Mosan v Magalu [2006] PGDC 5; DC335 (27 January 2006)

DC335

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE 2613 OF 2005

BETWEEN

James Mosan
Complainant

V

Jerry Magalu
Defendant

Port Moresby: Bidar, Pm
2005 13th December
2006 4th, 18th & 27th January

Damages –
Property damages-
Damages to motor vehicle –
Liability –
Damages-
Requirement to prove damages-
Assessment of-
Judgment for complainant.

Cases Cited
Livingstone –v- Rawyard Coal (1880) App cas. 25 at 39.
Peter Wanis –v- Fred Sikiot & The State N1350
Abel Kopen –v- The State N779

Text
McGregor on Damages (Sweet and Maxwell 13th Ed. 1972, London)

Counsel
Y. Kaumba for complainant
Defendant appeared in person

DECISION

27th January 2006

BIDAR, PM: This a claim for damages as a result of an incident involving the complainant’s motor vehicle., Hyundai Sonata Sedan, Reg. No. AGM. 973, the defendants motor vehicle, Isuzu Utility, Reg No. BAM. 214 and Bank South Pacific Security vehicle, Nissan Sunny Reg. No. BAJ 697 on 20 December 2003 along Koura Way traffic lights. At the traffic lights the complainant’s vehicle came to stop as the red lights were illuminating. In front of complainant’s vehicle was another vehicle a BSP Security vehicle, which I referred to. As the complainant waited for green lights to come on, he noticed an approaching vehicle from behind and he expected it to come to a stop, but the vehicle which he later identified as the one driven by defendant collided into the rear of his vehicle. The impact caused his vehicle to move forward thus colliding into the rear of the vehicle in front of him, which I referred to as the BSP Security vehicle.

Liability having been found the case comes before me for hearing on assessment of damages.

The complainant’s motor vehicle as I referred to a Hyundai Sonata Sedan, Reg. No. AGM. 973 maroon. It is not known what the value of the vehicle was at the time of the incident. There is also no evidence to show what the purchase price was when complainant bought the vehicle. It is also not known, whether it was an out right purchase or finance arranged and for that matter any insurance (comprehensive).

Complainant claims for damages to the motor vehicle, loss of enjoyment of use of vehicle, special damages and damages for shock.

The general principle is that, when a court is considering whether or not damages should be awarded, was stated by Lord Blackburn in Living stone –v- Rawyards Coal (1880) 5 appeal cases 25 at 39:

"When an injury is to be compensated by damages, in settling the sum of money to be given for .....damages you should as nearly as possible, get at that sum of money which shall put the party who has been injured or who has suffered, in the same position as would have been if he had not sustained the wrong for which he is now getting compensation".

In McGregor on Damages (Sweet and Maxwell, 13th Ed. 1972 London), the learned author puts the same principle in another way at p. 935.

"The plaintiff has the burden of proving both the fact and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person’s case, the proof of such allegation falls on him. Even if the defendants fails to deny the allegations of damages or suffers default, the plaintiff must still prove his loss."

These principles apply in our jurisdiction by virtue of schedule 2.2 of Constitution as at Independence on 16th September 1975.

In Peter Wanis –v- Fred Stkiot & the State N 1350, Woods J (as he then was) said at p.1:

"While the State has failed to present any evidence disputing the general claim, it is still necessary for the plaintiff to produce appropriate evidence before the court to support the quantum of the claim."

In Abel Kopen –v- The State. N. 779 30th October 1989, on a claim for damages for loss of plaintiffs PMV, which was a 25 seater bus, Judgment in excess of K8, 000.00 was entered for the plaintiff.

In the present case, I have considered whole of the evidence and submissions by both the complainant and the defendant, one of the principles, which applies when considering damages to be awarded is that complainant, should take steps to mitigate his loss. If complainant has done nothing and allows his losses to maximize the court should not sanction that.

There does not appear to be any rule of law, which makes the defendant liable for anymore than cost of repairs. Damages should be limited to cost of repairs.

In all the circumstances, I assess a sum of K7, 000.00 for mechanical repairs labour and parts. I award no damages for loss of use and enjoyment of vehicle. I award a sum of K600.00 for special damages. I award no damages for shock, for which relevant evidence is required.

I therefore, order Judgment for complainant in the sum K7, 600.00. I allow interest at 8% from date of summons to Judgment. Complainant shall have his costs paid by defendant.

Kennas Lawyers and Notaries: Complainant
In Person: Defendant