Kerua v Sokam [2004] PGDC 34; DC253 (8 July 2004)

DC253

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 637 OF 2005

BETWEEN

Nathan Kerua
Complainant

V

Tamago Sokam
First Defendant

Jes Mechanical & Smash Repairs Limited
Second Defendant

Port Moresby: Gauli, Magistrate
2004: 8th July.

DECISION OF THE COURT

Nature of the Complaint

On or about November 2002, the complainant gave his car, a grey Hyundai Sedan Reg. No. SAA:600 to the defendants for repairs to be done. The defendants towed the said vehicle to their workshop and carried out repairs to its engine. The defendant took the vehicle engine apart but could not repair the fault. The vehicles original parts were removed and the defendants fitted the parts that were different and unreliable. And the complainant claims damage done to the vehicle valued at K5,600.00 and damages for frustration and special damages for disappointment.

The Brief Facts

The complainant owned a car described as a grey Hyundai Sedan Reg. No. SAA:600. The first defendant Mr. Tamago Sokam is the owner of the second defendant company known as Jes Mechanical & Smash Repairs Limited. The said company was registered under the Companies Act 1997 which can sue or be sued under its corporate name and style. The first defendant is a qualified mechanic.

On or about November 2002 the complainant approached the first defendant to repair his car. The first defendant agreed and offered to repair the car at an initial deposit of K600.00. Upon making the initial deposit the complainants car was towed to the defendants workshop at Gordons. The first defendant informed the complainant that the car had engine problem. The first defendant with the assistance of others in the employ of the second defendant took the vehicle apart but did not find the problem. They had difficulty assembling the engine. And when the engine was re assembled the engine could not start.

The complainant was not informed of the progress of the vehicle. The defendants in 2004 moved to another location without notifying the complainant and left the complainant’s car at the old location unattended. The complainant at his own costs and inconvenience moved his car from the old location to the defendant’s new location at Waigani next to the Islands Bakery.

The complainant engaged another mechanic who checked the car at the defendants’ workshop on or about January 2005. He found that the original parts were removed and fitted different parts. Though he could get the engine started, the parts fitted were unreliable. The parts were removed while the car was in the defendants’ yards or workshop. As a result, the complainant made a demand for the defendant to pay for the value of the car at K5,000.00 and the defendants agreed to that demand. The complainant now seeks orders from the Court the value of the vehicle plus the initial deposit of K600.00 and damages for frustration and disappointment.

The hearing of this matter was conducted on trial by affidavits. Both parties provided affidavit evidence and made submissions without proceeding to cross-examinations and re-examination as the parties have decided. The complainant made written submissions while the defendant made oral submission.

The Evidence

The evidence for the complainant is as per the facts above and I need not repeat them. The complainant’s lawyer Mr. George Koi in his affidavit deposited that on the 10th of February 2005, the defendant sought audience with the counsel at the lawyers office. And at that meeting advised that he has received the letter of demand and he needed time to pay the amount claimed.

The complainant’s other witness namely Francis Lesesi, deposed in his affidavit that he is a mechanic by profession. He was engaged by the complainant to recheck the complainant’s vehicle (car) which the defendant had not been able to fix it. He deposed that from his checks he found that the parts were missing and a lot of change was done to the vehicle. He deposed that the engine was changed and replaced with a Mitshubishi Lancer engine, battery and the tyres were missing, tail light bulbs and the electrical fuse missing, carburetor was changed and replaced with a Mitshubishi lancer carburetor and the same with the starter motor which was not working. When he (Francis) inquired of the missing parts he said he was not sure where he kept them. The vehicle was beyond repair so he advise the complainant to just sell the vehicle to the defendants.

The defendants in his affidavit evidence admitted working on the said car and the K600.00 initial deposit from the complainant. He deposed that the vehicle had a problem with its head gasket and piston arm. He further deposed that the complainant told him that two (2) other professional mechanics had worked on the vehicle but did not find those faults on the head gasket and the piston arm. From his 20 years of mechanical experience it only required the head gasket and the piston arm parts to get the engine running. For the 8 months he could not find the required part and the complainant never showed up. So in early 2003 the defendant was evicted out of the premises by the landlord at short notice. So he changed location leaving the complainant vehicle behind. Then in early 2004 the complainant moved the vehicle to the defendant’s new location at section 36 allotment 6 Crowthorn Street, Hohola. The defendant bought new parts and fitted them into the engine and only needed fuel to get it started.

From the evidence as presented, this Court find that:-

1. The defendant in November 2002 agreed and received the complainant’s vehicle a Hyundai Lancer Sedan Reg. No. SAA:600 to carry out repairs on it.

2. The defendant received the initial deposit of K600.00 from the complainant before work be done.

3. The said vehicle had engine problem and it was towed to the defendants workshop at Gordons. The defendant could not fix the vehicle quickly due to the parts not been available.

4. When the defendant got evicted, he moved to a new location at Waigani / Hohola in 2004, he left the vehicle at the old location.

5. Some of the parts were missing and a completely different engine was fitted in namely the Mitsubishi Lancer engine.

6. The complainant had to tow the vehicle to the defendants new location in January 2005.

The vehicle had been so much tampered with while in the custody of the defendant that the best the complainant could do is to sell it to the defendant. He valued the vehicle at K5,000.00. The defendant has 20 years of mechanical experience. And he claimed that the only problems with the engine were the head gasket and the piston arm. Yet he went ahead and installed a completely different engine of a Mitshubishi Lancer. The defendant in his oral submission said that the vehicle’s engine is up and running and he will sell it for K5,000.00 and pay the complainant. From this note I take it that the defendant has agreed to the value of the vehicle at K5,000.00 for him to pay the complainant.

Apart from this the complainant is claiming damages in the sum of K3,000.00 for frustration and disappointment. The vehicle was in the defendants workshop and custody from November 2002 to have it repaired. He could not repair it. When the defendants moved his workshop to a new location in2004, he left the complainant’s vehicle in their old location until in January 2005 the complainant at his own expenses towed the vehicle to the defendants new location for repairs to be done. Surely for over two years of waiting to have the car repaired must be very frustrating and disappointing as he has been denied the use of his vehicle.

The law had been settled in our jurisdiction for the Courts to award damages for mental distress, frustration and disappointment especially in breach of contract cases. The starting point is the case of Brian Hodson -v- The State [1985] PNGLR 303. However on appeal the Supreme Court referfed back to the National Court for re-assessment of damages.

In the case of Harding -v- Tepori Timbers Pty Ltd [1988] PNGLR 128, the late Chief Justice Sir Buri Kidu set out the history of the development of the law on award of damages on frustration, distress and disappointment and awarded a nominal amount of K1,000.00 and His Honour said:-

"So in view of this meager evidence of distress etc, I consider that the plaintiff should be entitled to a nominal sum and this I calculate as K1,000.00, a sum similar to 500 pounds so far awarded in the English jurisdiction. I think it should be stated that the more serious and intense the degree of mental distress and frustration is the higher the amount of damages that will be awarded".

And in adopting this case precedent, His Honour Justice Sevua awarded K10,000.00 in the case of The Commissioner of Internal Revenue -v- Julian Paul Leach N1779 where he considered that the stress and anxiety the plaintiff suffered over five (5) years was quite intense. His Honour in agreement with late Sir Buri Kidu in the Harding -v- Teport Timbers Pty Ltd (above) that the more serious and intense the degree of mental distress and frustration, the higher the amount of damages to be awarded, he said:

"I agree with that approach. I consider that in this case, the stress and anxiety suffered over five years and six months was quite intense and the award for mental distress should be higher than the nominal sum of 1,000.00. I consider that a figure of K10,000.00 for damages for mental distress is fair in the circumstances".

In our present case the complainant has suffered mental distress and frustration for over two years eight months. He has lost the quiet enjoyment of the use of his car. And he refused to take the vehicle back, even though it is up and running, because the engine has been so much tampered by fitting a completely different engine without the complainant’s consent. And I consider that a sum of K2,400.00 would be a fair amount as damages for mental distress, frustration and disappointment.

And this Court orders that the defendants to pay the complainant the following in damages:-

1. A sum of K5,000.00 in general damages for the loss of the vehicle for tampering its engine.

2. A sum of K2,400.00 in damages for mental distress, frustration and disappointment.

3. The sum of K600.00 as refund for the initial deposit made.

And this Court enters the judgement in favour of the complainant in the sum of K8,000.00 plus interest at 8% per year and costs. The total amount to be paid within 30 days from the date of this Order.

Ordered accordingly.

Mr. George Koi Lawyers: Complainant
In Person: Defendant