Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Pure v Ewebi [2021] PGNC 234; N9013 (21 July 2021)

N9013

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1283 OF 2016

BETWEEN:
KAY PURE
Plaintiff

AND:
TONNESI EWEBI
Defendant

Lae: Dowa J
2021:11^th & 23^rd June and 21^st July

NEGLIGENCE – motor vehicle collision – whether the plaintiff proved on the balance of probabilities that the driver of the defendant's vehicle was negligent – tort of negligence. Whether evidence of charge of traffic offence is sufficient to establish negligence. The necessity of calling primary evidence to prove negligence.

Cases Cited:

Allen Anis v Dobon Taksey (2011) N4468
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

Counsel

K. Kevere, for the Plaintiff
P. Yayabu, for the Defendant

DECISION

21^st July, 2021

1. DOWA J: The Plaintiff is claiming damages for damage done to his PMV Bus in a road accident allegedly caused by the negligence driving of the Defendant. The Defendant denied liability. A trial was conducted on both issues of liability and quantum.

FACTS

2. The Plaintiff alleges he is the registered owner of a PMV Bus, Toyota Coaster Bus, Registration Number LBQ 658.

3. On 23^rd June 2016, the Plaintiff’s Bus, driven by his employed driver, one Paul Yapo, collided with the Defendant’s vehicle, a Toyota Land Cruiser Registration Number BDL 794.

4. The accident took place at a section of road between Ongkanong/Tanam villages, along the Highlands Highway, outside Lae city.

5. At the time of the accident, the Plaintiff’s bus was travelling from the direction of Nadzab towards Lae. The Defendant’s vehicle was travelling from the direction of Lae city towards Tanam/Ongkanong villages.

6. On arrival at Ongkanong village, the Defendant turned right to go to his block, and as he was pulling in, the Plaintiff’s Bus, which was coming on the highway collided into him.

7. It is alleged, that the Defendant was negligent and caused the accident. As a result of the accident, the Plaintiff’s bus sustained damage to the crew side.

8. The Plaintiff has instituted these proceedings claiming damages for cost and repairs and consequential orders.

9. The Defendant denied liability.

ISSUES

10. The issue for consideration is whether the Plaintiff has proven liability on the balance of probabilities.

THE PLAINTIFF’S EVIDENCE

11. The Plaintiff, Kay Pure gave evidence himself. His evidence was supported by a witness, Yakimbu Yoropo. The Plaintiff’s evidence is this. He is from Ialibu, Southern Highlands Province, currently a resident at 2-mile hill, Lae city. He is the owner of the motor vehicle, Toyota Coaster Bus, Registration Number LBQ 658. On 23^rd June 2016, at about 7 pm, his bus collided with the Defendant’s vehicle, a Toyota Land Cruiser at Tanam village along the Highlands Highway. The bus was driven by his driver, Paul Yopo. The driver was accompanied by crew, Jim Kelly. They were travelling from the direction of Nadzab towards Lae. Immediately after the accident happened, the driver and crew rang him. He then travelled to the scene of accident with some policemen from the Lae Police Station.

12. Mr. Pure said the accident happened when the Defendant who lives at Tanam turned right and crossed the lane resulting in a collision. He said the accident was caused by the negligence of the Defendant, as he should have waited for the bus who had a right of way to pass before crossing over. As a result, the bus sustained damage to the crew side (front left side) of the bus.

13. The Plaintiff said, next day, 24^th June 2016, he took the bus to Ela Motors for a quotation. Ela Motors assessed cost of repairs at K16,828.00. He asked the Defendant to settle in the presence of two policemen, namely, Yakimbu Yoropo and Joseph Tamanda. The Defendant agreed to settle. The Plaintiff, his wife and the two policemen went along with the Defendant and his wife to the BSP Bank, Market Branch, Lae, where the Defendant withdrew and transferred K16,828.00 to his account in settlement of the repair cost. He thought the matter was amicably resolved.

14. However, things did not end there. On Monday, 27^th June 2016, the Plaintiff was told to attend the Central Police Station. He was directed by a traffic officer, Steven Watinga, to return the K16,828.00 to the Defendant, which he did. The defendant was then charged with Driving Without Due Care and Attention.

15. In response to cross-examination, he maintained that the Defendant was negligent in the manner of his driving which caused the accident, and that the Defendant freely and voluntarily transferred the K16,828.00 to his account and not due to any threats or intimidation by him or his family members.

16. Yakimbu Yoropo gave evidence for the Plaintiff. He is a policeman based at the Nadzab Police Station. On 23^rd June 2016, he was at the Nadzab Police Station when he was told of the accident. He attended the scene of the accident that same evening. As it was dark and rainy, he deferred the investigations to the next day. He released the bus to the Plaintiff and took the Defendant’s Toyota Land Cruiser back to Nadzab Police Station. He was of the view that the Defendant was at fault in causing the accident.

17. He said, next day, 24^th June 2016, he together with another policeman, Joseph Tamanda, travelled to Lae Ela Motors accompanied by the owner, Kay Pure, his family members, and the Defendant. At Ela Motors, they got a quotation and gave it to the Defendant. They then went to BSP, market branch where the Defendant transferred K16,828.00 being cost of the repairs to the Plaintiff’s account. As the matter was resolved, he did not do any further investigations.

18. In response to the cross-examination, Constable Yoropo, denied that the Defendant was threatened or intimidated to transfer the money from his account to the Plaintiff’s account.

DEFENDANT’S EVIDENCE

19. The Defendant gave evidence himself. His evidence is this. On the evening of 23^rd July 2016, he was travelling home from 14-mile along the Highlands Highway. As he approached Ongkanong village (not Tanam as alleged by the Plaintiff), he signalled to turn right to his block about 30 metres away. As he was crossing the road, the Plaintiff’s bus which was on high speed, hit him on his left front side (crew side). The accident was caused due to the high speed and careless driving of the driver of the bus. He failed to slow down when he was already crossing the road. He was almost off the main lane when he was hit at the left side of the bus.

20. The Defendant says, the next day, 24^th June 2016, he was picked up by Constable YakimboYoropo and Constable Joseph Tamanda from Nadzab Police Station and they all travelled to Ela Motors, Lae. At Ela Motors, he said he was abused, threatened, and told to pay for the damage to the bus. The Defendant obtained a quotation from Ela Motors, which assessed damage and repair cost at K16,828.00. The Plaintiff and his family members threatened him to pay the money direct to the Plaintiff.

21. He felt intimidated and agreed to their request, and withdrew K16,828.00 and deposited same into the Plaintiff’s account.

22. On Monday, 27^th June 2021, he reported the incident to the Lae Rural Highway Police, who directed the Plaintiff to return the K16,828.00 which he did the same day. The Defendant says, they then charged him with Driving Without Due Care and Attention. He denied the charge and blamed the driver of the bus for causing the accident.

23. The traffic charges were eventually dismissed when the Plaintiff and his witnesses failed to turn up in Court to give evidence.

WHETHER THE PLAINTIFF HAS DISCHARGED THE BURDEN OF PROOF THAT THE DEFENDANT WAS NEGLIGENT.

24. The Plaintiff’s cause of action is based on the tort of negligence. The Defendant has denied liability in the proceedings. 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.

25. The basic elements of the tort of negligence to prove liability as set out in the case of Pakui v State by his honour, Cannings J are:

1. First that the defendant, or a person or persons for whom it is vicariously responsible, ie the tortfeasor, owed a duty of care to the plaintiff and the other claimants;

2. Secondly that the tortfeasor breached that duty, ie by act or omission the tortfeasor's conduct was negligent;

3. Thirdly that the tortfeasor's negligent conduct caused injury to the claimants.

4. Fourthly that the claimants' injuries were not too remotely connected to the tortfeasor's conduct; and

5. Fifthly that the claimants did not contribute to their own injuries, eg by being contributorily negligent or voluntarily assuming the risk of injury.

26. The Plaintiff has the burden of proving with credible evidence that the Defendant was negligent in the manner of his driving to establish liability. The Defendant has denied liability and gave evidence that he slowed down, gave his signal to turn right about 30 metres before crossing. He then turned right and crossed over to the dirt road away from the main lane. At that very moment, the PMV bus, which was coming on high speed, hit him on his far left. The point of contact to the PMV bus was also at the far left (crew side). This indicates the accident took place at the far left of the highway from the direction of Nadzab towards Lae city. This also confirms the evidence of the Defendant that he was already on the other side of the highway. Did the Plaintiff admit liability when he made the payment for the repairs on 24^th June 2016? No. I accept his explanation that he was under duress when he made the payment less than 24 hours.

27. Against the Defendant’s evidence, the Plaintiff did not produce direct evidence. He did not produce any eyewitnesses. His evidence of the accident was based on the report given to him by his driver, Paul Yopo and crew, Jim Kelly. Both his driver and crew did not give evidence in Court. The Plaintiff’s best evidence came from the Policeman, Constable Yakimbu Yoropo, who is said to have visited the scene of the accident. Again, Constable Yoropo said, it was dark and advised parties to meet the next day. Next day, they all travelled to Lae and attended to obtaining the quotation and settling the matter. He admitted during questioning that he did not conduct any investigations into this accident. He only expressed his opinion that the accident was caused by the Defendant without giving any details or circumstances giving rise to his conclusion.

28. In my view the Constable Yoropo’s evidence is not reliable to establish negligence without direct evidence. His evidence is based on what he was told and would be relevant and corroborative if there is direct evidence. Firstly, he came to the scene of the accident sometime after the accident. Secondly, it was dark and rainy, and he did not do any investigation that night or any time thereafter. Thirdly, it does not appear to be in the scope of his duties for him to accompany the parties to these proceedings to Ela Motors, where a quotation was obtained and the Defendant was pressured to pay for the repair cost, less than 24 hours. It appears the presence of the two policemen put added pressure on the Defendant to settle.

29. In my view, the normal practice would be for the police to continue the investigations and act in accordance with the Motor Traffic Laws and leave the matters for repair cost to the parties to sort out. The action of the Constable reduces the probative value of his evidence.

30. The direct evidence would have come from the driver, Paul Yopo and his crew, Jim Kelly. Both potential witnesses were not called to give evidence.

31. The Plaintiff could have called Steven Watinga, the Investigating Officer who charged the Defendant with a Motor Traffic offence.

32. Finally, I note the Defendant was charged under Section 17 (2) of the Motor Traffic Act Chapter 243, for driving a motor vehicle on a public road without due care and attention. The summary of facts attached to the Information shows that the Defendant denied the charge and shifted the blame to the driver of the Plaintiff’s bus. This necessitated a hearing and assessment of evidence. The matter was mentioned three (3) times, and the Defendant maintained his innocence. The Investigating Officer and the Plaintiff did not bring any witnesses at the hearing to prove the charge and the case was dismissed.

33. The evidence of the Defendant being charged with the traffic offence is relevant to the question of whether he is negligent. However, it is not proof of negligence per se. This is discussed in the cases Daniel Occungar v Luke Kiliso (2010) N4102, John Kul v The State (2010) N3898, Titus Banga v Madang Port Services Ltd (2011) N4302 and Allen Anis v Dobon Taksey (2011) N4468.

34. In Allen Anis v Dobon Taksey, Cannings J said this at paragraph 9 of his judgment:

“9. Even evidence that the driver of a vehicle has been charged with a traffic offence in connection with a collision, without proof of conviction, may be admissible and relevant to the question of whether that driver was negligent (Titus Banga v Madang Port Services Ltd (2011) N4302). Here there is evidence, not only that the first defendant was charged with traffic offences, but that he was convicted. The fact that he was convicted of driving without due care and attention is of special significance. It shows that a court of law, exercising the judicial power of the People, has been satisfied beyond reasonable doubt that the first defendant drove the Hyundai without due care and attention. That decision has not been overturned on appeal. Evidence of the convictions is therefore relevant to the question of whether the first defendant was negligent and it is of high probative value, in that it supports the proposition being advanced by the plaintiff, that the first defendant was negligent (Mathew John Westcott v MVIL (2008) N3565). When that evidence is combined with the evidence of the plaintiff's son and the passengers on the Dyna, and taking into account that the defendants adduced no evidence to rebut the ordinary and natural inference arising from the evidence adduced by the plaintiff, it is an easy task for the court to be satisfied that the first defendant was indeed negligent. He caused the collision. He was in the wrong. He negligently performed a U-turn. He failed to keep a proper lookout. He failed to meet the standards of a reasonable driver (Kembo Tirima v Angau Memorial Hospital Board (2005) N2779, Litina Okevi v PNG Electricity Commission (2006) N3074).”

35. Even the evidence of conviction of a traffic offence may not be sufficient to establish negligence, though it has probative value. In John Kul v The State, Makail J said this at paragraph 11 of his judgment:

“11. An action in negligence is different from a criminal proceeding based on a charge of driving without due care and attention although the facts giving rise to both proceedings and the parties may be the same. However, the difference is that the elements of establishing negligence are not the same as those for driving without due care and attention under section 17(2) of the Motor Traffic Act. The other difference is that the onus of proof is higher (beyond reasonable doubt) in a criminal proceeding than in civil proceeding. That means, the plaintiff still bears the onus of proving liability in this case on the balance of probabilities and the certificate of conviction is merely evidence of the fact that Constable David Takpe was convicted of driving without due care and attention. It does not establish liability per se. For these reasons, I am not satisfied that the defendant made admissions in its witness’s evidence (affidavit).”

36. In my view, to establish negligence of a driver in a motor traffic accident, the primary evidence should come from witnesses like drivers, crews, passengers and by standers in proximity. The primary evidence is then supported by the next relevant evidence from traffic police investigators who may tender copies of Road Accident Reports. In some cases, the evidence of a motor traffic charge and a certificate of conviction may become relevant and add value to the primary evidence. Without the primary evidence, the secondary evidence described, though relevant, may not be sufficient to establish liability.

37. In the present case the Defendant had a duty of care to other users of the public road including the Plaintiff’s bus. It was alleged that he breached that duty of care. He was even charged with a traffic offence for undue care and attention. However, he was not convicted. The evidence of being charged with the traffic offence is relevant to the issue of negligence but is not proof of negligence per se. The Plaintiff did not provide direct evidence to challenge the defendant’s version of the accident. I find no reason to reject the evidence of the Defendant. He remained firm even during cross examination. In the circumstances, the Plaintiff has not established on the balance of probabilities that the Defendant was negligent in the manner of his driving. The onus is on the Plaintiff to prove with credible evidence that it was the Defendant who was at fault. He has not satisfactorily discharged that burden. I will therefore dismiss the Plaintiff’s proceedings.

38. Even if I am wrong about the assessment of the evidence on negligence, the Plaintiff has also failed to prove his claim on other aspects. I find the Plaintiff has not proved ownership of the vehicle by producing a copy of the certificate of registration. The Plaintiff has not produced any evidence to prove any damages suffered. He has not produced copies of invoices, receipts or even a quotation. The proceedings can be dismissed for these reasons as well.

COST

39. Cost is a discretionary matter. The Plaintiff failed to prove his claim. The Defendant has been successful in defending the proceedings. The Defendant is therefore entitled to the costs.

ORDERS

40. The Court orders that:

(1) The Plaintiff’s proceeding is dismissed.

(2) The Plaintiff shall pay the cost of the proceedings to be taxed, if not agreed.

(3) Time of entry of these Orders is abridged to take place forthwith upon the Court signing the Orders.
________________________________________________________________
Public Solicitor: Lawyer for the Plaintiff
Paula Ivarami Yayabu Lawyers : Lawyer for the Defendant