Helen Jimmy v Paul Rookes (2012) N4705

• Jurisdiction: Papua New Guinea
• Date: 25 June 2012
• Citation: (2012) N4705
• Docket Number: WS NO 1082 of 2010
• Court: National Court
• Year: 2012

Full Title: WS NO 1082 of 2010; Helen Jimmy v Paul Rookes (2012) N4705

National Court: Cannings J

Judgment Delivered: 25 June 2012

NEGLIGENCE—motor vehicle collision—proof of ownership of vehicle—whether plaintiff proved that driver of other vehicle was negligent—relevance of defendant’s conviction for traffic offence—defence of contributory negligence.

A collision between a bus allegedly owned by the plaintiff and a utility driven by the defendant resulted in damage to the bus. The defendant was convicted in the District Court of driving without due care and attention. The plaintiff then sued the defendant, claiming damages for negligence. The defendant denied liability on two grounds: that the plaintiff failed to prove that she owned the bus and that the plaintiff failed to prove the defendant drove negligently. The defendant also argued that if a cause of action were established against him the driver of the bus was guilty of contributory negligence. A trial was conducted on the issue of liability.

Held:

(1) Though the plaintiff failed to adduce a certificate of registration, which would normally be sufficient evidence of ownership, she deposed on oath that she was the owner and the defendant failed to adduce any evidence to the contrary. The plaintiff proved ownership.

(2) The natural inference arising from a conviction for a traffic offence relating to a motor vehicle collision is that the person convicted was negligent. Though the defendant adduced evidence asserting that he was not negligent it was insufficient to rebut the inference that he was. The plaintiff established a cause of action in the tort of negligence.

(3) The defendant proved on the balance of probabilities that the driver of the bus was guilty of contributory negligence.

(4) Liability was established subject to a finding of 25% contributory negligence. The question of assessment of damages was referred to mediation.

Cases cited

The following cases are cited in the judgment:

Alphonse Kopi v The State [1994] PNGLR 475; Andrew Moka v MVIL (2004) SC729; Andrew Nagari v Rural Development Bank (2007) N3295; Anis v Taksey (2011) N4468; Aundak Kupil v The State [1983] PNGLR 350; Barclays Bank v Cole [1967] 2 WLR 166; Brian John Lewis v The State [1980] PNGLR 219; Robert Brown v MVIT [1980] PNGLR 409; Eastern Highlands Provincial Government v Aita Ivarato (1999) N1893; Garo Kei v MVIT [1992] PNGLR 195; Goody v Oldham’s Press Ltd [1967] 1 QB 333; Hollington v Hewthorn [1943] 1 KB 587; Joe Danga v MVIT (1997) N1665; John Kaina v The State [1990] PNGLR 292; McIlkenny v Chief Constable [1980] 2 All ER 227; Mucksil Omonon v Susie Kaipa Kuanga (2012) N4686; Otto Benal Magiten v Bilding Tabai (2008) N3470; Pastor James Molu v Dokta Pena (2009) N3817; Peter Wanis v Fred Sikiot (1995) N1350; PNG Institute of Medical Research v PNGBC (1999) N1934; Rabaul Shipping Ltd v Peter Aisi (2006) N3173; Re Fisherman's Island [1979] PNGLR 202; R v Holland [1974] PNGLR 7; Sembi Paikel v Kaiwe Pty Ltd [1997] PNGLR 603; Stupple v Royal Insurance Co Ltd [1971] 1 QB 50; Thomas Paraka v Thomas Upaiga (2010) N4090; Wamena Trading v Civil Aviation Authority (2006) N3058; WorkCover Authority of NSW v Placer (PNG) Exploration Ltd (2006) N3003; Yange Lagan v The State (1995) N1369

TRIAL

This was a trial on liability for negligence.

1. CANNINGS J: On Thursday 13 January 2005 there was a collision between:

• a Toyota Hiace bus allegedly owned by the plaintiff, Helen Jimmy, and driven by Jack Ururu; and

• a Toyota Landcruiser utility driven by the defendant, Paul Rookes.

2. The collision occurred at 10.30 pm on Modilon Road, Redscar, Madang. The plaintiff alleges that the defendant drove negligently and caused the collision, as a result of which her bus, which was used as a Public Motor Vehicle, was damaged and off the road for a considerable period. She has brought a negligence action against the defendant, claiming damages of K45,019.00 for damage to the bus, damages for loss of income, special damages and general damages for pain and suffering. The defendant denies liability on two grounds: that the plaintiff failed to prove that she owned the bus and that the plaintiff failed to prove that he drove negligently. The defendant also argues that in the event that a cause of action is established against him the driver of the bus was guilty of contributory negligence and that the amount of any damages assessed against him should be reduced accordingly. A trial was conducted on the issue of liability, including contributory negligence. The issues are:

1 has the plaintiff proven that she owned the bus? and

2 has the plaintiff proven negligence? and

3 has the defendant proven contributory negligence?

4 what orders should the court make?

1 HAS THE PLAINTIFF PROVEN THAT SHE OWNED THE BUS?

3. This has become an issue as the plaintiff has not adduced any direct evidence that she owned the bus other than a statement in her affidavit that she was the owner and the registration number...