Steamships Automotive Ltd trading as Toba Motors v Ape [2000] PGDC 43; DC451 (7 September 2000)

DC451

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1187 OF 2000

BETWEEN

Steamships Automotive Limited
trading as Toba Motors
Complainant

V

Simon Ape
Defendant

Mr. Iova S. Geita - Sm
2000: June 13, 29, July 10, September 7

Cases Cited
Srupple Vs. Royallnsllrance Com. Limited [1971] I Q.B 50.
Hadkinson v Hadkinson (l952) 2 ALL ER 569.
Jones Is. Livox Quarries Limited [1952] EWCA Civ 2; [1952} 2 Q.B. 608.

Counsels
Lama Vere for the Complainant Defendant in person

REASONS FOR DECISION

GEITA L S. - The Complainant is claiming damages for damage caused to his motor vehicle and as a result of the Defendant's negligent driving on 6th December 1999 along Scratchly Road. It is not disputed that the accident occurred. The complainant disposed in his affidavit that the defendant drove out on to the main road in front of two parked bosses and crashed straight into the back left of his vehicle. The - extent of the damage and a quote to repair has not been given to Court.

The Complainant has produced a Certificate of Conviction against the Defendant entered on 15 May 2000, by Waigani Traffic Court to show that he should be held liable. The Defendant has rebutted the evidence by saying that the Traffic conviction does not truly reflect the guilt or otherwise of his wrong. He says he was wrongly found guilty and convicted. I might add here that the only time a Court Order or conviction is found wanting or defective is by appeal procedures. For the defendant to say here that he was wrongly found guilty and convicted does not help him in any way, save to vent his anger and frustration

As it is, there really is nothing this Court can do to assist. A Court Order whether good or bad must be complied with. A person who knows of a court order cannot be permitted to ignore it regardless of whether he thinks it is right, wrong, null or regular; he is bound by it.

The court adopted with approval the following ruling in the case of Hankinson v Hankinson 11952J 2 ALL ER 567 at 569: "it is a plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey until and unless that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends to cases where the person affected by an order believes it to be irregular or even void."

The Defendant maintains that when he saw that the road was clear of on coming motor vehicles on his left and right he pulled out onto the road and collided with the Complaint's motor vehicle. The defendant admits the collision however says that the extent of the damage could be minimized had the complainant not raced past at great speed. As a result there was a tear on the car body from the point of impact extending to the rear of the car.

The Defendant says that Complaint's motor vehicle was traveling very fast at the time. Again I have not been shown the exact nature of damage caused to the Complaint's motor vehicle or a quotation for anticipated repair costs. The Complainant has not told Court if he was traveling very fast or slow. From the evidence before me it is most probable that he was traveling at high speed. I say this because in order to go past 2 PMV buses on the same lane and to reach the main junction at Badili before encountering any on-coming motor vehicle, there is a possibility, of accidents and so motorists would have to travel at very high speed to reach safety on the other side. I am convinced that that is what has happened in this case. I might add here that although the complainant was entitled to travel at great speed in a short space of time to avoid a collision, he put himself and his vehicle in a dangerous position, which in fact exposed him to the particular danger, which came upon him. He ought to have taken care. As Denning L. J. said in the case of Jones Vs. Livox Quarries Limited /1952J 2 Q.B. 608 at 615:

"A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless."

The Complainant must thus bear his proper share of responsibility for the consequence of his actions. Furthermore the damage or tear from the point of impact, to the end of Complaint's motor vehicle is sufficient to establish that he must be travelling at great speed hence the tear and peel. Had the Complainant travelled past at normal speed of which I am doubtful because you have 2 PMV buses to over take, the tear would have been minimised or restricted to the point of impact and may be minimal but not extending all the way to the end of the vehicle as deposed by the Defendant.

In regards to the Certificate of Conviction or the use of a criminal conviction in a civil case Lord Denning in the case of Stuoole Vs. Rovallnsurance Com. Limited [1971] 1 Q.B 50 at p. 72 has this to say: "that proof of the conviction in a later civil case not only shifted the burden of proof but was a weighty piece of evidence itself."

Section 47 Evidence Act Chapter No.48 also talks about this area within our jurisdiction. It reads: -

8.47. (1) Use of convictions.

(1) In any civil proceedings the fact that a person has been convicted of an offence by or before a court in the country or by a court-martial in the country or elsewhere is, subject to Subsection (3), admissible in evidence for the purpose of proving that he committed the offence, whether he was so convicted on a plea of guilty or otherwise and whether or not he is a party to the proceedings, but no conviction other than a subsisting one is admissible in evidence under this section.

(2) The fact of a conviction is not admissible in any civil proceedings merely to prove that the person convicted has a propensity to behave in a particular manner.

The Complainant deposed in his affidavit the existence of the Conviction Certificate but has not attempted to give evidence that the defendant was solely negligent and must be found liable for the damages. These facts must be pleaded.

The Defendant has taken issue of his conviction and has produced evidence to show that the Complainant also contributed to the extent of the damage due to his careless driving. I am satisfied on the balance of probabilities that the Complainant drove at speed, which was great in these special circumstances. Such a speed in this circumstances was in my opinion on a real sense and not speculative so, potentially dangerous. Likewise I am also satisfied that the defendant failed to give way of which he was supposed to do, resulting in the accident. In apportioning responsibility I consider the apportionment between complainant and the defendant to be 30:70.

The complainant is claiming the cost of anticipated repair costs of his vehicle. Three quotations have been given to court at its request to assist with assessing quantum. Both parties have been given an opportunity to mitigate reasonable repair costs. However on the day of this judgment the defendant has not yet responded and has therefore waived his right to mitigate reasonable repair costs as directed by this Court earlier.

The basic rule in damages for negligence is that the measure of damages in the case of damage to a chattel is the cost of repairs but if it is unreasonable from a business point of view to repair the vehicle or if the vehicle is damaged beyond repair, then the basic measure is the cost of replacement in an available market: see Halsbury's Laws of England (4th ed), Vol 34 par 88 at 72 and cases noted therein.

Hence in the case before I see no problem in assessing the nature of damages based on the rules above, namely the reasonable quote from Ela Motors Limited for K5245.56 to repair. That amount is reduced b)' 30% as I am satisfied that the complainant's driving also contributed to the damage suffered by him. I therefore make orders in the following terms:

(1) Cost of repairs K 5,245.56

(2) Less 30 % (-) 1,573.66

Judgment for K36,71.89

Orders accordingly.