Jack Walom Kanit trading as Citi-Link Taxi Services v Damge Sakias and National Airports Corporation Limited (2019) N8130

• Jurisdiction: Papua New Guinea
• Judge: Susame, AJ
• Judgment Date: 11 November 2019
• Court: National Court
• Citation: (2019) N8130
• Docket Number: WS No 905 of 2013
• Year: 2019
• Judgement Number: N8130

Full Title: WS No 905 of 2013; Jack Walom Kanit trading as Citi-Link Taxi Services v Damge Sakias and National Airports Corporation Limited (2019) N8130

National Court: Susame, AJ

Judgment Delivered: 11 November 2019

N8130

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 905 of 2013

BETWEEN:

JACK WALOM KANIT trading as CITI-LINK TAXI SERVICES

Plaintiff

AND:

DAMGE SAKIAS

First Defendant

AND:

NATIONAL AIRPORTS CORPORATION LIMITED

Second Defendant

Kerevat: Susame, AJ

2019: 19th September, 14th, 25th October, 11th November

CIVIL SUIT– Claim under law of Negligence- Motor Vehicle Accident- Claim for damages to motor vehicle

CIVIL SUIT– Principle of Res Judicata – whether issue on action being time barred been judicially determined in the earlier proceeding – inclusion of first defendant as a party to proceeding by amendment on 04 August 2019.- whether that amendment gives rise to fresh proceeding being commenced - s16 Frauds and Limitation Act.

CIVIL SUIT–Negligence - elements to establish in an action for negligence –whether first defendant drove negligently- vicarious liability- employee-employer relationship - Whether second defendant caused the accident while in the discharged of his employment duties

Cases Cited:

Andrew Kewa v Johnny Lus [2007] PGNC 3; WS 415 of 2003 (14 March 2007)

Daiva&OmeOme Forests Ltd v Pukali & Anor, Ome Ome Forest Ltd v Ray Cheon & Ors (2002) N2259

Huaimbuke v Baugen (2004) N2589

Kolta Development Pty Ltd v PNG Defence Force [1997] PNGLR 585

More v State [1998] PGNC 13; N1736

Roka Coffee Estate Pty Ltd v Largo Gerebi [1973] PNGLR 486

State v Kofewei [1987] PNGLR 5

Telikom PNG Ltd v ICCC (2008) SC906

Titi Christian v Rabbie Namaliu (1996) OS N0.02 of 1995

Counsels:

Mr. Robert Asa, for the Plaintiff

Mr. C. Kaki, for the Defendant

DECISION

11th November, 2019

1. SUSAME AJ: Plaintiff commenced proceedings on 21 August 2013 seeking damages for damage caused to his motor vehicle in a road accident on or about 24 November 2012 and for loss of business.

Evidence

2. Trial was by affidavit evidence. Plaintiff relied affidavit of:

· Jack Walom Kanit sworn on 18 June 2018 (Document No. 44)

· Dotty Penias sworn on 18 June 2018 (Document 45)

· Steven Liu sworn on 19 June 2018 (Document 46)

· Salome Liu sworn on 19 June 2018 (Document 47)

· Senior Constable Otto Vue sworn on 8 March 2019 (Document 57)

3. Defendants relied on affidavits of Damge Sakias dated 10 September 2019 (Document 79) and Lazarus Tuam sworn on 20 July 2019 (Document 49)

4. Parties decided against challenging each other’s evidence and have deponents appear for examination and cross –examination. So all affidavits were submitted into evidence by consent.

Facts

5. The following facts are drawn from the evidence and accepted by the court. Plaintiff operates a taxi service business trading under the name Citi- Link Taxi Services. The vehicle the first defendant crashed into was a Toyota Camry Sedan, bearing registration N0. T -4687. It was driven by a Penias Dotty along the Tokua Kokopo Road on 24 November 2012 when it was involved in an accident with the defendant’s vehicle, a yellow utility Ford bearing registration N0. BCX.607. Vehicle was driven by the first defendant, Damge Sakias. First defendant is an employee of the second Defendant, National Airport Corporation Ltd.

Issues

6. During trial a number of issues arose and arguments heard: That action was statute barred, that issue of time limitation has been judicially decided in the earlier proceedings to bring in operation defence of res judicata, that first defendant was never negligent, that first defendant was never in the course of execution of his duty to hold the second defendant vicariously liable as the employer.

Principle of Res Judicata

7. This subject was put at issue during arguments on the issue of action being time barred or statute barred. It was argued by the defence the issue had not been judicially determined when matter came before Kassman J on 8 April 2019. Defendant was not precluded from arguing the issue of action being time barred again for determination by this court.

Whether action is statute barred

8. It was argued action is statute barred pursuant to s16 (1) of the Frauds and Limitation Act 1988 which prescribes a mandatory 6 years’ time period to commence an action from the date cause of action arose. The rational of that argument was that addition of first defendant as a party to the proceedings by amendment on 04 August 2019 gave rise to a fresh action being filed 7 years after cause of action arose on 14 August 2012.

9. Plaintiff’s argument as I understand is that principle of res judicata is applicable in this case because issue on action being statue barred had judicial been determination by Kassman J and cannot be revisited again.

10. Action had commenced at the date of filing on 21 August 2013 after the cause of action arose on 24 November 2012. Inclusion of first defendant as a party to the proceeding on 04 August 2019 cannot be regarded as commencement of fresh proceeding but part of the proceeding which was already on foot.

11. Reference was made to Supreme Court decisions in Telikom PNG Ltd v ICCC (2008) SC906 and Titi Christian v Rabbie Namaliu (1996) OS N0.02 of 1995 which defined and reinforced the principle of res judicata.

12. I have had the benefit of transcript of record of proceeding of 08 April 2019. I have read Kassman J’s ex tempore ruling which commences at page 22 of the transcript.

13. Being unsatisfied with defendant’s argument on this particular issue Kassman J ruled, “the naming of the party is no tone and the same as the commencement of a fresh proceedings, …………that addition of Damge Sakias did not give rise to a new cause of action.: ( see page 25 of the decision from paragraph 10 onwards)

I adopt and endorsed the passage of Amet CJ’s judgment. His Honour adopted the definition of the principle from the text by Spencer Bower and Turner. That is the correct position of the law and will not expound further on that.

Finding

14. Firstly, I am inclined to accept plaintiff’s argument more persuading. I accept as a fact issue of action being time barred or statute barred has been adequately argued and determined by court in the earlier proceeding on 8 April 2019. I agree with Kassman J’s ruling. I need not elaborate further. Common law defence of res judicata is applicable. Defendant is precluded or estopped from taking a second bite of the apple so to speak, on the same issue which had been judicially considered and decided by a court of competent jurisdiction.

15. Secondly, court had the power on its own motion to make the amendments to include naming of Damge Sakias as the party to the proceedings by authority of O8 R50 of National Court Rules. At paragraphs 7 (a) & (b) and 8 of the pleadings in the statement of claim he was mentioned as the driver and employee of the second defendant but never named as co-defendant when action was filed.That was necessary for the court to decide liability. It is unlikely the amendment substantially prejudiced the defendant’s case in any material way.

16. Thirdly, filing of a suit and adding a party to the proceeding that had already commenced are distinct and not the same thing. In that regard adding of Damge Sakias who committed the tort as a co-defendant in the proceeding does not and cannot give rise to a fresh proceeding being commenced. Cause of action arose on 24 November 2012. Proceeding had commenced on the date of its filing on 21 August 2013 well within the six years statutory period stipulated in s16 of Frauds and Limitation Act. Amendment to include the first defendant on 04 August 2019 was made on one and the same proceeding that was on foot and still progressing.

17. The end result of the discussions is that defendant’s argument must fail. I find that action is competent and not time barred.

Law of Negligence

18. This is an action in the law of negligence. First, some discussions on the law of negligence. No discussions were heard from the defence counsel except from counsel representing the plaintiff. In his discussions he made reference to the judgment of Manuhu J in Andrew Kewa v Johnny Lus [2007] PGNC 3; WS 415 of 2003 (14 March 2007)

19. I fully endorse counsel’s discussions and Manuhu J’s discussions on duty of drivers and consequences thereof for failure to observe that duty. Let me expound further. To succeed in an action for negligence these elements must be proved:

· Duty of care. Defendant owed a duty of care to the plaintiff

· Breach of Duty. Defendant breached that duty in failing to drive safely or with care

· Causation. Breach of duty by the defendant actually caused the injury or damage.

· Damages

20. Management of vehicles with prudence or with due care and attention to avoid accidents while being driven on public roads is the sole responsibility or duty of all drivers. That duty is expected of them by law and is owed to other road users. Failure to observe that duty will attract criminal or civil liability.

21. What amounts...