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Maik v State [2024] PGSC 102; SC2629 (24 September 2024)

SC2629

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 48 OF 2021

ROBERT MAIK
Appellant

V

THE STATE
Respondent
Waigani: Toliken J, Kaumi J, Narokobi J
2023: 27th June
2024: 24th September


WRONGS (MISCELLANEOUS PROVISIONS) ACT 1975 – Section 4 - Negligence – Conclusive Presumption of Agency of the State in Motor Vehicle Accident – Whether Pre-conditions Met for State to be Vicariously Liable.


This is an appeal from the decision of the National Court dismissing a claim against the State for negligence. An employee of the Respondent damaged the Appellant’s bus (a Public Motor Vehicle) in an accident. The Appellant seeks damages for the pre-accident value of his bus and for loss of business. The Appellant contends that had the trial judge applied s 4 of the Wrongs (Miscellaneous Provisions) Act 1975 (Wrongs Act) the State would have been vicariously liable for negligence for the actions of its employee.

Held:

(1) Section 4 of the Wrongs Act, provides the following pre-conditions for there to be a conclusive presumption of agency of the State to be vicariously liable:
  1. A claim, or a claim for contribution in relation to liability of the State or the instrumentality for damages; and
  2. Made against the State or an instrumentality of the State; and
  1. For damages in respect of the death of, or personal injury to, a person; and
  1. Caused by, or arising out of the use of, an uninsured motor vehicle owned by the State or the instrumentality.

(2) If all the pre-conditions are satisfied then the driver of the vehicle is conclusively presumed to have been at all relevant times, with respect to the driving of the vehicle, the agent of the State or of the instrumentality, and acting within the scope of his authority. There would be a presumption that the State is vicariously liable.

(3) This was a claim for damages concerning a vehicle and for loss of business. It was not one relating to the death of, or personal injury to, a person. Since one of the pre-conditions was not met, vicarious liability against the State could not be established and the appeal is consequently, dismissed.

Cases Cited
Goiye v The State (1987) N624

Legislation Cited

Wrongs (Miscellaneous Provisions) Act 1975

Counsel

S Wanis, for the Appellant
V Balio, for the Respondent

24th September 2024


  1. BY THE COURT: This is an appeal against the decision of the National Court dismissing a claim against the State for damages to a public motor vehicle in a car accident and the resulting loss of business from the actions of its employee on the basis that had the trial judge applied s 4 of the Wrongs (Miscellaneous Provisions) Act 1975 (Wrongs Act), the State would have been found vicariously liable for negligence.

Background


  1. The Appellant, the Plaintiff in the National Court, was the owner of a Toyota Coaster Bus, with registration P-262C, which operated in Port Moresby. In the afternoon of 3 July 2010, the bus driver and the crew were returning home with a few passengers. A sedan owned by the Prime Minister’s department was driving at high speed and went across to the bus’ lane and hit the driver’s side of the bus. Both vehicles were damaged beyond repair from the accident. The passengers suffered injuries and were treated at the hospital. The driver of the sedan was found guilty of negligent driving and penalised. The Appellant claims that the driver of the vehicle was negligent, and the State should be responsible for the damages he suffered.

National Court Decision


  1. In the National Court liability was resolved against the Appellant and his claim was dismissed. The learned trial judge’s main reason can be found at paragraphs 29, 30 and 31 of the judgment:

29. Consequently, I do accept the evidence of the second defendant that the first defendant was no longer a public servant and therefore his use of the said vehicle was illegal. The first defendant was driving the said government vehicle without authority. He was already retrenched from the public service. He was on a frolic of his own. Furthermore, the trip was for his own private use outside of the official public service working hours and not on any authorized duties. This is confirmed by the first defendant own admission to using the state owned vehicle for personal reasons, the use was outside of working hours and that he drove the said vehicle without due care and attention as shown in the conviction order by the District Court.


30. Given these matters, I accept the second and third defendant’s submissions denying liability as the plaintiff failed to address evidence of the facts giving rise to a claim based on the principle of vicarious liability. Essentially, the plaintiff did not adduce any evidence before the court to show that the first defendant was an employee of the second defendant or that he was driving the said state owned vehicle registration number ZGB 849 in the course of his employment or performance of his duties functions at the time of the collision or that he was an agent and a servant of the state at the time of the coalition.


31. In conclusion I am satisfied that no evidence was presented before the court which gave rise to the claim for negligence based on the principles of vicarious liability against the second and third defendants. The plaintiff failed to establish liability against the second and third defendants. No course of action lies against the second and third defendants and the claim against them is dismissed. Given this ruling, I make no award for damages.


Appeal Ground


  1. There is only one ground of appeal, stated as follows:

3 (a) The trial judge fell into error of law by failing to consider the plaintiff submission that there was a presumption of agency by virtue of Section 4 of the Wrongs (Miscellaneous Provisions) Act 1975 that tortfeasor was conclusively presumed to have been at all relevant times, with respect to the driving of the vehicle, the agent of the respondent, acting within the scope of his authority and by not applying this law the judge erroneously concluded that:


  1. the respondent was not vicariously liable for the tortuous acts of the tortfeasor (first defendant), and
  2. the appellant failed to disclose a reasonable cause of action against the respondent.
  3. The Appellant contends from s 4 of the Wrongs Act that the question of vicarious liability is determined without consideration of who drove the vehicle, and under what circumstances the incident occurred. All that is necessary is that the vehicle is owned by the State.

Considerations


  1. Section 4 of the Wrongs Act states:

4. Conclusive Presumption of Agency in Respect of Driving of Government Vehicles.


(1) In proceedings in which–


(a) a claim is made against the State or a statutory instrumentality for damages in respect of the death of, or personal injury to, a person caused by, or arising out of the use of, an uninsured motor vehicle owned by the State or the instrumentality; or


(b) a claim is made by or against the State or a statutory instrumentality for contribution in relation to liability of the State or the instrumentality for such damages,


the driver of the vehicle shall, for the purposes of the claim, be conclusively presumed to have been at all relevant times, with respect to the driving of the vehicle, the agent of the State or of the instrumentality, as the case may be, acting within the scope of his authority.


(2) Nothing in this Division implies ratification by the State or a statutory instrumentality of the acts of the driver of a vehicle.


(Empasis in bold added)


  1. Section 4 of the Wrongs Act, provides the following pre-conditions for there to be a conclusive presumption of agency of the State to be vicariously liable:
    1. A claim, or a claim for contribution in relation to liability of the State or the instrumentality for damages; and
    2. Made against the State or an instrumentality of the State; and
    1. For damages in respect of the death of, or personal injury to, a person; and
    1. Caused by, or arising out of the use of, an uninsured motor vehicle owned by the State or the instrumentality.
  2. If all these pre-conditions of s 4 of the Wrongs Act are satisfied, then the driver of the vehicle is conclusively presumed to have been at all relevant times, with respect to the driving of the vehicle, the agent of the State or of the instrumentality, and acting within the scope of his authority. There would be presumption of vicarious liability.
  3. It is apparent from a close reading of s 4 of the Wrongs Act, especially s4(1)(a), that the claim (for damages) must arise from the death or from a personal injury to a person. The key point is that the claim for damages must relate to a person.
  4. The Appellant’s claim in the National Court was for damages for the pre-accident value of his bus and for the loss of business suffered because of the damage done to his bus. The claim was therefore not one that related to “a person.”
  5. The case authority relied on by the Appellant, Goiye v The State (1987) N624, had applied s 4 of the Wrongs Act and found the State vicariously liable for negligence. However, it was a case for personal injuries. It was not a claim for damages for the value of a vehicle and loss of business as in this case. The facts of the two cases are materially distinguishable. The case authority cited by the Appellant is therefore not helpful to him.

Conclusion


  1. In our view, the Appellant has not met the consideration set out in s 4(1)(a) of the Wrongs Act, because the claim does not arise from the death of a person or for personal injuries. The appeal should accordingly be dismissed with costs to be taxed, if not agreed.

Orders


  1. The formal orders of the court are as follows:
    1. The Appeal is dismissed and the decision of the National Court in WS 1300 of 2012 delivered on 20 April 2021 is affirmed.
    2. The Appellant shall pay the Respondent’s costs, to be taxed if not agreed.
    3. The time for the entry of these orders is abridged.

Judgment and orders accordingly.


Solomon Wanis Lawyers: Lawyers for the Appellant
Acting Solicitor General: Lawyers for the Respondent


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