Waysang Kum Kee v Kiribati Inter-Island Shipping Services [2010] KIHC 78; Civil Case 176 of 2007 (2 August 2010)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Case 176 of 2007

BETWEEN:

WAYSANG KUM KEE TRADING AS
WKK SHIPPING SERVICES
PLAINTIFF

AND:

KIRIBATI INTER-ISLAND SHIPPING SERVICES
ATTORNEY GENERAL IRO MINISTRY OF
COMMUNICATIONS, TRANSPORT AND
TOURISM DEVELOPMENT
DEFENDANT

For the Plaintiff: Ms Prem Narayan
For the 1st Defendant: Mr Mantaia Kaongotao
For the 2nd Defendant: Ms Ereta Bruce

Dates of Hearing: 29 July 2010

ASSESSMENT OF DAMAGES

On 10 December 2009 I gave judgment in favour of Mr. Waysang Kum Kee against the Attorney General iro Ministry of Communications, Transport and Tourism Development on liability with damages to be assessed. Now for the assessment.

On 11 June the plaintiff filed a "Schedule of Loss of Damages". By consent I have taken this Schedule as if it were in the form of an affidavit and the evidence in chief of Mr. Kum Kee. A copy is appended and should be read in conjunction with these Reasons. The Attorney General on the other hand last Wednesday, the day before the hearing, filed four affidavits from various persons. Not good practice. Ms Narayan asked me not to receive them but I did. None of the deponents was called: Ms Narayan did not apply to cross examine them. Of the four there was only one affidavit to which I need have regard: that of Mr. Moote Kabure, Marine Surveyor:-

7. The estimated value of this vessel when it was chartered by the plaintiff is $120,000.00 not $150,000.00 .....

8. However since South Sea Mana has not been slipped the value is going down and cannot come to $120,000.

Tantalizingly Mr. Kabure does not say what his assessment of its value may be.

Originally Mr. Kum Kee had chartered MV South Sea Mana for five years from 17 May 2005. Later, according to the evidence of Mr. Kum Kee, the charter agreement was converted into an agreement for sale and purchase of the vessel for $120,000. Ms Bruce argued that Mr. Kum Kee had not bought it and was still only the charterer: the only damages to which he was entitled were loss of past earnings during the term of the charter. I reject the argument. Mr. Kum Kee was the only witness. His evidence is uncontradicted. I have no reason not to accept it. His evidence is that he bought the vessel and was the owner of it when it was lost. There was some confirmation of this in the Licence to Trade between 21/08/06 and 21/08/07 (Exhibit P1) in which the name of the owner is given as "WKK Shipping Service". [The name typed on the document was "Lightly Damp Shipping". Mr. Kum Kee explained this is a typing error (taken from an earlier document) and correctly "WKK Shipping Service" has been written in its place]. Mr. Kum Kee was the owner not merely the charterer. I shall assess damages on that basis.

Ms Narayan submitted that damages should be assessed under three heads:-

1. Replacement Cost of Vessel and the Expenses of Bringing it to Tarawa
   
2. Compensation for Loss of Chattels on board MV South Sea Mana
   
3. Loss of Past Earnings
   

Ms Narayan abandoned the claim in paragraph 3 of the Schedule for loss of future earnings.

I accept Mr. Kum Kee's evidence but that does not go as far as accepting without question his figures. Human nature being what it is I expect the highest credible figure has been given for each loss. I do not criticize Mr. Kum Kee for "making every post a winning post" but I shall discount significantly his various estimates. As always in these cases it is a matter of "wielding the broad axe".

The general rule is set out in Clerk and Lindsell on Torts (19th edition) at paragraph 29-06:-

The general object of an award of damages is to compensate the claimant for the losses, pecuniary and non-pecuniary, sustained as a result of the defendant's tort. The general principle is, in the oft-quoted words of Lord Blackburn, that the court should award "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.

1. Replacement Cost of Vessel and the Expenses of Bringing it to Tarawa

Mr. Kum Kee had to find a replacement vessel in Australia. He paid $250,000 for it. The alternative to allowing that sum would be to allow the value of MV South Sea Mana which he put at $150,000 and the Attorney General at some lesser figure. However to obtain a roughly comparable vessel he paid to pay $250,000. It is reasonable to allow the full cost of the replacement.

Mr. Kum Kee has also claimed the costs and expenses of taking himself and the crew to Australia for eight weeks to bring the vessel to Tarawa. In argument Ms Narayan conceded that perhaps allowance only for six weeks would be appropriate. I allow $100,000. To this must be added the customs duty paid at Tarawa, $25,000.

2. Loss of Chattels

The figures in the left hand column of the Schedule are the actual costs to Mr. Kum Kee of acquiring various items. I shall work on them. I allow $40,000.

3. Loss of Past Earnings

Ms Bruce did not challenge the calculations in the Schedule. I shall work from them. In the Schedule the total is $159,585.71. This figure must be significantly discounted for contingencies. I shall allow $100,000.

The total is $515,000.

I shall allow counsel time to check my arithmetical calculations before entering judgment.

Dated the 2nd day of August 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice