Maip v City Pharmacy Ltd [2008] PGDC 160; DC5011 (16 April 2008)

DC5011
PAPUPA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

Civil Jurisdiction

DC. N0. 24 OF 2008

JOHN MAIP

Complainant
-v-

CITY PHARMACY LIMITED

1^st Defendant

JOCKY TOANE

2^nd Defendant

Port Moresby: Pupaka, PM

2008: 16^th April

The Complainant in person
No appearance by or for the Defendant

16^th April 2008

PUPAKA, PM: This case was fixed for hearing ex parte today as a result of the continued absence of the defendants because the proceeding appears to have been properly served on the defendants. There is neither a defence nor appearances recorded for the latter.

The case is about a claim by the complainant against the defendants for damages occasioned upon his “brown and white Toyota coaster 25-seater PMV bus bearing registration number P.217C” in a road accident on 21^st November 2007, which was caused by the 2^nd defendant who was then driving a Mazda truck, bearing registration no. BBQ. 278. The 2^nd defendant was an employee of the 1^st defendant who owns that Mazda truck. The 2^nd defendant was arrested and charged for driving without due care and attention and he was subsequently convicted and fined K100.00 by the Waigani District Court on 30^th November 2007.

This preceding is based on the conviction recorded against the 2^nd defendant. There is a major presumption here which is that the 2^nd defendant was acting for the 1^st defendant at the relevant time.

A written notice from the Clerk of Court, of today’s hearing, seems to have been served on the defendants. Yet the defendant’s have failed to attend for the hearing, just as they had for the previous mentions of the matter. Therefore the complainant was granted leave to present evidence ex parte. Consequently he tendered into evidence just one affidavit and closed his case.

Complainant’s Case

To facilitate a speedy hearing the complainant was directed to file his evidence by way of affidavits. He had filed one affidavit already, prior to the date of the direction on 4^th April 2008, which is dated 3^rd April 2008. Having briefly perused that affidavit I intimated to the complainant that he needed to file better and fuller evidence for today’s purposes. He was fully advised that his affidavit of 3^rd April seemingly contained, suspected (trumped up) quotations that appeared to be created by the same person, using a single Invoice Book, purchased no doubt from a bookstore. A couple of those quotations are referred to as emanating from sources that would or should have their own logo and personalized invoice or docket forms, which could be generated from sales counter computers or printed to order. They would normally issue something better than a hand written, off the self, standard “Olympic” or other brand name stationary. Even then the complainant must have the originals of these documents but he had failed to attach them for viewing

In the light of this the complainant was directed to file credible evidence than he had filed thus far. Unfortunately he has not done that. In fact his single affidavit only contains quotations. Even if these quotations, questionable as they are, were to be accepted, they cannot go to show how much it cost the complainant to repair the damage. What is needed is evidence of real expenditure. Copy of a paid up invoice would be one example of that kind of evidence. Quotations are only costs quotes for work yet to be done. They are no more than estimates of how much a repair work may cost if the work of fixing is given to the person or entity submitting the quote.
Moreover the complainant does not say whether he engaged any one of the entities which quoted for the repair job and whether repair was done and, more importantly, whether work was paid for and if so how much the actual repair bill was.

In the circumstances I do not think it is fair on the defendants for the Court to blindly accept what is tendered, particularly not when there are doubts being created on the face of these things. It matters little that the defendants are not in court as a matter of choice. For in the end, it is really about granting the complainant that which he has proved as being due to him in accordance with the law. The complainant is obligated to prove his damages and losses. In Court nothing is presumed when it comes to matter like these.

Quantum Meruit

By the operation of this principle the complainant has earned the right to be compensated for repairing the damages occasioned to his vehicle. He is entitled to sue for an ascertained sum for the actual repair costs, but that is not possible for the reasons given above. Nevertheless he can expect the Court to assess a suitable amount on a quantum meruit bases. And I intend to do just that.

In order to assess an appropriate amount on this basis I must accept the quotation of K6220.00. It does appear to be the lowest of the three quotations submitted but it is the only one that discloses description of the work to be done on the vehicle and the unit prices of the replacement parts, whereas the other two quotations do not. Therefore I cannot accept the other two quotations.

The quotation that I do accept does not say, just as the complainant has no other evidence, of what the unit prices quoted are for. He does not say whether these are off the self brand new parts or used parts. The difference is pivotal and so would the evidence on it be. Yet there is no evidence on this.

The defendant is obligated to pay for the use of used parts. It may have to pay for new parts if no used part could be found. Of course before the defendant is compelled to so pay the complainant must prove that no used part is available or could be located. However the complainant has failed to say whether the parts referred to here are used parts or new parts.

Therefore, accepting the adage “it is better to be safe than sorry” to be an appropriate caution in the circumstances I consider that there is a valid need for the Court to make allowances for the possibility that finding replacements and carrying out repairs would have been otherwise cheaper. After all, the complainant was advised to produce the evidence but he did not.

In relation to the other heads of charges that could be levied in a workshop, I think it is also standard cautionary practice to consider that the costs of labour would be cheaper. Again if this head of claim was an actual recovery, based on actual expenditure, the situation would be different. However the best and only evidence available to this Court is just approximate, would be (quoted) charges.

I would therefore generally allow a reduction, for any likely contingencies, of 35%. In situations such as this, particularly in the context of an ex parte hearing, making allowances for contingencies is imperative. Again it bears repeating that the complainant could have easily prevented allowances for contingencies by adducing sufficient relevant evidence.

Lost of Business & Claim for Costs

Claim for lost of business was consciously pleaded for a sum of K540.00. In the course of the proceeding, prior to hearing, the complainant was advised to furnish evidence of his earnings on a daily bases. It was intimated that he may produce evidence of daily or weekly banking. He failed to disclose things like bank statements or tax declaration forms or anything like that to attach credence to his claim for loss of business. In the end I would dismiss that head of claim as being not proved at all.

On the claim for the so called related ‘costs’, I find no prove of them. It is just unclear what these are for. The defendant shall draw benefit from the lack of clarity and doubt. The costs of prosecution are of course another matter. The latter are disbursements.

Conclusion

In all the circumstances I consider that a good starting point for a fair assessment is the fuller quotation of the three tendered. That quotation is the one for a sum of K6220.00.

I would, for the reasons given, subject this figure (of K6220.00) to a reduction of 35% to allow for contingencies in the following way.

Appropriate starting point for repair of damages: K6220.00
Less 35%: K2177.00
Most probable costs of repair: K4043.00

I would consequently enter judgment for the complainant in the sum of K4043.00 against the defendants. There shall be interests at the statutory 8% paid on that from the date of summons to the date of settlement. The complainant shall have his nominal costs of this case.

_______________________________________________
The Complainant in person
No appearance by the Defendants