Paulus Kei v Tony Hasu, Sam Inguba and The Independent State of Papua New Guinea (2004) N2743

• Jurisdiction: Papua New Guinea
• Judge: Salika J
• Judgment Date: 03 December 2004
• Court: National Court
• Citation: (2004) N2743
• Year: 2004
• Judgement Number: N2743

Full Title: Paulus Kei v Tony Hasu, Sam Inguba and The Independent State of Papua New Guinea (2004) N2743

National Court: Salika J

Judgment Delivered: 3 December 2004

N2743

PAPUA NEW G UINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 523 OF 2003

Between:

PAULUS KEI - Plaintiff

And

TONY HASU – 1st Defendant

And

SAM INGUBA – 2nd Defendant

And

THE STATE -3rd Defendant

WAIGANI : SALIKA, J

10 June, 3 December, 2004

Mr G Koi for the Plaintiff

Ms J Tindiwi for the 3rd Defendant

Vicarious liability – Wrongs Act – vicarious liability of State for torts – need to plead that employee of State acting in the course of employment.

Damages – award of K14,200 for repair costs – award of K13,959 for loss of business – plaintiff not a tax payer –s.11 Income Tax Act – anyone earning more than K3,000 per annum must pay income tax – Plaintiff must pay income tax.

Cases Cited:

DAVID KOFOWEI V AUGUSTINE SIVIRI (1983) PNGLR 449,

ERIARE LANYAT V GEORGE WAGULO & THE STATE (1997) PNGLR 253.

03 December, 2004

The Plaintiff in this matter was the registered owner of a Public Motor Vehicle Registration number P425B (the PMV) a 25 seater bus. This motor vehicle was involved in a road accident on 11 June 2003 with a marked police vehicle, a Toyota Land Cruiser 10 Seater Registration number ZGB 337. The police vehicle was driven by the First Defendant who is a policeman. The PMV was driven by the plaintiff employed driver Dopu Thomas.

The accident occurred at the junction of Camerom Road and Jabiru Drive, Gordons. The PMV was waiting on Cameron Drive to allow the police vehicle to pass before it could turn right to the Lapwing Drive, Gordons. The police vehicle was coming from the opposite direction and ran front on onto the PMV.

The plaintiff alleged that the driver of the police vehicle was driving under the influence of alcohol at the time of the accident. He alleged that the police driver was charged by the traffic police and is awaiting trial on the matter.

The plaintiff alleged that the accident has adversely affected the daily operation of his PMV bus and as a result of that he has suffered loss and damage in that he has been left with a huge repair cost.

The plaintiff alleged that the First Defendant drove while under the influence of alcohol and that he drove at excessive speed without due care and attention. He alleged that the First Defendant did not take proper control of the vehicle he was driving and that the First Defendant was negligent in his driving of the police marked motor vehicle.

The plaintiff has claimed damages for cost of repair of the PMV bus and for loss of business.

The Second Defendant and the Third Defendants are sued vicariously. After the writ of summons had been served on the Defendants the First Defendant failed to file a notice of intention to defend and a Defence. A default judgement was entered against the First Defendant with damages to be assessed on the 10 September 2003. In relation to the issue of liability against the Third Defendant it was ordered to proceed to trial and if found liable then damages to be assessed then.

This court therefore proceeds on the basis that the First Defendant is liable. The Third Defendant is only sued because it employs the First Defendant and may be vicariously liable for any acts or omissions of its employers or agents or servants. The first defendant did not file a notice of intention to defend nor did he file a defence. The effect of his failure to file a notice of intention to defend and a defence is that he admits responsibility and liability. On that basis the Court ordered default judgement against him.

In so far as the Third Defendant is concerned the only issue in order for it to be also liable is whether the First Defendant was acting in the course of his police duty so as to render the State liable. If the First Defendant was on duty and acting in the course of his employment when the accident occurred then it could be argued that it is liable. If it is not established that he was acting in the course of his duties then the State may not be liable.

The first defendant needed to file a defence. He did not. He is therefore liable. The first defendant has not denied he was driving the motor vehicle that caused the accident. He has not denied being a policeman and performing his duty as a driver of that motor vehicle. He has not denied he was negligent. As he had not denied the allegations that were served on him he was found liable by virtue of the default Judgement. The State also did not file a notice of intention to defend nor a defence but when application for a default judgement was made the court ordered that the second defendant and the third defendants liability to proceed to trial.

The State filed a submission on liability and assessment of damages on 8 December 2003. In that submission it was submitted that the third defendant is not vicariously liable for the negligent acts or omission of the first defendant. It submitted that the first defendant was doing his own thing and not on official police duty. The State submitted that there is no evidence that the State is liable. It submitted that there is no evidence that he was carrying out orders. It submitted that the Firs Defendant is liable in his own capacity and the State should not be dragged in. It also submitted that the first Defendant was never its servant nor agent performing his duties.

The fact of the matter however is that while the State has made those assertions it has made them without any evidence. It has also made them without filing a defence.

On the other hand the plaintiff would be assuming that because the First Defendant was driving the police marked vehicle he was a policemen and acting in the course of his employment.

The situation now has been brought about when a default judgement was not entered against the State. This is unusual because normally an application for a default judgement is either granted or not granted. Where it is not granted the defence is given time to file its defence. No defence was filed. No application was made by the State to file its defence out of time.

It is trite law that the State is liable for wrongs committed by its servants or agents in the course of performing their duties and responsibilities to the extent that the duties and responsibilities had been conferred or imposed on them by the agencies of the State and that those servants and agents were actually performing those duties and responsibilities. Section 1(4) of the Wrongs (Miscellaneous Provision) Act specifically spells that out – See DAVID KOFOWEI V AUGUSTINE SIVIRI (1983) PNGLR 449, ERIARE LANYAT V GEORGE WAGULO & THE STATE (1997) PNGLR 253.

In this case the First Defendant was alleged to be a serving member of the Royal Papua New Guinea Constabulary. There was no denial of that allegation, nor has there been further proof of that;

The plaintiff’s pleadings in the Statement of Claim does not allege that the First Defendant was performing his duties and responsibilities at the material time and that by virtue of performing those official duties he negligently cause the accident. This is a vital omission by the plaintiff in my view. A plaintiff who sues another party on the basis of vicarious liability in my respectful view must specifically plead that fact; that is that the employee or agent was in the normal course of doing business when the wrong was committed.

In the Statement of Claim the plaintiff pleaded that :-

1. The Plaintiff is a natural person who is capable of suing and being sued in his own name and style.

2. The First Defendant is a natural person and is a serving member of the Royal Papua New Guinea Constabulary.

3. The Second defendant is the Commissioner for Police and is sued in his capacity as such.

4. The Third Defendant is the employer of the First and Second defendants and is vicariously liable for any acts or omissions of the First and Second defendants.

5. The plaintiff is the owner of a Public Motor Vehicle bus and a PMV operator here in the National Capital District.

6. On or about the 11th January, 2003 at about 3.30 pm, the plaintiff’s PMV Registration No P425B, a Route 17 Bus driven by the driver Thomas Dopu was approaching Lapwing Drive turn off along Gordon Circuit, from the round about of Kennedy Road, Cameron Road and Goodwit Road fully loaded with passengers.

7. The First Defendant drove a marked Police Vehicle, a Toyota Land Cruiser 10 Seater Registration No ZGB 337 blue in colour, whilst under the influence of alcohol at a very high speed on Gordon Circuit in the opposite direction, from the roundabout of Cobon street.

8. The First Defendant whilst driving along, lost control of his vehicle. The Toyota Land Cruiser crossed over to the opposite lane where the Plaintiff’s PMV bus was coming. The PMV driver realized that the Toyota Land Cruiser was driving right at the PMV, suddenly applied its brakes causing it to come to a sudden stop,

9. The Toyota Land Cruiser’s front left side hit the PMV bus right in the centre causing...