Patrick Kima v Philip Kont

• Jurisdiction: Papua New Guinea
• Citation: (2015) N5903
• Date: 18 March 2015
• Court: National Court
• Year: 2015

Full : WS NO 741 OF 2013; Patrick Kima v Philip Kont and Christopher Papiali (2015) N5903

National Court: Cannings J

Judgment Delivered: 18 March 2015

NEGLIGENCE—motor vehicle collision—whether the plaintiff proved that the driver of other vehicle was negligent—relevance of driver’s conviction for traffic offence—contributory negligence—vicarious liability—whether second defendant vicariously liable for negligence of first defendant.

A collision between a bus owned and driven by the plaintiff and a bus owned by the second defendant and driven by the first defendant, resulted in damage to the plaintiff’s bus. A police investigation put the first defendant at fault. He was charged and convicted of a traffic offence. The plaintiff commenced proceedings against both defendants, claiming damages for negligence, then discontinued the case against the first defendant and pursued liability only against the second defendant. The second defendant denied liability on the ground that there was insufficient evidence that the first defendant drove negligently. He also argued that the plaintiff, who was driving his bus, was guilty of contributory negligence, and that if a cause of action were established against the first defendant, he (the second defendant) was not vicariously liable as the plaintiff had not proven the elements of vicarious liability. A trial was conducted on the issue of liability.

Held:

(1) The natural inference arising from a conviction for a traffic offence relating to a motor vehicle collision is that the person convicted was negligent. No evidence was adduced to rebut that inference. The first defendant was negligent and the plaintiff established a cause of action against him.

(2) To succeed with a defence of contributory negligence a defendant must plead it (National Court Rules, Order 8, Rule 15) and discharge the onus of proving it. The second defendant neither pleaded it nor adduced any evidence in support of it, so the defence failed.

(3) For an employer to be vicariously liable for the tortious conduct of another person, three elements must be proven: (a) an employer-employee relationship existed, (b) the employee committed a tort, (c) the tort was committed in the course of the...