Ga Kumiye & 5 Others v Independent State of Papua New Guinea and the National Road Safety Council and the National Roads Authority and the Secretary, Department of Works (2018) SC1693

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu & Pitpit JJ
• Judgment Date: 27 June 2018
• Court: Supreme Court
• Citation: (2018) SC1693
• Docket Number: SCA No 99 of 2014
• Year: 2018
• Judgement Number: SC1693

Full Title: SCA No 99 of 2014; Ga Kumiye & 5 Others v Independent State of Papua New Guinea and the National Road Safety Council and the National Roads Authority and the Secretary, Department of Works (2018) SC1693

Supreme Court: Gavara-Nanu & Pitpit JJ

Judgment Delivered: 27 June 2018

SC1693

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

SCA No. 99 OF 2014

BETWEEN:

GA KUMIYE & 5 OTHERS

Appellants

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

First Respondent

AND:

THE NATIONAL ROAD SAFETY COUNCIL

Second Respondent

AND:

THE NATIONAL ROADS AUTHORITY

Third Respondent

AND:

THE SECRETARY – DEPARTMENT OF WORKS

Fourth Respondent

WAIGANI: Gavara-Nanu & Pitpit JJ.

2016: 1st September

2018: 27th June

APPEAL – Damages – Statement of Claim – Pleadings – Reasonable cause of action – Notice of Intention to Defend and Defence not filed – Application for default judgment - Pleadings not disclosing a reasonable cause of action – Application for default judgment refused.

Cases Cited:

Jack Pinda v. Sam Inguba (2012) SC1181

Lambu v. Torato (2008) SC953

Rupundi Maku and Ors v. Steven Maliwolo and Ors and The State (2011) SC1170

The Government of Papua New Guinea and Richard Harold Davis v. Stanley Baker [1977] PNGLR 388; SC123

Thomas Andale v. Michael Suviro (2017) N6971

Counsel:

P. Kopunye for the appellants

T. Tanuvasa for the first, second and fourth respondents

M. Maitang for the third respondent.

27th June 2018

1. BY THE COURT: The appellants appeal the whole of the decision of Poole J, given on 19 June, 2014, in proceeding WS No. 300 of 2012 between Ga Kumiye and 5 Others v. The Independent State of Papua New Guinea and 3 Others, in Mount Hagen National Court.

2. This judgment is of only two remaining members of the bench because the third member of the bench has since the hearing of this appeal retired. The two remaining members of the bench have put the requirements of s. 3 (1) of the Supreme Court Act, Chapter 37, to the parties and they have agreed for the remaining two members of the bench to give the judgment of the Court.

3. The appeal lies without leave as the decision dismissing the entire proceeding was final.

4. The grounds of appeal are:

1. The learned judge erred in law and in fact when he ruled that

there was no cause of action disclosed in the plaintiffs’ amended statement of claim when in fact the cause of action was based on common law negligence as well a breach of statutory duties imposed on the defendants by the National Road Safety Councils Act of 1997, the National Roads Authority Act of 2003, and the Road Maintenance Act of 1971.

2. The learned judge after correctly finding that the defendants had defaulted in filing their defences within the legally prescribed time periods; wrongly ruled that the statement of claim did not disclose a reasonable cause of action; and thus ultimately erred in fact and in law in refusing to grant default judgement against the first, second and third defendants.

3. The learned judge erred in law in making a finding at the interlocutory stage, that the defendants did not owe a duty of care to the plaintiffs; when the issue of duty of care was substantive in nature which could only be properly determined upon evidence given at trial.

4. The learned judge erred in law and in fact when he made a finding on evidence or lack thereof to prove duty of care; such ruling was made prematurely and resulted in substantial miscarriage of justice being done to the plaintiffs.

5. The learned judge erred in law when it expressed at the pleading stage, a concluded view on the admissibility and weight of the evidence contained in the affidavits of the plaintiffs.

6. The learned judge erred in law when he failed to consider that the common law consistent with the Constitution on the duty of care applied specifically to the duty of policemen and could not automatically apply uniformly to the defendants in this action whose functions and duties were specifically outlined in the National Road Safety Councils Act of 1997, the National Roads Authority Act of 2003, and the Road Maintenance Act of 1971; and thus could only be safely determined after a full trial.

7. The learned judge erred in law in ruling that the plaintiffs claim was altogether unarguable that it ought to be summarily dismissed.

Orders sought:

1. In lieu of the decision appealed from the appellants pray for

orders that:

a) The appeal be allowed.

b) The judgment of his Honour Goodwin Poole J dated 19th of June 2014, dismissing the proceedings in its entirety as disclosing no cause of action be set aside.

c) Judgement in default of defences be entered against the respondents in favour of the appellants.

d) The matter be remitted to the Mt Hagen National Court Listings for trial on assessment of all damages as is pleaded in the statement of claim.

e) Appellants legal and incidental costs of this proceedings and the National Court be paid by the respondents, to be taxed if not agreed.

f) Any other orders that this Honourable Court deems fit with liberty to apply.

Dated this 28th day of July, 2014

(Signed)

__________________________

Kopunye Lawyers

By its employed Lawyer

AGATHA INIA

Lawyers for the Appellants

Background Facts

5. The principal appellant is a widow, her husband having been killed in a motor vehicle accident which occurred on 12 January, 2010, along Markham road of the Highlands Highway in Morobe Province. The accident was caused by a head-on collision between two 25 seater PMV buses which were travelling in opposite directions. In the accident, fifty two people died, only a few survived.

6. The appellants lodged a claim against the Motor Vehicles Insurance Limited (MVIL) and received K28,595.00. In proceedings WS No. 300 of 2012, they claimed damages against the State and its agents. The appellants’ claims were based on negligence. They claimed the poor road condition resulting from the respondents’ failure to maintain the road was the real cause of the accident.

7. It is not disputed that the two PMV buses collided when one of the buses tried to avoid potholes. Both buses were travelling at high speed. The appellants claimed the respondents had a common law duty to main the roads in good condition. The appellants claimed the respondents did not maintain the road in good condition, thus they were liable to pay damages to the appellants for their losses.

8. There is undisputed evidence that immediately before the collision, the two PMV buses were travelling at high speed.

9. The appellants placed much reliance on newspaper reports on the accident. Various cuttings of those reports were adduced in evidence. We give little, if any weight to the reports because apart from the images of the accident, they have no evidentiary value in regard to the cause of action.

10. The police report on the accident confirmed that the two PMV buses were travelling at “high speed”. The PMV bus travelling out of Lae tried to avoid potholes and went onto the wrong side of the road and collided head-on with the PMV bus travelling into Lae.

11. On 15 June, 2012, the appellants filed a notice of motion in WS No. 300 of 2012, seeking default judgment against the respondents for damages to be assessed after the respondents failed to file their Notice of Intention to Defend and Defence within the required time. The motion was moved on 14 March, 2014.

12. The learned trial judge held that default by the respondents to comply with the Rules relating to the filing of a Notice of Intention to Defend and a Defence may have been made out by the appellants but that was not the end of the matter. His Honour said the Court should not blindly enter a default judgment because the Court was still obligated to look at the pleadings and decide whether a valid judgement could be entered against the respondents.

13. In the Statement of Claim the appellants pleaded that the drivers of the PMV buses collided when trying to avoid potholes. Thus, they claimed the poor road condition was to be blamed for the accident. They claimed the drivers of the PMV buses were not responsible for the accident, thus they could not be held liable for their losses.

14. The learned trial judge after considering the pleadings said:

“The plaintiffs’ case proceeds on the basis, apparently, that the accident was caused by the state of the road, not by the manner in which the drivers conducted their vehicles on the road, and, rather than making a claim against the owners of the vehicles as vicariously liable for the manner in which their servants or agents drove the vehicles, the Plaintiffs seeks (sic.) to make the State, and various instrumentalities, vicariously liable because the road contained potholes which one driver decided would avoid by travelling on the wrong side of the road in the face of on-coming traffic. However poor state of the road, the law requires drivers to drive safely and take into account the conditions prevailing at that time; it does not relieve them of that...