Sparks Tambia v Kiko Petrus and Others

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Dowa J
• Judgment Date: 13 February 2025
• Neutral Citation: N11155
• Citation: N11155,
• Docket Number: WS NO. 658 OF 2020
• Date: 13 February 2025
• Counsel: T. Berem for the plaintiff,W. Kume for the defendants,Counsel

N11155

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 658 OF 2020

Between:

Sparks Tambia

Plaintiff/Cross-Defendant

v.

Kiko Petrus

First Defendant/Cross-Claimant

and

Petrus David

Second Defendant/Cross-Claimant

LAE: Dowa J

2, 3 June 2022; 13 February 2025

NEGLIGENCE — motor vehicle collision — claim for damages-whether certificate of registration required for proving ownership-whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent — tort of negligence.

CROSS CLAIM — Whether pleadings on ownership consistent with evidence-whether cross-defendant was negligent — Where there are two versions in evidence, it is important to assess and analyse the credibility of the witnesses and their evidence and point out any aspect of the performance of each witness before accepting the evidence. Both parties having failed to prove their respective claims-proceedings dismissed.

Cases cited

Yooken Paklin v The State (2001) N2212

Daniel Occungar v Luke Kiliso (2010) N4102

John Kul v The State (2010) N3898

Eton Pakui v The State (2006) N2977

Titus Banga v Madang Port Services Ltd (2011) N4302

Allen Anis v Dobon Taksey (2011) N4468

Kay Pure v Tonnesi Ewebi (2021) N9013

Kei v MVIT (1992) PNGLR 195

Paikel v Kaiwe Pty Ltd (1997) PNGLR 603

Danga v MVIT (1997) N1665

Nagari v Rural Development Bank (2007) N3295

Molu v Pena (2009) N3817

Paraka v Upaiga & Another (2010) N4090

Waranaka v Dusava (2009) SC940

Helen Jimmy v Paul Rookes (2012) N4705

Counsel

T. Berem for the plaintiff

W. Kume for the defendants

Lawyer for the plaintiff: Berem Lawyers

Lawyer for the defendants: George Kaore Lawyers

DECISION

1. Dowa J: This is a decision on both issues of liability and damages.

2. The Plaintiff claims damages against the Defendants for the loss of his motor vehicle a Toyota Land Cruiser, 10-Seater Registration No. LBO 225 extensively damaged in a head-on collision involving the second Defendants' vehicle, an Isuzu Dyna Truck Registration No. JAC 476.

3. The first Defendant makes a crossclaim against the Plaintiff seeking damage done to his vehicle, shifting the blame on the Plaintiff.

4. The road accident took place at Yaubi village, Watarais along the Okuk Highway in the Morobe Province on the night of 9^th July 2020. The Plaintiff was travelling in the direction of Watarais towards the Highlands while the Isuzu truck was travelling in the direction of Kassam Pass towards Watarais junction. Just a few meters away from the Watarais junction, the two vehicles collided in the middle of the road. As a result of the accident both vehicles sustained extensive damage, injuries to the drivers and passengers resulting in the death of a passenger.

5. The Plaintiff alleges the accident was caused by the negligence of the driver of the Isuzu truck resulting in the loss of his motor vehicle.

6. The Defendants deny the Plaintiff's claim and instead filed a Crossclaim against the Plaintiff. In the Crossclaim, the defendants allege that the Plaintiff drove under the influence of alcohol and caused the accident, which resulted in the complete loss of the second defendant's vehicle.

Trial

7. The trial was conducted on 2nd and 3rd June 2022 and decision reserved.

Evidence-The Plaintiff

8. The Plaintiff relies on the following affidavits which were tendered into evidence and exhibited as follows:

a) Affidavit in support of Sparks Tambia sworn and filed on 4/9/2020 (doc 3) – Exhibit P1.

b) Counter affidavit in response to the defendants' notice of motion of Sparks Tambia sworn and filed on 24/11/2020 (doc 13) – Exhibit P2.

c) Affidavit in support of Sparks Tambia sworn and filed on 9/4/2021 (doc 20) – Exhibit P3.

d) Affidavit of Kepas Nicksi sworn on 28/7/2021 and filed on 29/7/2021 (doc 34) — Exhibit P4.

9. The deponents were cross-examined. This is the summary of the Plaintiff's evidence. The Plaintiff was travelling from Madang to Mt. Hagen on the evening of 9^th July 2020. He loaded his vehicle, a Toyota Land cruiser, 10-Seater, Registration No. LBO 225 with 30 bags of betelnuts. Around 11.30pm, the Plaintiff drove past the Watarais junction and was heading for the Highlands when he collided with the Defendants oncoming vehicle from the opposite direction. The Plaintiff deposes the accident was caused by the first Defendant who left his left lane while on high speed and collided with him on his lane. He says the first Defendant was under the influence of liquor and caused the accident. As a result of the collision both vehicles sustained extensive damage. The Plaintiff was injured and trapped in the vehicle before he was rescued. The accident was investigated by the police the next day. Police investigated and concluded that the first defendant was careless in his driving which caused the accident. As a result of the accident, the Plaintiffs vehicle was extensively damaged and claims K80,000 for the full value of the vehicle. The Plaintiff refuted imputations levelled against him during the cross examination that he is not the owner of the motor vehicle, Toyota Land Cruiser Reg. LBO 225 and that he caused the accident.

The Defendants' Evidence

10. The Defendants rely on the following affidavits which were tendered into evidence and exhibited as follows.

a) Affidavit in support of Kiko Petrus sworn on 6/4/2021 and filed on 8/4/2021 (doc 19) – Exhibit D1.

b) Affidavit of Kunai Gene sworn and filed on 8/4/2021 (doc 18) – Exhibit D2.

c) Affidavit of Petrus David sworn and filed on 14/10/2020 (doc 9 – Exhibit D3.

d) Affidavit of Smith John sworn and filed on 29/9/2021 (doc 38) – Exhibit D4.

11. This is the summary of the Defendants' evidence. The Defendants Isuzu Truck, Registration No. JAC 476 driven by Kiko Petrus was travelling from the direction of Kainantu towards Watarais on its way to Madang Province. Just before reaching Watarais junction, the Isuzu collided with the Plaintiff's vehicle. The Isuzu Truck is a PMV and was loaded with passengers. The first defendant said that about 23 meters ahead, he noticed the Plaintiff's vehicle occupying his lane. He signaled to the Plaintiff three times to get back to his lane, but the Plaintiff ignored his warning and kept occupying his lane resulting in the fatal accident. The Defendants said the collision took place on the Defendant's Lane. The first Defendant and some of the passengers on the truck received injuries, resulting in the death of a passenger. All injured passengers were taken to Goroka Hospital early that morning.

12. The Defendants stated further that the Plaintiff was drunk as they found canes and beer bottles in the vehicle he was driving. The witnesses Smith John and Kunai Gene depose punching the Plaintiff for causing the accident. As a further result, the Isuzu Truck was damaged beyond economic repair and the Defendants filed a Crossclaim against the Plaintiff.

Issues

13. The main issues for consideration are:

1. Whether the Plaintiff has proved his claim on the balance of probabilities.

2. Whether the Cross claimant has proved his crossclaim on the balance of probabilities.

Law

14. The Plaintiff/cross-defendant and the Defendant/cross-claimant have the burden to prove their respective claims on the balance of probabilities with credible evidence: Yooken Paklin v The State (2001) N2212.

15. The cause of action of both parties is based on the tort of negligence. The burden of proving the elements of the tort of negligence is upon the party alleging it, not the party who denies it: Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Eton Pakui v The State (2006) N2977, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468 and Kay Pure v Tonnesi Ewebi (2021) N9013.

16. The elements of the tort of negligence particularly set out in the case Anis v Taksey (Supra) are:

(1) Tortfeasor or his principal owed a duty of care to the plaintiff and/or victim.

(2) Tortfeasor breached that duty, i.e. by act or omission the tortfeasor's conduct was negligent;

(3) Tortfeasor's negligent conduct caused injury to the plaintiff and/or victim;

(4) Plaintiff and/or victim's injuries were not too remotely connected to the tortfeasor's conduct; and

(5) Plaintiff and/or victim did not contribute to his own injuries, e.g. by being contributorily negligent or voluntarily assuming the risk of injury.

17. To establish negligence of a driver in a motor vehicle accident, the primary evidence should come from witnesses like drivers, crews, passengers and bystanders in proximity. Evidence of conviction of a traffic offence and evidence of the defendant being charged with a traffic offence, evidence of proposed action in a Road Accident Report are relevant but not sufficient to establish negligence. see Pure v Ewebi (Supra).

Consideration of Issue 1. Whether the Plaintiff has proven his claim on the balance of probabilities.

18. For the Plaintiff to succeed, the Plaintiff must prove that:

1. He is the owner of the motor vehicle

2. His motor vehicle was damaged because of the negligence of the first Defendant.

3. He suffered loss

Is the Plaintiff owner of the motor vehicle Reg No. LBO 225

19. The Plaintiff submits he is the owner of the vehicle, Toyota L/Cruiser, 10-Seater, Registration No. LBO 225. However, he did not produce the certificate of registration. A certificate of registration is prima facie evidence of ownership.

20. There is a plethora of judicial authorities that a certificate of registration is relevant to proving ownership of a motor vehicle. Refer: Kei v MVIT (1992) PNGLR 195, Paikel v Kaiwe Pty Ltd (1997) PNGLR 603, Danga v MVIT (1997) N1665, Nagari v Rural Development Bank (2007) N3295, Molu v Pena (2009) N3817 and Paraka v Upaiga & Another (2010) N4090.

21. In Paraka v Upaiga (Supra) the Court stated this at paragraph 19 of the judgment:

“19. But I am not satisfied that he is the owner of the motor vehicles because he has not produced...