Mucksil Omonon v Susie Kaipa Kuanga and Hertz Leasemaster Limited (2012) N4686

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 18 May 2012
• Citation: (2012) N4686
• Docket Number: WS NO 841 of 2004
• Year: 2012

Full Title: WS NO 841 of 2004; Mucksil Omonon v Susie Kaipa Kuanga and Hertz Leasemaster Limited (2012) N4686

National Court: Cannings J

Judgment Delivered: 18 May 2012

NEGLIGENCE—motor vehicle collision—whether the plaintiff proved on the balance of probabilities that the driver of other vehicle was negligent—vicarious liability—whether employer vicariously liable for negligence of employee

DAMAGES—measure of—plaintiff claims damages for: damage to vehicle; business losses; stress

A collision between the plaintiff’s truck and a utility owned by the second defendant and driven by an employee, the first defendant, resulted in damage to the truck. The plaintiff sued the defendants, claiming damages for negligence. The defendants denied liability on the ground that there was insufficient evidence that the first defendant drove negligently. The second defendant also argued that if a cause of action were established against the first defendant it was not vicariously liable as she was acting outside the scope of her employment. As to assessment of damages the defendants asserted that if they were found liable, the plaintiff should be awarded nothing due to lack of evidence.

Held:

(1) The driver of the utility was negligent and liable to the plaintiff for damages in respect of the tort of negligence. Further, she was acting within the course of her employment and that was sufficient to make the second defendant, as her employer, vicariously liable.

(2) Damages were assessed as: damage to the bus (K18,000.00) + business losses (K8,640.00) = K26,640.00.

(3) In addition the plaintiff was awarded interest of K18,903.74, making the total judgment sum K45,543.74.

Cases cited

The following cases are cited in the judgment:

Abel Kopen v The State [1988–89] PNGLR 659; Albert Areng v Gregory Babia (2008) N3469; Anis v Taksey (2011) N4468; Daniel Jifok v Kambang Holdings Ltd, trading as Lutheran Shipping (2008) N3475; Graham Mappa v ELCOM (1992) N1093; Jonathan Mangope Paraia v The State (1995) N1343; Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07; Niugini Civil & Petroleum Ltd v West New Britain Development Corporation Ltd (2008) N3292; Otto Benal Magiten v Bilding Tabai (2008) N3470; Roka Coffee Estate Pty Ltd v Largo Gerebi [1973] PNGLR 486; Mantz Wango v Pot Andakundi and The Independent State of Papua New Guinea [1992] PNGLR 45

TRIAL

This was a trial on liability and damages.

1. CANNINGS J: On Sunday 29 June 2003, there was a collision between:

• a Daihatsu Delta truck owned and driven by the plaintiff, Mucksil Omonon; and

• a Toyota Hilux double-cab utility owned by the second defendant, Hertz Leasemaster Ltd, and driven by its employee, the first defendant, Susie Kaipa Kuanga.

2. The collision occurred between 7.00 and 8.00 am at the corner of Baidal Road and the North Coast Highway near Madang Airport. The truck was being driven along the Highway out of town and the utility was being driven along Baidal Road coming from the airport. The plaintiff alleges that...