Helen Jimmy v Paul Rookes (2012) N4705

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 June 2012
• Docket Number: WS NO 1082 OF 2010
• Citation: (2012) N4705
• Court: National Court
• Year: 2012
• Judgement Number: N4705

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

National Court: Cannings J

Judgment Delivered: 25 June 2012

N4705

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1082 OF 2010

HELEN JIMMY

Plaintiff

V

PAUL ROOKES

Defendant

Madang: Cannings J

2011: 19 December,

2012: 10 February, 25 June

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

Aundik Kupil v The State [1983] PNGLR 350

Barclays Bank v Cole [1967] 2 WLR 166

Brian John Lewis v The State [1980] PNGLR 219

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

Omonon v Kuanga(2012) N4686

Otto Benal Magiten v Bilding Tabai (2008) N3470

Pastor James Molu v Dokta Pena (2009) N3817

Peter Wanis v Fred Sikiot and The State (1995) N1350

PNG Institute of Medical Research v PNGBC (1999) N1934

Rabaul Shipping Limited v Peter Aisi (2006) N3173

Re Fisherman’s Island [1979] PNGLR 202

Regina 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 and The State (2010) N4090

Wamena Trading Limited v Civil Aviation Authority (2006) N3058

WorkCover Authority of NSW v Placer (PNG) Exploration Limited (2006) N3003

Yange Langan v The State (1995) N1369

TRIAL

This was a trial on liability for negligence.

Counsel

B W Meten, for the plaintiff

Y Wadau, for the defendant

25 January, 2012

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 was P933W. The plaintiff has failed to adduce the obvious document that would prove ownership: a certificate of registration issued under the Motor Traffic Act. In many cases the National Court has highlighted the relevance of a certificate to the question of ownership: Garo Kei v MVIT [1992] PNGLR 195, Peter Wanis v Fred Sikiot and The State (1995) N1350, Sembi Paikel v Kaiwe Pty Ltd [1997] PNGLR 603, Joe Danga v MVIT (1997) N1665, Eastern Highlands Provincial Government v Aita Ivarato (1999) N1893, Andrew Nagari v Rural Development Bank (2007) N3295, Pastor James Molu v Dokta Pena (2009) N3817, Thomas Paraka v Thomas Upaiga and The State (2010) N4090.

4. The certificate of registration is the critical document and it is surprising that it has not been adduced in evidence. Proof of ownership is an essential part of the plaintiff’s case. She cannot establish liability unless she proves that she owned the bus. However, though all of the cases just listed demonstrate the significance of a certificate of registration none of them say that without a certificate of registration a party cannot prove ownership of a motor vehicle; and there is no statutory provision that says that either. The court is obliged to weigh and assess all the evidence when determining the question of ownership. Here the plaintiff has given sworn testimony that she is the owner of the vehicle. The defendant has adduced no evidence to the contrary. (Which is also surprising. It would seem to be a simple investigation to undertake, to check the registration of a motor vehicle.) The approach to the task of determining disputed facts in such situations was explained by Wilson J in Re Fisherman’s Island [1979] PNGLR 202:

Where there is evidence, whether oral or otherwise tending to prove one side of an issue and there is no evidence on the other side to contradict it, then the judicial officer is bound to accept it unless the evidence is in itself so incredible and unreasonable that no reasonable man could accept it. If for any reason which recommends itself to the mind of the judicial officer dealing with a matter, he thinks it not fit to accept the evidence of the only witness before the court or judicial tribunal and he is founding his decision on his disbelief of that witness, he is bound to disclose it.

5. The same principle was outlined by the Full Court of the pre-Independence Supreme Court (Frost ACJ, Clarkson J, O'Loghlen AJ) in Regina v Holland [1974] PNGLR 7 and more recently by Woods J in Alphonse Kopi v The State [1994] PNGLR 475 and by Lay J in Rabaul Shipping Limited v Peter Aisi (2006) N3173.

6. Here, there is evidence in the plaintiff’s affidavit, which was admitted into evidence without objection, that she was and is the owner of the bus. There is no evidence to contract it. So I am bound to accept the plaintiff’s evidence unless it is so incredible or unreasonable that no reasonable person could accept it. Is what the plaintiff deposes to so incredible or unreasonable as to be objectively unacceptable? No. There is evidence in the defendant’s affidavit that the plaintiff has been pursuing him over this matter since the date of the collision. She has been acting as if she were the owner. The defendant has, it appears, a suspicion that she is not the owner, and well he might, but that does not mean that her evidence of ownership is so unreasonable or incredible that it would be not accepted by a reasonable person. I have been provided with no reason to relieve me of the obligation to accept the plaintiff’s evidence. I conclude that the plaintiff has proven on the balance of probabilities that she is the owner of the bus.

2 HAS THE PLAINTIFF...