Roka Coffee Estate Pty Ltd v Largo Gerebi and Joseph Tomonoi [1973] PNGLR 486

• Jurisdiction: Papua New Guinea
• Judge: Minogue CJ:
• Judgment Date: 27 June 1973
• Court: Supreme Court
• Citation: [1973] PNGLR 486
• Year: 1973
• Judgement Number: FC49

Full Title: Roka Coffee Estate Pty Ltd v Largo Gerebi and Joseph Tomonoi [1973] PNGLR 486

Full Court: Minogue CJ, Frost SPJ, Clarkson J

Judgment Delivered: 27 June 1973

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROKA COFFEE ESTATE PTY. LTD.

V

LARGO GEREBI AND ANOTHER

Port Moresby

Minogue CJ Frost SPJ Clarkson J

26-27 March 1973

27 June 1973

NEGLIGENCE — Fatal accident — Vicarious liability — Vehicle owner's liability for the negligent driving of his employee — Was the employee acting within the scope of his employment in giving a lift to a stranger — Liability under the Law Reform (Miscellaneous Provisions) Ordinance, 1962 Pt. IV and under the Motor Vehicles (Third Party Insurance) Ordinance 1952-1956, ss. 6 (2), 6 (3).Sections 6 (2) and 6 (3) provide:

(2) Subject to the next succeeding subsection, for the purposes of a third-party policy and of a claim for the death of or bodily injury to a person caused by, or arising out of the use of a motor vehicle insured thereunder, a person, other than the owner, who is driving the motor vehicle, whether or not with the owner's authority, shall be deemed to be the authorized agent of the owner, and to be acting in relation thereto within the scope of his authority as such agent.

(3) If at the time when a claim referred to in the last preceding subsection arose the motor vehicle concerned was in charge of or being driven by a person for whose acts or omissions at that time the owner apart from the provisions of the last preceding subsection would not have been liable, the liability of the owner under that subsection shall be limited to the amount for which he shall be entitled to be indemnified against that claim under the third-party policy.1

The plaintiff's husband, a school teacher, was killed in a motor accident. He was one of a party of ten persons who had been given a lift in a vehicle owned by the defendant and driven by one of its employees, a coffee buyer. The deceased knew that the driver was adversely affected by liquor, and the deceased had an opportunity to alight. The accident was caused by the driver's negligence. In an action brought under the Law Reform (Miscellaneous Provisions) Ordinance, 1962 Pt. IV against the employer the trial judge awarded $19,500 damages to the plaintiff.

On appeal to the Full Court;

Held

(1) The driver had, on the facts, no express or implied authority from his employer, the vehicle owner, to pick up passengers and hence was not acting within the scope of his employment in doing so. Consequently the employer was not vicariously liable for the driver's negligence.

Twine v. Bean's Express [1946] 1 All E.R. 202 followed.

(2) But s. 6 (2) of the Motor Vehicles (Third Party Insurance) Ordinance 1952-1956 made the owner liable for the driver's conduct whether or not the owner authorized the driver to drive and whether or not the circumstances were such that the owner would be vicariously liable at common law.

Jennings v. Hannan (1968-69), 89 W.N. (Pt. 2) (N.S.W.) 232 followed;

And the owner's liability under s. 6 (3) of that Ordinance was limited to the amount of his indemnity under the third-party policy, which in this case was $8,000.

(3) (Per Frost SPJ), obiter, the standard of care to be expected from the driver should not vary with the passenger's knowledge of the driver's skill or condition.

Nettleship v. Weston [1971] 2 Q.B. 691, Insurance Commissioner v. Joyce (1948), 77 C.L.R. 39 and Roggenkamp v. Bennett (1950), 80 C.L.R. 292 considered.

(4) The trial judge was not wrong in rejecting the defence of voluntary assumption of risk. In all the circumstances, including the uncertainty of alternative transport and the danger of walking along the road at night, the passenger had no practical choice but to continue riding in the vehicle.

Sara v. Government Insurance Office of New South Wales (1969), 89 W.N. (Pt. 1) (N.S.W.) 203 considered.

(5) (Per Frost SPJ and Clarkson J) the award of damages was on the facts excessive.

(6) The appeal should be allowed and the damages reduced to $8,000.00.

Appeal

This was an appeal against a judgment for $19,500.00 awarded by Muirhead AJ in favour of the plaintiff (respondent) in an action brought pursuant to Pt. IV of the Law Reform (Miscellaneous Provisions) Ordinance, 1962, on behalf of herself as widow and on behalf of two children of the marriage. The plaintiff's husband was killed in a motor vehicle accident in July 1968 whilst a passenger in a motor vehicle which was then owned by the defendant (appellant) and being driven by another defendant. Further relevant facts appear in the reasons for judgment of Frost SPJ The trial judge found that driver defendant was guilty of negligence whilst driving in the course of his employment by the appellant and rejected the defences of volenti non fit injuria and contributory negligence. The appellant appealed against both liability and quantum.

Counsel

F. G. Brennan Q.C. and G. R. Rissen, for the appellant.

K. O'Leary and M. Campbell, for the first respondent.

Cur. adv. vult.

27 June 1973

The following written judgments were delivered:

MINOGUE CJ: I shall ask my brother Frost to deliver the first judgment.

FROST SPJ: This is an appeal brought by the appellant, who was one of the defendants, against a judgment for $19,500.00 given by Muirhead AJ in favour of the respondent Largo Gerebi, who was the plaintiff in an action brought by her as the widow of one Vari Kila deceased, for damages resulting from the death of her husband in a road accident which occurred on Friday the 12th July, 1968. The action was brought against the appellant, who was the owner of the utility truck in which the deceased was travelling as a passenger when he suffered the injuries which caused his death, and also against the respondent Joseph Tomonoi who was the driver of that vehicle. The action was brought pursuant to the Law Reform (Miscellaneous Provisions) Ordinance 1962 on the plaintiff's own behalf and on behalf of two children of the marriage, Doris Vari and Vari Vari. The respondent Tomonoi did not appear and took no part in the appeal. The appeal is brought both against liability and the quantum of damages.

The respondent Largo Gerebi, whom I shall call the respondent, claimed in the action that her husband's death was caused by the negligence of the appellant, its servant or agent, Joseph Tomonoi, who it was alleged was driving the vehicle in the course of his employment, and by the negligence of Joseph Tomonoi in the driving, management and control of the motor vehicle. At the hearing the defendant denied the allegations of agency, driving in the course of employment and negligence. Contributory negligence was pleaded, and also the defence of volenti non fit injuria in the following terms:

"Alternatively the Defendants say that the deceased person VARI KILA knew and accepted the obvious risk of driving in the motor vehicle registered number 35-372 at all relevant times when the driver was clearly under the influence of intoxicating liquor and had immediately before the relevant journey demonstrated a present propensity to drive recklessly and at high speed."

During the plaintiff's case, the joint defence was amended by leave, to include a plea that the defendants were not in breach of any duty.

From the evidence at the trial it appeared that a collision occurred shortly after sunset on the Highlands Highway about six miles from Goroka between the vehicle driven by Tomonoi, which had been travelling towards Goroka, and a vehicle being driven in the opposite direction by one Ega Buassi. The trial judge found that the collision was caused by the negligence of Tomonoi, and no appeal is brought against that finding. The defences of volenti non fit injuria and contributory negligence were both rejected.

As to liability, the main grounds of appeal were related to the trial judge's rejection of the defence of volenti non fit injuria, and against the finding that the respondent Tomonoi was driving in the course of his employment by the appellant. No appeal is brought against the finding that there was no contributory negligence. The witnesses who gave evidence at the trial were Inspector Jarratt, who was called to the scene of the accident, and also three of the passengers in the utility. They were Leslie Boase, a carpenter from Rabaul, Set Tadae, also a carpenter, from Lae, and Henry Kombil, a Tolai teacher who was afflicted by arthritis. Kombil and the deceased, who was also a teacher, had arranged a shopping expedition in Goroka for the weekend. At about 4.30 p.m. at Henganofi Kombil saw Tomonoi and arranged a lift to Goroka. The trial judge found that the deceased was probably present and was thus a party to that arrangement. The journey commenced at Henganofi, a distance of about twenty-three miles along te Highlands Highway, east of Goroka. Over this distance the road was winding and undulating.

It is not necessary to state the facts in detail. Inspector Jarratt said that there were twelve persons in...