Patrick Kima v Philip Kont

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 18 March 2015
• Citation: (2015) N5903
• Court: National Court
• Year: 2015
• Judgement Number: N5903

Full : WS NO 741 OF 2013; Patrick Kima v Philip Kont and Christopher Papiali (2015) N5903

National Court: Cannings J

Judgment Delivered: 18 March 2015

N5903

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 741 OF 2013

PATRICK KIMA

Plaintiff

V

PHILIP KONT

First Defendant

CHRISTOPHER PAPIALI

Second Defendant

Madang: Cannings J

2014: 13 June, 18 July, 13 December,

2015: 18 March

NEGLIGENCE – motor vehicle collision – whether the plaintiff proved that the driver of other vehicle was negligent – relevance of driver’s conviction for traffic offence – contributory negligence – vicarious liability – whether second defendant vicariously liable for negligence of first defendant.

A collision between a bus owned and driven by the plaintiff and a bus owned by the second defendant and driven by the first defendant, resulted in damage to the plaintiff’s bus. A police investigation put the first defendant at fault. He was charged and convicted of a traffic offence. The plaintiff commenced proceedings against both defendants, claiming damages for negligence, then discontinued the case against the first defendant and pursued liability only against the second defendant. The second defendant denied liability on the ground that there was insufficient evidence that the first defendant drove negligently. He also argued that the plaintiff, who was driving his bus, was guilty of contributory negligence, and that if a cause of action were established against the first defendant, he (the second defendant) was not vicariously liable as the plaintiff had not proven the elements of vicarious liability. A trial was conducted on the issue of liability.

Held:

(1) The natural inference arising from a conviction for a traffic offence relating to a motor vehicle collision is that the person convicted was negligent. No evidence was adduced to rebut that inference. The first defendant was negligent and the plaintiff established a cause of action against him.

(2) To succeed with a defence of contributory negligence a defendant must plead it (National Court Rules, Order 8, Rule 15) and discharge the onus of proving it. The second defendant neither pleaded it nor adduced any evidence in support of it, so the defence failed.

(3) For an employer to be vicariously liable for the tortious conduct of another person, three elements must be proven: (a) an employer-employee relationship existed, (b) the employee committed a tort, (c) the tort was committed in the course of the employee’s employment. Here, (a) was admitted in the pleadings, (b) was expressly proven at the trial, (c) was proven by reasonable inference drawn from the evidence and the absence of any evidence in rebuttal.

(4) The second defendant was vicariously liable for the negligence of the first defendant.

Cases cited

The following cases are cited in the judgment:

Andrew Moka v MVIL (2004) SC729

Anis v Taksey (2011) N4468

Brown v MVIT [1980] PNGLR 409

Charles Klakal Bafor v Samuel Kilane (2013) N5444

Daniel Jifok v Kambang Holdings Ltd (2008) N3475

Daniel Occungar v Luke Kiliso (2010) N4102

Desmond Guasilu v Enga Provincial Government (2012) N4774

Helen Jimmy v Paul Rookes (2012) N4705

Helen Jimmy v Paul Rookes (2013) N5360

Kuk Kuli v The State (2004) N2592)

Omonon v Kuanga (2012) N4686

Otto Benal Magiten v Bilding Tabai (2008) N3470

PNG Institute of Medical Research v PNGBC (1999) N1934

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

Wango v Andakundi and The State [1992] PNGLR 45

TRIAL

This was a trial on liability for negligence.

Counsel

B Tabai, for the plaintiff

D F Wa’au, for the second defendant

18th March, 2015

1. CANNINGS J: On Tuesday 19 April 2011 there was a collision between:

· a 15-seater Toyota Hiace bus, registration No P0448-C owned and driven by the plaintiff, Patrick Kima; and

· a 15-seater Toyota Hiace bus, registration No P0940-E owned by the second defendant, Christopher Papiali, and driven by the first defendant, Philip Kont.

2. The collision occurred around 7.30 am on the North Coast Highway on the Madang town side of the Bilia Maus Rot junction. The two buses were heading into town, the plaintiff’s bus was in the front, and the second defendant’s bus was behind. Just past the junction, the plaintiff’s bus slowed to allow a dog to cross the road. The second defendant’s bus bumped into the back of the plaintiff’s bus. The back of the plaintiff’s bus was damaged. No one was physically injured. The plaintiff commenced proceedings against both defendants, pleading that the first defendant drove negligently by failing to keep a proper look out, failing to have proper control of the vehicle and driving at excessive speed and that both defendants were liable; he pleaded that the second defendant is vicariously liable as the first defendant was his employee and the first defendant committed the tort of negligence in the course of his employment. The plaintiff seeks damages for the damage to the bus and business losses. He later discontinued proceedings against the first defendant.

3. The second defendant denies liability. He argues that in fact it was the plaintiff who was negligent as the evidence suggests that the dog was running across the road, not standing in the middle, so the plaintiff must have been driving too fast. If it is found that the first defendant was negligent, the plaintiff should at least be found guilty of contributory negligence. Whatever the Court’s findings on the degree of negligence of the first defendant, he argues that he should not be found vicariously liable. He filed a defence pleading that he is “liable for his employees only when they are under his instructions” and that “he did not instruct the first defendant to cause the accident”. A trial has been held on the issue of liability of the second defendant. Damages will be assessed later if the plaintiff succeeds. The issues are:

1 Has the plaintiff proven negligence against the first defendant?

2 Has contributory negligence been proven?

3 Is the second defendant vicariously liable?

4 What orders should the Court make?

1 HAS THE PLAINTIFF PROVEN NEGLIGENCE AGAINST THE FIRST DEFENDANT?

4. The critical facts for the purposes of determining whether the first defendant is liable in negligence are that a police traffic accident investigation put the first defendant at fault. He was charged with an offence under Section 17(2) of the Motor Traffic Act for driving a motor vehicle on a public street without reasonable consideration for other road users. He was convicted of that offence by the Madang District Court on 13 May 2011 and fined K100.00, in default, two months imprisonment. That does not necessarily mean that the plaintiff has proven a cause of action in negligence against him but it gives rise to an inference that the person convicted was negligent (Anis v Taksey (2011) N4468, Omonon v Kuanga (2012) N4686). An evidentiary burden is cast upon the defendant to adduce evidence to rebut that inference. The legal burden of proving the case does not shift from the plaintiff but common sense dictates that the defendant needs to bring evidence to throw doubt on the correctness of the conviction (Helen Jimmy v Paul Rookes (2012) N4705).

5. The defendant has adduced no evidence to rebut the natural inference arising from such a conviction, that the first defendant was negligent. That inference is reinforced by the evidence of the plaintiff, his wife Jossie Kima (his off-sider in his bus) and a pedestrian bystander Donald Masek who witnessed the collision and considered that it was caused by the second defendant speeding and not concentrating on the road.

6. I find that the plaintiff has established all elements of the tort of negligence (Otto Benal Magiten v Bilding Tabai (2008) N3470). The first defendant owed a duty of care to other road users such as the plaintiff. He drove the second defendant’s bus negligently and caused the collision, which led to the injuries (damage to the bus and business losses) which are not of a type that are too remote. Liability is therefore established against the first defendant.

2 HAS CONTRIBUTORY NEGLIGENCE BEEN PROVEN?

7. Contributory negligence is a partial defence in a negligence action. It applies where a defendant proves that a plaintiff...