William Mel v Coleman Pakalia, Commissioner of Police, The Independent State of Papua New Guinea (2005) SC790

• Jurisdiction: Papua New Guinea
• Judge: Los J, Jalina J, Cannings J
• Judgment Date: 01 July 2005
• Court: Supreme Court
• Citation: (2005) SC790
• Docket Number: SCA No 134 of 2003
• Year: 2005
• Judgement Number: SC790

Full Title: SCA No 134 of 2003; William Mel v Coleman Pakalia, Commissioner of Police, The Independent State of Papua New Guinea (2005) SC790

Supreme Court: Los J, Jalina J, Cannings J

Judgment Delivered: 1 July 2005

SC790

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 134 0F 2003

WILLIAM MEL

Appellant

V

COLEMAN PAKALIA

First Respondent

COMMISSIONER OF POLICE

Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

WAIGANI : LOS J, JALINA J, CANNINGS J

28 FEBRUARY, 1 JULY 2005

APPEAL

Negligence – motor vehicle accident – negligent driver caused death of off-sider in PMV – driver of PMV paid compensation to relatives of the deceased – customary compensation – trial on assessment of damages after entry of default judgment – trial judge dismissed proceedings as disclosing no cause of action – whether trial judge acted within the scope of the proceedings – whether error of law made – whether trial judge should have assessed damages – whether there was sufficient evidence before the National Court to warrant an award of damages – power of Supreme Court to make an award of damages – whether case should be remitted to the National Court.

Held: trial judge erred in law – appeal upheld – Supreme Court assesses damages of K15,900.00 – plus interest and costs – remarks on non-appearance by Solicitor-General.

Cases cited

Albert Baine v The State (1995) N1335

Andale More and Manis Andale v Henry Tokam and The State (1997) N1645

Cheong Supermarket Pty Ltd v Pery Muro [1987] PNGLR 24

Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002) N2182

Desmond Huaimbukie v James Baugen (2004) N2589

Graham Mappa v PNG Electricity Commission [1995] PNGLR 170.

Inabari v Sapat [1991] PNGLR 427

Jonathan Mangope Paraia v The State (1995) N1343

Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337

Kembo Tirima v ANGAU Memorial Hospital Board and The State (2005) N2779

Kopung Brothers Business Group v Sakawar Kasieng [1997] PNGLR 331

Michael Buna v The State (2004) N2696

MVIT v Pupune [1993] PNGLR 370

MVIT v Tabanto [1995] PNGLR 214

Obed Lalip and Others v Fred Sikiot and The State (1996) N1457

Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694

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

Repas Waima v MVIT [1992] PNGLR 254

Tabie Mathias Koim and 28 Others v The State and Others [1998] PNGLR 247

Waima v MVIT [1992] PNGLR 254

William Mel v Coleman Pakalia, Joseph Kupo and The State (2003) N2477

Yange Lagan and Others v The State (1995) N1369

Yooken Paklin v The State (2001) N2212

Counsel

P Parkop for the appellant

No appearance for the respondents

BY THE COURT

This is an appeal against a decision of Gavara-Nanu J in the National Court, in which his Honour dismissed a claim for damages arising out of a motor vehicle accident. (See William Mel v Coleman Pakalia, Joseph Kupo and The State (2003) N2477.)

BACKGROUND

The accident

The motor vehicle accident happened on the evening of 14 December 2000 in Port Moresby. The appellant, William Mel, was driving a public motor vehicle (PMV) bus along Kaubebe Street, Boroko in the direction of the Boroko market. Also in the bus were Raus Rap, a crewmember, and Rosa Mel, the appellant’s wife. Behind the PMV was a police vehicle, a Toyota Landcruiser, driven by the first respondent, Coleman Pakalia. Near the intersection with Vaivai Avenue the police vehicle crashed into the back of the PMV and it overturned. Rosa Mel was injured, but her injuries are not the subject of these proceedings. Raus Rep was also injured, and died because of the injuries.

Appellant’s allegations

The appellant claims that after the accident he was arrested by the police and detained at the Boroko Police cells. He says he was beaten up by the police who blamed him for the accident. He, however, has maintained all along that he did not cause the accident. It was caused by Coleman Pakalia, the police officer who was driving the Toyota Landcruiser. The appellant says that despite being blameless, he was charged over the accident and faced proceedings in the District Court. He was found not guilty. The question of whether the appellant was beaten up and suffered injuries is not at issue in the present case. They are allegations only. We mention them here only because they were made in an affidavit in the National Court and they help to provide the background of this appeal.

Compensation claims

The appellant claims that he incurred considerable costs in transporting the body of the deceased to the Western Highlands Province and paying compensation to the deceased’s relatives and other related expenses. He claims that he had to do this as both he and the deceased are from Western Highlands Province where payback killing and compensation claims arising from deaths are still the norm.

On 3 July 2002 the appellant’s lawyers, Powes Parkop Lawyers, filed a writ of summons in the National Court on behalf of the plaintiff. The parties named as the defendants were the same as the respondents to the current appeal: Coleman Pakalia, the Commissioner of Police and the State.

The statement of claim endorsed on the writ pleaded that Coleman Pakalia was negligent, reckless and careless in his driving of the Toyota Landcruiser. He caused the collision and the consequent death of the deceased and injuries to other persons. Coleman Pakalia was under the influence of liquor, he failed to stop and give way when required to, he was driving at an excessive speed and he ought to have foreseen that if he failed to drive carefully and diligently he could cause an accident. Coleman Pakalia breached the duty of care he owed to the appellant and the passengers in the appellant’s vehicle, thereby causing injuries to the appellant and the passengers in the appellant’s vehicle.

The Commissioner of Police was joined as a second defendant on the ground that he was the first defendant’s immediate employer and responsible for his acts and omissions.

The State was joined as the third defendant as it was the ultimate employer of the first and second defendants. It was claimed that both the second and third defendant were vicariously liable for the acts and omissions of the first defendant.

The first defendant was sued in both his personal capacity and his capacity as agent or servant of the second and third defendant “under principles of vicariously liability and under the Wrongs (Miscellaneous Provisions) Act.

The main remedy sought by the appellant was an order for damages including exemplary, punitive and special damages.

Special damages were particularised as follows:

compensation paid to the deceased’s family in Mt Hagen (K12,000.00) and ten pigs (K10,000.00);

return airfares from Mt Hagen to Port Moresby for three people to accompany the deceased’s body (K1,800.00);

purchase of coffin and clothes to dress the deceased (K500.00);

hire of vehicle from Kagamuga Airport to Warakum and use of that vehicle for seven days during the mourning period (K1,400.00);

fuel expenses for use during the mourning period in Mt Hagen K500.00;

accommodation and other associated expenses (K5,000.00).

No defence

On 19 July 2002 the Police Legal Services Unit of the Department of Police, Konedobu, filed a notice of intention to defend on behalf of the first defendant. However neither the second nor the third defendant filed a notice of intention to defend and none of the defendants filed a defence.

Default judgment

On 18 November 2002 Powes Parkop Lawyers filed a notice of motion for default judgment.

On 14 April 2003 the motion was upheld by the National Court at Waigani and default judgment was entered in favour of the plaintiff. The Court also made an order that the matter be adjourned for trial on assessment of damages.

Trial

The trial was conducted by Gavara-Nanu J on 6 and 8 August and 13 October 2003.

On 6 August 2003, Mr Parkop, for the plaintiff, produced two affidavits. One by the plaintiff and the other by the plaintiff’s wife. The plaintiff was subject to cross-examination by the defendant’s lawyer, Ms Lilih.

On 8 August 2003 the trial resumed. Both oral and written submissions were made on behalf of all parties. Mr Parkop withdrew the claim for general, exemplary and punitive damages. The claim was restricted to special damages, ie those particularised in the statement of claim. Mr Parkop asserted that the plaintiff did not need to have detailed receipts and records of the expenditure that he incurred. The plaintiff was in a difficult situation and he was required to come good with a claim for compensation by the deceased’s relatives as quickly as possible. He did not have time to keep records or receipts. In support of that proposition he referred to the judgment of Woods J in the National Court in Repas Waima v MVIT [1992] PNGLR 254.

Ms Lilih submitted that the plaintiff had not produced sufficient material to support the claims that he spent K20,000.00 of his own money. She referred to the accident report prepared by the police, which showed that the plaintiff was not actually the owner of the bus. The owner of the bus, she submitted, was Raymond Mel, the plaintiff’s brother. This cast considerable doubt on the plaintiff’s claim that he would have had K20,000.00 cash available to pay for funeral expenses and the like, at...