Allen Anis v Dobon Taksey

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 16 December 2011
• Citation: (2011) N4468
• Court: National Court
• Year: 2011
• Judgement Number: N4468

Full : WS NO 850 OF 2007; Allen Anis v Dobon Taksey and Gogol Naru Landowners Association Inc (2011) N4468

National Court: Cannings J

Judgment Delivered: 16 December 2011

N4468

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 850 OF 2007

ALLEN ANIS

Plaintiff

V

DOBON TAKSEY

First Defendant

GOGOL NARU LANDOWNERS ASSOCIATION INC

Second Defendant

Madang: Cannings J

2010: 18 December,

2011: 19 August, 9 September,

16 December

NEGLIGENCE – motor vehicle collision – relevance to civil liability of defendant driver’s conviction of traffic offence – standard of proof – vicarious liability – effect of admission of liability in pleadings on plaintiff’s duty to adduce evidence – National Court Rules, Order 9, Rule 30 (judgment on admissions).

There was a collision between the plaintiff’s truck (driven by the plaintiff’s son) and the second defendant’s truck (driven by the second defendant’s employee, the first defendant) and, as a consequence, the plaintiff’s truck was damaged. The police investigated the collision and the first defendant was arrested, charged and convicted in the District Court of two traffic offences, including driving without due care and attention. The plaintiff sued the defendants, claiming damages for damage to the truck and lost income (as he claimed that it was a profit-earning asset) for negligence. The defendants denied liability, as to the first defendant, on the ground that the relevant standard of proof was beyond reasonable doubt, which the plaintiff failed to discharge as evidence of the traffic offences was inadmissible and irrelevant to determination of civil liability; and, as to the second defendant, on the ground that, though there was an admission of vicarious liability in the pleadings, the plaintiff had failed to discharge the obligation to adduce evidence of the facts giving rise to vicarious liability, viz that the first defendant was an employee of the second defendant and that he was driving the truck in the course of his employment at the time of the collision.

Held:

(1) These were civil proceedings and, notwithstanding that the events giving rise to the cause of action also led to criminal proceedings (in which the relevant standard of proof was beyond reasonable doubt) the relevant standard of proof here was on the balance of probabilities.

(2) Evidence of the first defendant’s conviction on traffic offences was admissible and relevant.

(3) Evidence adduced by the plaintiff was sufficient to prove, on the balance of probabilities, that the second defendant was negligent.

(4) Other elements of the tort of negligence (that the first defendant owed a duty of care to the plaintiff’s son and the plaintiff, that the first defendant’s negligent conduct caused damage to the plaintiff and that it was not too remote) were easily proven. Therefore the plaintiff established a cause of action in negligence against the first defendant.

(5) As to the second defendant’s liability, this had been conceded in the defence filed on behalf of the defendants, which amounted to an admission of liability. The plaintiff was not obliged to adduce evidence of facts that would otherwise be necessary to establish vicarious liability. The court exercised its discretion under Order 9, Rule 30 (judgment on admissions) of the National Court Rules to enter judgment against the second defendant.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414

Copland Oa and Esther Korua v Nelson Korua (1999) N1871

Dalin More v The State and Chief Inspector Jim Onopia & Others (1998) N1736

Daniel Occungar v Luke Kiliso (2010) N4102

John Kul v The State (2010) N3898

Kembo Tirima v Angau Memorial Hospital Board (2005) N2779

Kuk Kuli v The State (2004) N2592

Litina Okevi v PNG Electricity Commission (2006) N3074

Mathew John Westcott v MVIL (2008) N3565

Re Moresby North East Parliamentary Election (No 2): Goasa Damena v Patterson Lowa [1977] PNGLR 448

Timothy Mong v George Doa (1997) N1540

Titus Banga v Madang Port Services Ltd (2011) N4302

Vincent Kerry v The State (2007) N3127

TRIAL

This was a trial on liability for negligence.

Counsel

T M Ilaisa & J Lai, for the plaintiff

C S N Narokobi, for the defendants

16 December, 2011

1. CANNINGS J: This is a trial on liability arising from the following events. On Monday 26 March 2007 at 6.30 pm there was a road accident on Modilon Road, in the Redscar area of Madang town. There was a collision between:

· a Toyota Dyna truck owned by the plaintiff, Allen Anis, which was being driven by his son, Henry Anis; and

· a Hyundai truck, driven by the first defendant, Dobon Taksey, who was allegedly an employee of the owner of the truck, the second defendant, Gogol Naru Landowners Association Incorporated.

2. Both trucks were being driven into town. The Hyundai was some distance ahead of the Dyna. Near Laiwaden Oval the Hyundai made a U-turn, which was poorly negotiated as it came back into the path of the Dyna. The Dyna driver unsuccessfully sought to avoid a collision. Both trucks were damaged. The drivers and passengers (two in each truck) suffered only minor injuries. The first defendant was arrested and charged by the police within an hour of the collision and three days later, on 29 March 2007, convicted by the Madang District Court of two traffic offences relating to the collision:

· driving a motor vehicle between the hours of sunset and sunrise without a lighted lamp attached to the rear of the vehicle contrary to Section 94(1)(b)(i) of the Motor Traffic Regulation; and

· driving a motor vehicle without due care and attention contrary to Section 17(2) of the Motor Traffic Act.

3. The penalties were a fine of K50.00 and K100.00 respectively, payable forthwith; and in default, two months and three months imprisonment respectively. The fines were paid and the first defendant was not imprisoned. The plaintiff subsequently commenced civil proceedings against him and the second defendant, claiming damages for negligence. He seeks damages for the damage to the truck and for lost income (as he claimed that it was a profit-earning asset) and mental stress. The defendants filed a defence, denying all liability, and a trial has been conducted to determine the issue of liability. The case will only progress to an assessment of damages if the plaintiff establishes liability against the first and/or second defendants.

4. It is uncontentious that in relation to the first defendant, the only issue is whether he drove the Hyundai negligently. Existence of the other elements of the tort of negligence (that the first defendant owed a duty of care to other road users and the owners of other vehicles on the road, that the conduct of the first defendant caused damage to the plaintiff’s Dyna, which was not too remote) is self-evident (Daniel Occungar v Luke Kiliso (2010) N4102). As to the second defendant, the primary issue – if liability is established against the first defendant – is whether it is vicariously liable, by virtue of being his employer, for the negligence of the first defendant.

WAS THE FIRST DEFENDANT NEGLIGENT?

5. To prove this issue the plaintiff presented four affidavits, one by himself, which annexes certificates of conviction in respect of the traffic offences of which the first defendant was convicted, one by his son and two by the passengers in the Dyna. The affidavits of his son, who drove the Dyna, and the passengers give a consistent account of how the collision occurred and point clearly to the first defendant being at fault. They also show that immediately after the collision the first defendant drove the Hyundai on to Laiwaden Oval and fled the scene. It was only because of the good offices of a passing motorist, Mr Peter Yama, who saw what happened and gave chase that the first defendant was able to be quickly apprehended and the Hyundai impounded that night at Jomba Police Station. The defendants adduced no evidence but deny that the plaintiff has proven that the first defendant was negligent.

6. Mr Narokobi, for the defendants, submitted that because the plaintiff’s claim has criminal attributes the relevant standard of proof is beyond reasonable doubt, which the plaintiff has failed to discharge. Evidence of the alleged criminal convictions is inadmissible, but if it is accepted as evidence, it is irrelevant to determination of civil liability, and the fact that a court exercising criminal jurisdiction found him guilty does not necessarily mean that judgment should be entered against him.

7. I will deal with the last point first, which was not contested by Mr Ilaisa, for the plaintiff, but it is a fundamental point, which needs to be emphasised from time to time. These are civil proceedings, the purpose of which is to ascertain whether the defendants are civilly liable to the plaintiff and whether the plaintiff should be awarded a civil remedy, such as damages. These are not criminal proceedings, the purpose of which is to ascertain whether a defendant has committed a criminal offence and is liable to a criminal...