCLUSION

23. Having found no errors by the trial judge as alleged by the Appellant, we must dismiss the appeal and order that the Appellant pay the costs of the appeal on a party/party basis, to be taxed if not agreed.

24. ANIS J: The Appellant files this appeal as of right under s. 14(1)(a) and (b) of the Supreme Courts Act Chapter No. 37 against a final decision of the National Court (the trial Court/Judge) made on 28 January 2019. The trial Court dismissed its claim for damages for negligence. The background of the matter is set out by my brother judges. But briefly, on 8 May 2015, the Appellant’s leased building (where it had been conducting business) together with another building that was occupied by the Respondents, were gutted by fire. The premises were located at Erima, next to Gordons in the Nation’s Capital, Port Moresby. The premises were owned by the Second Respondent who is deceased.

25. At the National Court, the Appellant sued both Respondents. It claimed that they were responsible or negligent for the fire. The Respondents denied liability. At trial, the Appellant based its main argument on liability on the principle or doctrine, res ipsa loquitur. The trial Court principally addressed the doctrine of res ipsa loquitur. And when considering the first element, which is, there is an absence of explanation of the occurrence that cause the damage, found the Appellant’s evidence adduced insufficient to establish the occurrence or event that had caused the damage as alleged by the Appellant. Effectively, the said finding by the trial Court rendered the first element unproven or untenable. As such, the trial Court dismissed the claim on the basis that the Appellant was unable to, on the balance of probabilities, establish liability.

THE APPEAL

26. The Appellant, in this appeal, challenges the decision of the trial Court. It states a total of 5 grounds in its Notice of Appeal (NoA). They are, and I quote in part:

3.1 His Honour was correct in holding that the principle of res ipsa loquitur could be invoked by establishing three (3) elements which are:-

(i) there is an absence of explanation of the occurrence that caused the damage;

(ii) the occurrence was of a kind that does not ordinarily occur without negligence; and

(iii) whatever caused the occurrence was under the control of the defendant,

but erred in mixed fact and law by ruling that the three (3) elements could not be properly established in the absence of an explanation when there was evidence that:

(a) the First Respondent used its shop as a Fast Food outlet where the fire started;

(b) the fire started as a result of ‘human intervention’ according to official fire report released by the PNG Fire Service,

(c) the fire started in a room occupied by the First Respondent’s shop manager and security guard provided by the Second Respondent; and

(d) the fire started in the First Respondent’s shop in a room immediately under its control, management and supervision.

3.2 His Honour erred in law in holding that the first of the three (3) elements could not be properly established when it was clear that there was an absence of explanation of the occurrence that caused the damage, which indeed required the application of the principle of res ipsa loquitus.

3.3 His Honour erred in mixed fact and law when He held that there were numerous ways a fire might start without being due to a negligent act, because a fire is an occurrence that could not occur without negligence especially in the absence of a defence by the Respondents claiming lightning strike, which does not require a negligent act.

3.4 His Honour erred in law by misapplying the principles of res ipsa loquitur when the circumstances of the case met the three (3) elements of the principle per se.

3.5 His Honour erred in mixed fact and law by failing to hold that the Second Respondents were negligent for:

3.5.1 failure to ensure safety measures were in place in order to protect the tenants, including the Appellant; and

3.5.2 failure to ensure that two (2) shops were secure and safe from perils such as fire.

ISSUES

27. In my view, the main issues are, (i), whether the trial Judge erred in his application of the first element of the doctrine, res ipsa loquitur to the evidence that was before him, (ii), whether there was sufficient evidence before the trial Judge that if considered, would have met the first element of the doctrine, res ipsa loquitur or the claim of negligence in general, and (iii), whether the trial Judge should have but failed to make determination based on the allegation of negligence outside of his findings that were premised on the doctrine of res ipsa loquitur; whether the trial Judge should have but failed to determine negligence, not based on inferential consideration, but on the evidence that was presented before him.

MISCONCEPTIONS

28. I firstly refer to ground 3.1. The Appellant alleges that, contrary to the findings by the trial Court that there was no explanation of an occurrence provided, there were explanations provided, and it sets them out under sub-paragraphs (a), (b), (c) and (d) of ground 3.1.

29. The best way to address the ground, in my view, is to set out the elements of the doctrine, res ipsa loquitur. Justice Woods in Timson Noki v Frazer & Barclay Bros [1991] PNGLR 260 stated, and I quote in part:

Res ipsa loquitur is no more than a rule of evidence based on commonsense which raises a presumption of fact in the absence of any other evidence of explanation that the defendant has been negligent. It suggests that because something went wrong and in the normal scheme of things such would not go wrong unless someone was negligent but no negligence can be found here nevertheless the thing speaks for itself and commonsense says there must have been negligence.

30. In Marshall Lagoon Investment Company Pty Ltd v. Ding Company Ltd (supra), Justice Hartshorn stated, and I quote in part at paragraph 28 of his decision:

28. The principle of res ipsa loquitur may be invoked when 3 elements are established:

1. there is an “absence of explanation” of the occurrence that caused the damage;
2. the occurrence was of a kind that does not ordinarily occur without negligence; and

100. whatever caused the occurrence was under the control of the defendant.
     

31. I refer to ground 3.1. The term absence of an explanation used therein appeared to have been wrongly applied by the Appellant in formulating this ground of appeal and others. Absence of an explanation of the occurrence, in regard to the first element of the doctrine, res epsa loquitur in this case may refer to absence of other real possibilities or risks, such as, electrical fault, lightning strike, a spark caused by a falling instrument or object, to name a few, which may not be attributed to a negligent act of a person in control. These other possibilities must be ruled out thus or to an extent that there has to be absence of an explanation of the occurrence or the fire, for the first element to be satisfied. However, in the present matter, the trial Court found existence of other possibilities, risks or scenarios which could not be ruled out that may not be attributed to negligence. For example, in this instance, smoke was seen coming out of a room in the building that was occupied by the First Respondent. That had constituted part of the circumstantial evidence of the Appellant from its witnesses, that was before the trial Court. And the Appellant had argued, amongst others, that there was no other way except human intervention that could have caused the smoke to come out of the room followed by a fire that had caused the damage. I ask myself this. Was or would that be a logical or a rational perception to draw, that is, based on the said scenario? My view is in the contrary. It would and cannot be a logical assumption; to think or make the assumption or argument that because smoke was coming out of the building, it therefore only meant that a person had caused it and in so doing rule out other possibilities that could or may have also caused the smoke, is with respect, a wrong or an irrational conclusion to draw or argue. This was also the view of the trial Court, which had found that other possibilities had existed at the material time which had not been ruled out or explained by the evidence of the Appellant; possibilities that may not be attributed to negligence. So, given all that, it cannot be said that there is an “absence of explanation” of the occurrence that caused the damage. The first element of the doctrine res ipsa loquitur therefore was not met as found by the trial Court. Not only that, the Trial Court also could not establish the occurrence or event which was a material part of the prerequisites under the first element, where the Court had to determine or ascertain before deciding whether the first element has been met or established by the Appellant.

32. I note that ground 3.1, with respect, is drafted without regard to a full understanding or meaning of the term absence of an explanation as expressed in the doctrine res ipsa loquitur which is explained above. Such misconception makes the ground of appeal illogical and baseless, and I would therefore dismiss it. I will also say this. I do not find any error in the trial Court’s findings in this regard. The Appellant’s evidence did not show or establish the occurrence or event that was required or necessary for the Court to determine the first element of the doctrine, res ipsa loquitur. The evidence fell short where people simply saw smoke coming out of a room that was occupied by the First Respondent. The 2 fire reports that were admitted as evidence were secondary evidence. They also appear incomplete, and they give inconsistent or contradictory accounts of the incident of 8 May 2015. The want of sufficiency of evidence was noted by the trial Judge. At paragraph 12 of the judgment, the His Honour stated, and I quote: It is not possible on the evidence to determine the occurrence; where inside the room in the first defendant’s shop, did the fire start and what constituted its immediate cause. That the fire started in that particular room in the first defendant’s shop is not sufficient. His Honour concluded at paragraph 13 where he said and I quote in part: For the above reasons, there is also insufficient evidence for this court on the balance of probabilities, to be able to find against either of the defendants, in favour of the plaintiff.

GROUNDS 3.2, 3.3 and 3.4

33. I turn to Grounds 3.2, 3.3 and 3.4. In my view, they are based on arguments concerning absence of an explanation and the first element of the doctrine, res ipsa loquitur.

34. I repeat the same reasonings I gave above in relation to ground 3.1 of the appeal, here, and in so doing, dismiss grounds 3.2, 3.3 and 3.4 as misconceived and baseless. I also dismiss them for the reason as stated above, that is, that the trial Court did not err in its considerations which were based on the doctrine of res ipsa loquitur and its findings on the insufficiency of evidence to establish the first element and the claim in general.

GROUND 3.5

35. The final ground of appeal is ground 3.5. The Appellant argues that the trial Court should have proceeded to consider whether the Second Respondent was negligent, that is, outside its reliance on the doctrine of res ipsa loquitur.

36. In my view, this ground of appeal will also fail. The reason is this. The proceeding was commenced based on the tort of negligence before the National Court. At the trial, it seemed that based on possible insufficiency of evidence that would not have otherwise made out a clear case of negligence, the Appellant chose as its first argument the doctrine of res ipsa loquitur. The approach requires a less stringent test on the evidence in order to hold a person liable for negligence, that is, the requirement would be to draw an inference of negligence rather that to fully establish its elements, namely, (i) duty of care, (ii), breach of the duty, (iii), causation and (iv) damages suffered due to the breach. But yet or despite these, the trial Court still found that the appellant was unable to establish the said doctrine; that the evidence adduced was insufficient. And at the conclusion, the trial Court appeared as saying that given the general lack of evidence adduced by the appellant, that it did not see it necessary to consider other submissions or issues. That obviously included other submissions or issues concerning negligence that had been presented by the parties.

37. I have considered the evidence in the Appeal Book that had been before the trial Court. It is difficult to see where His Honour could have erred in reaching the conclusion as he had done in this case. Even if I were to agree with the Appellant and say that the trial Judge erred in that he should have considered the evidence and made a separate finding of negligence against the Second Respondent, the outcome would have been the same. There was insufficient evidence before the Court that had been adduced by the Appellant. Consequently, the trial Court made the decision as it did, that is, where it said that there was insufficient evidence, on the balance of probabilities, that was before it to make findings against the First and Second Respondents, and it further went on to rule that given that, that it was not necessary to proceed further with the other issues or submissions that were raised.

SUMMARY

38. In summary, I would dismiss the appeal with costs in the manner as proposed by my brothers herein.

ORDERS OF THE COURT

39. We order as follows:

1. This appeal is dismissed.
2. The Appellant shall pay the Respondents’ costs of this appeal on a party-party basis, to be taxed if not agreed.
3. Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

_________________________________________________________________
Parker Legal: Lawyers for the Appellants
Pacific Legal Group: Lawyers for the First Respondent
Haiara Legal Practice: Lawyers for the Second Respondent