Johannes Samot v George Yame and Concrete Aggregate PNG (2020) N8256

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 17 March 2020
• Court: National Court
• Citation: (2020) N8256
• Docket Number: WS No 290 of 2015
• Year: 2020
• Judgement Number: N8256

Full Title: WS No 290 of 2015; Johannes Samot v George Yame and Concrete Aggregate PNG (2020) N8256

National Court: David, J

Judgment Delivered: 17 March 2020

N8256

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO.290 OF 2015

BETWEEN:

JOHANNES SAMOT

Plaintiff

AND:

GEORGE YAME

First Defendant

AND:

CONCRETE AGGREGATE PNG

Second Defendant

Waigani: David, J

2020: 9th, 12th & 17th March

CLAIM IN TORT – negligence – motor vehicle accident – accident involving public motor vehicle and company motor vehicle – driver of company motor vehicle convicted by District Court for driving on a public street without due care and attention contrary to Section 17(2), Motor Traffic Act – a natural inference arises that the convicted driver was negligent – evidentiary burden then cast upon defendants to rebut the inference – no rebuttal evidence adduced by defendants – company driver negligent – company vicariously liable for actions and or inactions of its driver - liability established after trial.

ASSESSMENT OF DAMAGES – general and special damages and incidentals.

Cases Cited:

Papua New Guinea Cases

Abel Kopen v The State (1988-89) PNGLR 659

Andrew Moka v MVIL (2004) SC729

Aundik Kupil v The State (1983) PNGLR 350

Catholic Diocese Wabag Board of Trustees v Enga Provincial Government (2011) N4562

Cheong Supermarket Pty Ltd v Pery Muro (1987) PNGLR 24

Director of the Independent Public Business Corporation of Papua New Guinea (2011) N4363

Fred Angoman & Papaco No.1 Limited v Independent Public Business Corporation of Papua New Guinea & Glen Blake as the Managing

Daniel Occungar v Luke Kiliso (2010) N4102

Graham Mappa v PNG Electricity Commission (1995) PNGLR 170

Harding v Teperoi Timbers Pty Ltd (1988) PNGLR 128

Helen Jimmy v Paul Rookes (2012) N4705

Joe Naguwean v The Independent State of Papua New Guinea (1992) PNGLR 367

Jonathan Mangope Paraia v The State (1995) N1343

Likui Trading Ltd v Joseph Selna (2011) N4530

Paul Perex v PNG Institute of Medical Research (2014) N5614

Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102

Peter Na’al v Michael Debege (2000) N1958

Philip Kunnga v The Independent State of Papua New Guinea (2004) N2689

Philip Nare v The State (2017) SC1584

Robert Brown v Motor Vehicle Insurance (PNG) Trust [1980] PNGLR 409

Rodao Holdings Ltd v Sogeram Development Corporation Ltd (2007) N5485

Roka Coffee Estate Pty Ltd v Gerebi (1973) PNGLR 486

Steven Naki v AGC (Pacific) Ltd (2006) N5015

Wango v Andakundi and the State (1992) PNGLR 45

William Mel v Coleman Pakalia (2005) SC790

Overseas Cases

Donoghue v Stevenson [1932] AC 562

Livingstone v Rawyards Coal Co, (1880) App Cas 25

Counsel:

Grace Makap, for the Plaintiff

Emily Dauma, for the Defendant

JUDGMENT

17th March, 2020

1. DAVID J: INTRODUCTION: This is a decision on a claim launched in the tort of negligence by writ of summons endorsed with a statement of claim filed on 19 March 2015 which was subsequently amended, after a trial. Two motor vehicles, one a Toyota Coaster bus bearing registration number P205D used as a Public Motor Vehicle (PMV bus) and owned by the plaintiff and a Hino truck bearing registration number CAY 804 (Hino truck) owned by the second defendant were involved in an accident in Port Moresby, National Capital District on 29 November 2013. The PMV bus was driven by the plaintiff’s driver namely, John Keek while the Hino truck was driven by the second defendant’s driver namely, the first defendant, George Yame. The plaintiff claims damages as a result of the accident. In the defence filed on 21 June 2016, the defendants deny liability as they aver that the first defendant was not negligent.

EVIDENCE

2. The plaintiff’s case is supported by his own affidavit which was sworn on 19 October 2015 and filed on 2 February 2016 (Exhibit A) and his oral sworn testimony. The plaintiff was subjected to a brief cross-examination.

3. An affidavit from the driver of the PMV bus namely, John Keek that was intended to be relied on as well was rejected on the objection of the defendants as he was not produced for cross-examination as requested by written notice of the defendants under Section 36 of the Evidence Act. The plaintiff had asserted by affidavit that Mr. Keek, since the accident, is now deceased having got the relevant information recently from Mr Keek’s relatives. The Court ruled that the plaintiff’s evidence was hearsay so there was no proof of death either by medical or other documentary evidence or direct and convincing oral evidence.

4. During examination in chief, two documents pertaining to ownership and registration of the PMV bus sourced from Motor Vehicles Insurance Limited were tendered and admitted into evidence without objection. The vehicle summary dated 6 June 2020 was marked as exhibit B1 and the Certificate of CTP Insurance Policy & Registration issued on 23 October 2015 was marked as exhibit B2.

5. The defendants gave notice under Section 35(1) of the Evidence Act to rely on two affidavits of Armon Kununke one filed on 17 February 2016 and the other filed on 1 November 2017. Both affidavits were objected to by the plaintiff’s counsel, Ms. Makap as the witness was not present and the plaintiff had given written notice objecting to the use of one of the affidavits under Section 35(2) of the Evidence Act. Ms. Dauma of counsel for the defendants insisted on using the affidavit that had the written objection against its use and elected not to rely on the other. In the exercise of the Court’s discretion applying the relevant principle in Philip Kunnga v The Independent State of Papua New Guinea (2004) N2689 that since the plaintiff gave notice under Section 35(2), that was something that militated against the use of the relevant affidavit, the objection was upheld.

RELIEF CLAIMED

6. In the statement of claim, the plaintiff claims the following relief:

1. General damages in the sum of K50,000.00 including stress and difficulty caused by the accident;

2. Special damages in the sum of K78,325.00 comprising; K45,000.00 for loss of expected business income; K31,235.00 for parts and cost of repair; and K2,000.00 for incidentals.

3. Interest at 8% pursuant to the Judicial Proceedings (Interest on Debts & Damages) Act; and

4. Costs of the proceedings.

SUMMARY OF PLAINTIFF’S EVIDENCE

7. The plaintiff is the registered owner of the PMV bus bearing registration number P205D: see annexures B1 and B2 of exhibit A, copies of the vehicle summary and Certificate of CTP Insurance Policy & Registration and annexure D to Exhibit A, Road Accident Report.

8. On or about 5 March 2013, the plaintiff obtained a loan of K120,000.00 from Bank of South Pacific Limited to purchase the PMV bus. Annexure A to Exhibit A is a copy of the letter of approval from the Bank of South Pacific Limited dated 5 March 2013 and Customer Loan Details and Statement of Position. Under the loan agreement, he was required to pay off the loan by fortnightly payments of K1,516.00 over a period of four years from the date of draw down.

9. He operated the PMV bus along Route 16 between Nine Mile and Gordon’s in Port Moresby. The PMV bus was driven by Mr. Keek and his boss crew was Wanpis Imbu.

10. The second defendant is the owner of the Hino truck bearing registration number CAY 804: see annexure D to Exhibit A, Road Accident Report.

11. The PMV bus driven by Mr. Keek and the Hino truck driven by the first defendant, an employee of the second defendant, were involved in an accident at a roundabout situated along the junction of Geauta Drive and the Hubert Murray Highway on 29 November 2013 at about 11:45 am: see annexure C, Accident Site Sketch and annexure D to Exhibit A, Road Accident Report.

12. The PMV bus was travelling along Geauta Drive in the direction of Gordons while the Hino truck was travelling along the Hubert Murray Highway in the direction of Erima. see annexure C, Accident Site Sketch and annexure D to Exhibit A, Road Accident Report.

13. Extensive damage was caused to the front left and forward left side of the PMV bus: see annexure C, 3 Photographs of the PMV bus and annexure D to Exhibit A, Road Accident Report.

14. Police attended the accident scene, conducted their investigation and compiled a Road Accident Report: Annexure D to Exhibit A, Road Accident Report.

15. He is not an eye-witness to the accident.

16. The first defendant was charged under Section 17(2) of the Motor Traffic Act for driving upon a public street without due care and attention.

17. On 3 December 2013, the Waigani Traffic District Court found him guilty as charged and fined him K300.00. Annexure F to exhibit A is a copy of the order of the Waigani Traffic District Court dated 12 February 2014.

18. Written requests from the plaintiff himself and his lawyers, Thomas & Co. and to the second defendant and its lawyers to settle the plaintiff’s claim amicably out of court were not been successful. Annexure E are copies of relevant letters to the second defendant and its lawyers from the plaintiff himself and his lawyers. The plaintiff also engaged Greg Manda Lawyers to pursue his claim to a...