Gipolo v Aeno [2008] PGDC 110; DC796 (30 September 2008)

DC 796

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 322 of 2008

BETWEEN

MARK GIPOLO
Complainant

AND

ROCKY AENO
Defendant

Goroka: M. IPANG

2008: August 07, 14, 19, 25
September 02, 04, 08, 23 & 30

CIVIL LAW- Assessment of damages – Certificate of Conviction presented
– defendant guilty of negligent driving – damage caused to plaintiff’s Toyota Hiace Bus– plaintiff produced three (3) different quotations – the degree of certainty and particularity with which the damage done ought to be stated and proved (Ratcliffe –v- Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524 followed)

Cases Cited:

Livingstone –v- Rawyards Coal Co.[1880] 5 App. Cases 25
Ratcliffe –v- Evans [1892] 2QB 524

References

Nil

Counsels

Complainant: In Person
Defendant: In Person

30 September 2008

JUDGMENT

M IPANG Magistrate: The plaintiff Mark Gipolo sued defendant Rocky Aeno to recover the costs of damage caused to his vehicle, a Toyota Hiace Bus Silver colour, Registration No. PO 392 C. Plaintiff said defendant drove his truck, a Dyna on the 28th of September 2007 at Barola Hill along the Okuk Highlway without due care and attention and as a result, caused this traffic accident.

2. Defendant was formally arrested and charged for negligent driving under section 17 (1) of the Motor Traffic Act. He appeared before Goroka District Court on the 09th of May 2008 and was found guilty. He was convicted and ordered to pay court fine in the sum of K200.00 in default of fine, he would be imprisoned at Bihute Corrective Institution for a period of four (4) months in hard labour. He has paid his court fine. A Certificate of Conviction dated 15th July 2008 was issued by Mr. Bruno Sori, the Registry Clerk In-charge of Criminal Cases.

3. Based on conviction record, the plaintiff sued for damages in the sum of K4, 819,47 for costs of repair and the labour charge, he also ask for interests and costs of this proceeding. Liability is therefore not an issue. The issue is being on the assessment of damages.

4. Matter came before Magistrate Felix Terra on the 07th of August 2008 for mention and he further adjourned the case to the 14th of August 2008 at 9:00 am for mention. Magistrate Frank Manue mentioned this matter on the 14th of August 2008 and further adjourned the matter to the 19th of August 2008 for mention before Magistrate Felix Terra. On the 19th of August, 2008 Magistrate Terra disqualified from presiding over this matter on the reason that he knew one of the parties. I was given this case by Magistrate Terra. I mentioned this case on the 19th of August 2008. I noted on the court file only one quotation was provided. I directed the plaintiff to file two (2) additional quotations from respectable motor vehicle workshops and adjourned this matter to the 25th of August. When the matter came for mention again, plaintiff provided the two (2) quotations as directed by court for him to produce. Defendant told this court that plaintiff’s driver was also cited for reckless driving, by the same court which found him guilty of negligent driving. I adjourned the case to the 02nd of September for trial on assessment of damages.

5. On the 02nd of September, plaintiff called Aron Taylor who was his driver during the accident. Aron gave evidence that on the 28th of September 2007 at around 5:30 am, he loaded passengers bound for Goroka and was traveling up to Goroka. At Barola Hill, he said he was driving on his normal left-lane when defendant drove the Dyna and was on the opposite-right lane also traveling up to Goroka. On negotiating a sharp curved corner, one vehicle drove from Goroka down Lae way. The defendant up on seeing this on-coming vehicle, pulled to my left-lane so suddenly that he bumped him on his left-side crew on the rear side of my bus. In fact the witness said, defendant almost pulled his bus down to the ‘v’ drain.

6. Aron said a police vehicle came and stopped. At Henganofi Police Station, I stopped but defendant did not stop. So, he said he drove up to Goroka Police Station and laid his complaint, which eventually led to the arrest and charge of the defendant.

7. During this hearing, defendant could establish if plaintiff’s driving was reckless. This court was not satisfied that plaintiff’s driver drove recklessly and has contributed his bit to this accident. As it is, defendant’s conviction stands and based up on this conviction, liability is non-issue. The only issue is proper assessment of damages.

8. Proper Assessment of Damages.

Bowen LJ, stated in Ratcliffe –v- Evans [1892] UKLawRpKQB 131; [1892] 2 QB 524 and at pp. 532 – 533 and I quote:

“In all actions accordingly on the care where damage done is the gist of the action, the character of the acts themselves which produce, and the circumstances under which these acts are done, must regulate the degree of certainly and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done.”

9. Plaintiff submitted three (3) quotations. One of the quotations is from Norths Auto Services (Quotation No. 393) dated 11th of August 2008 for the sum of K4, 240.00. The other quotation is from Nuwa Panel Shop (Quotation No. 00000038) dated 11th of August for K3, 775.00 and the final one is from Toyota Tsusho (PNG) Ltd T/A Ela Motors for K4, 819.47. Out of these three quotations, plaintiff decided to pick the highest quote in the sum of K4, 819.47 provided by the Ela Motors (Goroka).

10. From these three quotations, plaintiff need to justify his reason for choosing the amount of K4, 819.47 and living-off the amounts of K4, 240.00 and K3, 775.00. Quotations are as the name says it, they are cost of the scope of work to be done or yet to be done. They are not the actual work done. If the actual work based on quotation has been done, then are Invoices plus the receipts of payment would have been issued.

11. Let me live aside the quotations and I wish to look at the reason for seeking damages. The basic underlying principle on which damages are usually awarded is that the victim as in this case the plaintiff Mark Gipolo should be placed in the same position as he was in before his Toyota Hiace Bus sustained damages by negligent driving by the defendant Rocky Aeno. Loud Blackburn said in Livingstone –v- Rawyards Coal Co. (1880) 5 App Cases 25 at p. 39:

“Where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damage, you should as nearly as possible get at that sum of money which will put the party who has been injured, or he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”

Livingstone’s Case (no doubt sets the yardstick where it) can be used to measure the extent of damages to reparate the wrong. In my view, from the three quotations the amount of K4, 819.47 would be fair and reasonable in the given circumstances. Complainant has serviced his repair using this quotation and the amount.

12. I enter judgment in favour of the complainant in the sum of K4, 819.47 plus 8% interest pursuant to Judicial Proceeding (debts and damages) Act, Chapter 52 and costs. Defendant is given three (3) months from the date of this order to pay in full.

Counsel:
Complainant: In Person
Defendant: In Person