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Wan v Engineering Management Pty Ltd [2010] PGNC 268; N4187 (17 December 2010)

N4187

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 127 OF 1999

BETWEEN

JOHN WAN
First Appellant

AND

KUNDI MOND POK
Second Appellant

AND

ENGINEERING MANAGEMENT PTY LTD
First Respondent

AND

MARK D. MON
Second Respondent

Mount Hagen: Makail, J
2009: 24th September &
2010: 17th December

CIVIL APPEALS - Appeal from District Court - Civil claim - Negligence - Motor vehicle accident - Liability - Damages - Assessment of - Costs of repairs - Economic loss - Contributory negligence - Apportionment of - Proof of - Balance of probabilities - No error shown - Appeal dismissed.

Cases Cited:

Nil

Counsel:

Mr P Kopunye, for Appellants
No appearance, for Respondents

JUDGMENT

17th December, 2010

1. MAKAIL, J: The appellants appealed the decision of Mt Hagen District Court of 06th March 1999 which dismissed their claim for damages arising from an alleged negligent action of the respondents. The first appellant is the owner of a PMV permit and the second appellant is the owner of a motor vehicle bearing registration number P-4207. By an agreement between them, the second appellant operated a PMV business using his motor vehicle as a PMV under the PMV permit of the first appellant.

2. The first respondent is a company wholly owned by the Western Highlands Provincial Government. It provides engineering and road maintenance services. The second respondent is employed by the first respondent as its driver.

3. It was alleged that on 12th September 1992, the second appellant's motor vehicle was involved in a motor vehicle accident along the Banz/Kimil road when it collided with a motor vehicle owned by the first respondent and driven by the second respondent. In the motor vehicle driven by the second respondent were the Dei District Officer John Kipa and his wife Giegao Kipa who were employees of the Western Highlands Provincial Government. As a result of the motor vehicle accident, the second appellant's motor vehicle sustained severe damage and was put into repairs.

4. The appellants sued the respondents to recover costs of repairs of K1,535.58 and economic loss of K10,000.00 inclusive of legal costs and interest. The District Court dismissed the claim because it was not satisfied that the appellants had established liability.

5. In the appeal, the appellants relied on 13 grounds. They were:

"1. His Worship failed to take into account Written Submission on the question of admissibility of the Affidavit of Mark D. Mon.

2. His Worship failed to rule on the interlocutory issue of the admissibility of the evidence and proceeded wrongfully to deliberate in the substantive matter.

3. His Worship by his above errors wrongfully took into account affidavit of Mark D. Mon.

4. His Worship failed to allow Counsels (sic) make final submissions on both the issues of liability and quantum.

5. His Worship erred in ruling that the Investigating Officer was not called to give evidence when in fact he was called and gave evidence.

6. After finding that Second Defendant and the driver of the Complainant to have been some what equally responsible for the accident, failed to apportion liability between either of the Defendants and the Complainant.

7. Having erred as pleaded in paragraph 6 above, further failed to consider apportionment of liability between the First and Second Defendants.

8. His Worship wrongfully considered the affidavit of Giegao Kipa when it was not tendered as evidence.

9. His Worship wrongfully found that there was no connections (sic) between the Western Highlands Provincial Government and Mark D. Mon as the driver of Dei District Office and John Kipa as the District Officer for Dei, and the Engeering Management Pty Ltd.

10. The findings by His Worship that the First Defendant was not liable for the Tort Committee (sic) by the Second Defendant was against the evidence that Mark D. Mom the Second Defendant was driving the motor vehicle owned by the First Defendant.

11. The whole of the decision was against the weight of the legal evidence before Court.

12. Given all of the above errors His Worship further erred in not realizing that there were two (2) separate complainants and

13. Such other grounds as may has available."

6. Although the appellants through their lawyers served a copy of the Court Order of 21st September 2009 on the lawyers for the respondents which directed parties to file and serve written submissions by or before 22nd September 2009 and for hearing of submissions on 24th September 2009, the lawyers for the respondents failed to comply with those directions. Only the lawyers for the appellants had complied with those directions.

7. The appellants had through their counsel abandoned grounds 1-3 of the appeal because the learned magistrate had in fact earlier on ruled on the question of admissibility of the affidavit of the second respondent. Therefore, these grounds are considered abandoned. They had also abandoned ground 5 of the appeal because no such finding was made by the learned magistrate. Therefore, this ground is also considered abandoned.

8. Turning to the remaining grounds of appeal, first, in relation to ground 4 of the appeal, in his submission, counsel for the appellants argued that parties had been denied the opportunity of making final submissions either orally or in writing to the Court on questions of liability and assessment of damages before the Court made its decision. As a result, there was breach of natural justice.

9. Having perused the Court depositions in the appeal book, it is noted there is neither a record of trial notes, particularly the trial notes of 31st December 1998 in relation to the Court's direction or orders for parties to file and serve written submissions nor a date fixed by the Court for hearing of oral submissions from the parties' lawyers. However, it is noted from the written judgment of the Court at p 132 of the appeal book that counsel for the parties undertook to file written submissions with the Court but had not done so. As a result, the Court went ahead and deliberated on the matter without the parties' submissions and made its decision.

10. Given this scenario, the issue here is not whether the parties, especially the appellants were denied natural justice when they were not given the opportunity to make final submissions before the Court made its decision but rather, whether the Court gave the parties that opportunity. It is unclear from the Court depositions if the Court invited the parties to make final submissions either in the form of a direction for parties to file written submissions or for parties to appear on a certain date and make oral submissions because as noted above, there are no trial notes to clarify this issue.

11. But what is clear is, the learned magistrate stated in his written judgment (supra) that parties undertook to file written submissions but had failed to do so. In my view, that record speaks for itself, in that, in the absence of any evidence to the contrary, it must be accepted that the Court invited parties to make final submissions but they failed to do so. That means, the Court gave the parties the opportunity to make submissions. It follows they had, by their conduct waived their right hence, must accept the decision of the Court. For these reasons, I find no error here and dismiss this ground of appeal.

12. Grounds 6 and 7 of the appeal can be addressed together because they raise the issue of proof of liability which is essentially, the substance of the appeal. In his submission, counsel for the appellants argued that the learned magistrate had wrongly dismissed the claim on the basis that the appellants had failed to establish that the respondents had been negligent. He pointed out that the evidence before the Court at the very least suggested that both parties had been guilty of contributory negligence and the learned magistrate should have found that the respondents were partly responsible for the motor vehicle accident and should have apportioned damages.

13. Having perused the Court depositions, in particular the affidavits of the parties' witnesses, their oral evidence, the police accident report and the written judgment of the Court and I am not satisfied that the appellants have established these grounds of appeal.

14. With respect, it is incorrect to suggest that the learned magistrate found that the drivers of both motor vehicles were negligent. As far as my reading of the written judgment of the Court is concerned, the learned magistrate concluded at p 137 of the appeal book that he was not satisfied that the second respondent was wholly or partially responsible for the motor vehicle accident. He reached that conclusion because there were a number of possible reasons for the accident.

15. One was the excessive speed of the second appellant's motor vehicle. He suggested this as a possible cause of the accident because it was not disputed by the parties that following the collision of the two motor vehicles, the second appellant's motor vehicle ran off the road while the respondents' motor vehicle remained on the road. The other was the width of the road. It was suggested that the road was narrow, hence the motor vehicles had limited space to negotiate and avoid the collision. Then, there was the suggestion that there was heavy fog on the road as it was early morning and none of the motor vehicles had their head lights on as a warning to on coming motor vehicles. Either one or all of these factors could have caused the accident.

16. When citing these possibilities, it is noted that although the respondents alleged that the driver of the second appellant's motor vehicle called John Mond Apin had been drunk at that time, the learned magistrate had not cited this as a possible reason for the accident in his decision. Likewise, it was also alleged by the appellants that the second respondent and John Kipa had been drunk. However, the learned magistrate had not cited this as a possible reason for the accident. It appears this was because the evidence of the police traffic officer, Senior Constable Paul Iwaga and the police accident report were inadequate. This possibility was therefore ruled out.

17. All in all, because the accident may have been caused by one or all of the above factors, he was not satisfied that the second respondent was either wholly or partially responsible for the accident. For these reasons, there was no basis for him to apportioned liability and damages.

18. In my view, the learned magistrate's analysis of the evidence in relation to the circumstances surrounding the accident was proper and in accordance with the law on burden of proof in civil cases where the party who asserts must prove the assertions on the balance of probabilities. That means, the appellants had failed to establish negligence on the balance of probabilities. For these reasons, I dismiss these grounds of appeal.

19. As for grounds 8 of the appeal, it was argued by counsel for the appellants that Giegao Kipa was never a witness for the respondents at the trial before the District Court. She neither attended and gave oral evidence nor was her affidavit tendered as evidence at trial. To support this contention, counsel referred the Court to the Court depositions in the appeal book and submitted that there was record of this witness's affidavit being tendered or her giving oral evidence.

20. For these reasons, he submitted that it was wrong for the learned magistrate to accept and rely on her affidavit as part of the respondents' case to deny the claim. When he did, her evidence persuaded him to find for the respondents and dismissed the claim.
Again, having perused carefully the Court depositions in the appeal book, with respect, I am unable to agree with the submissions of counsel. It is clear that Giegao Kipa was one of the witnesses for the respondents. She filed an affidavit and also gave oral evidence at trial. She was also cross-examined by the appellants' counsel and her affidavit was tendered as part of the respondents' case without objection from the appellants' counsel. Her affidavit and the trial notes maybe found at pp 83-94 of the appeal book. They confirm that she was a witness for the respondent. It follows the learned magistrate was perfectly entitled to take into account her evidence in determining the issues before the Court. This ground has no merit and is dismissed.

21. Turning to grounds 9 and 10 of the appeal, counsel for the appellants submitted that the learned magistrate wrongly found that there was no "connection" between the Western Highlands Provincial Government and the second respondent, the Dei District Officer John Kipa and the first respondent. He submitted that there was a "corporate connection" between them. This is because the Western Highlands Provincial Government is a sole shareholder of the first respondent and as a sole shareholder should, have been vicariously liable for the negligent actions of the second respondent.

22. Further, counsel argued that the second respondent was an employee of Western Highlands Provincial Government who was at the material time driving a motor vehicle owned by the first respondent and was involved in the motor vehicle accident. For this reason too, the second respondent should have been vicariously liable for the tort of negligence.

With respect, this contention must fail. I accept the learned magistrate's observation that the first respondent is a separate entity from the Western Highlands Provincial Government. That is a correct observation of the law. Section 16 of the Companies Act, 1997 makes it plainly clear that a company is a separate legal entity. It states:

"A company is a legal entity in its own right separate from its shareholders and continues in existence until it is removed from the register."

23. Indeed, the appellants had acknowledged this in their pleadings at paragraph 7 of the statement of claim at p 14 of the appeal book. They alleged at paragraph 7 that the first defendant (respondent) was a "corporate body incorporated in Papua New Guinea and can sue and be sued in its corporate name, style and capacity." Despite their acknowledgment, how then is it that they argue that the first appellant is the "same" entity as the Western Highlands Provincial Government because of some kind "corporate connection" between them in terms of the Western Highlands Provincial Government's shareholding interest in the first respondent? I find their contention contradictory and misleading. I dismiss this contention as being misconceived.

24. I also reject the further contention that because the second respondent was an employed driver of the Western Highlands Provincial Government and was transporting officers from the Western Highlands Provincial Government to Dei Council District in a motor vehicle owned by the first respondent, the respondents should have been held liable under the principles of vicarious liability. I dismiss this contention because Western Highlands Provincial Government was not sued in the proceedings in the District Court. It was not a defendant.

25. Therefore, it is wrong to suggest that the learned magistrate was wrong in not finding that the first respondent was vicariously liable for the actions of the officers of the Western Highlands Provincial Government. For these reasons, I find no merit in these grounds of appeal and dismiss them.

26. Grounds 11, 12 and 13 can be disposed of quickly because they are vague and lack sufficient details to enable the Court to identify the issue or issues raised in these grounds of appeal. For this reason, these grounds are dismissed.

27. The end result is, there are no errors shown in decision of the District Court and the appeal is dismissed with each party bearing their own costs since the respondents had not shown interest in defending the appeal by their non appearance at the hearing.

Orders accordingly.
_________________________________

Kopunye & Co Lawyers: Lawyers for the Appellants
No Appearance for Respondents