Aukeke v Simon [2008] PGDC 76; DC795 (22 January 2008)

DC 795

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

DCCi 201 of 2007

BETWEEN

POKULE AUKEKE
Complainant

AND

PALA SIMON
First Defendant

GOPSY GOZAPAO
Second Defendant

Goroka: M. IPANG

2007: August 9, 15, 30
October 1, 16, 19
November 02, 22
December 12
2008: January 22

CIVIL LAW- Claim for special damages arising from motor vehicle accident
– Matter set for hearing – No appearance of defendant – Matter proceed ex-parte. Loss of business – whether complainant can claim for such damages.

- Damages – Assessment – Loss of Income – Need for properly certified business records and tax returns – mere assertions and producing a figure on court paper is not sufficient evidence – lack of business records – claim for loss of business can not be sustained. Graham Mappa –v- PNG Electricity Commission (1995) PNGLR 170 followed.

Cases Cited:

Foreign Judgments.

Livingstone –v- Rawyards Coal Co.[1880] 5 App. Cases 25
Ratcliffe –v- Evans [1892] 2QB524

Papua New Guinea.

Koim –v- The State [1998] PNGLR 247
Graham Mappa –v- PNG Electricity Commission [1995] PNGLR 170
Komaip Trading –v- George Wangulo & The State [1995] PNGLR 165

References

John G. Fleming, ‘The Law of Torts’ 7th ed. (1987) Law Book Company Ltd

Counsels

Complainant: In Person

Defendants: Mr. Dennis Umba of Umba Lawyers: Nil Appearances

22 January 2008

JUDGMENT

M IPANG Magistrate: This is a claim for special damages in the sum of K5, 270.25 arising out from a motor vehicle accident which occurred on the 20th of November 2006 at Mambu Market, Goroka, Eastern Highlands Province. The Complainant, Pokule Aukeke claimed that on the date of accident (as stated) he was driving his Mazda Dyna T3500 Registration No. EAE 515 towards Mambu Market from Goroka town. The First Defendant, Pala Simon drove a Toyota Coaster Bus Registration No. P0354A owned by Second Defendant, Gopsy Gozapao. The complainant claimed Second Defendant parked along Mambu Market on the opposite lane dropping off passengers and picking up new passengers going to town. Another PMV Bus was stationary in front of the First Defendant’s vehicle so in an attempt so to pull in to the lane to drive further out to the opposite lane to gain stuffiness/or limited driving space. In the course of so doing, realized complainant’s vehicle already closed in to drove in full further towards the other side in order to avoid collision. The complainant claimed First Defendant’s negligent and dangerous driving by failing to keep proper lookout and give way has caused his vehicle’s collision with the complainant’s vehicle which was in motion and legitimately on his lane.

2. Background to the Nature of Proceeding Leading to Ex-parte Judgment. This was an ex-parte proceeding entered and re-stating of the nature of proceeding leading up to the time when judgment was entered would be most appropriate. The following were the chronological events of the progress of this case:-

1. . Summons and Complaint was filed on the 17th of July 2007, by the Complainant and service was eventually effected.
   
2. This matter was first set for mention on the 09th of August 2007 at 9:00 am. Service of Summons and Complaint was effected on the 23rd of July 2007 and filed on the 25th of July 2007. Complainant appeared in person. Defendants made no appearances. His Worship Magistrate Gerard Vetunawa did not state his reason but disqualified himself from presiding over this matter and adjourned this matter to 15th of August 2007 at 9:00 am for further mention before my court. Defence Counsel file Defendants Notice of Intention to Defend the claim.
   
3. On the 15th of August 2007 at 9:00 am, I was on duty travel to Port Moresby sothe matter went before SPM Mr. M. Gauli. As noted on the Court Record, thecomplainant did not show appearances. Mr. D. Umba made appearances for both Defendants. His Worship Mr. Gauli further adjourned the matter to the 30th of August 2007 at 9:30 am for further mention before me. A Call Notice dated 15th of August 2007 was issued to the complainant to appear on the 30th of August 2007.
   
4. On the 30th of August 2007, at 9:00 am this matter for the first time came before me since His Worship Vetunawa referred this matter to me. The complainant did not appear. Mr. D. Umba for defendants appears, I and seek to have this matter adjourned sine die. I granted Defence Counsel’s application and had the matter adjourned sine die.
   
5. The complainant finding out that the matter was adjourned sine die so applied for the matter to be re-instated. Matter was re-instated and set for mention again on the 1st of October 2007 at 9:00 am.
   
6. On the 1st of October 2007 at 9:00 am, when the matter was called, the complainant appeared but the defendants made no appearances. Matter was stood over to 1:30 pm for mention. At 1:30 pm the Complainant appeared but still the Defendants made no appearances. Matter was further adjourned to the 16th of October 2007 at 9:00 am for Ex-parte Trial. A Call Notice dated 1st of October 2007, was issued to the Defendants advising them of the ex-parte trial.
   
7. On the 16th of October 2007, at 9:00 am the Complainant appears in person. The defendants made no appearances. The court noted on the court record only one quotation was attached. Court directed the Complainant to file his affidavit, plus two (2) more quotations and the Traffic Report on the accident. Matter was further adjourned to the 19th of October 2007, at 9:00 am for further mention.
   
8. Mr. D. Umba from Umba Lawyers for the Defendants appeared on the 19th of October 2007, at 9:00 am. The Complainant made no appearance. Court further adjourned the matter to the 2nd of November 2007, at 9:00 am for further mention.
   
9. When this matter came for mention again on the 2nd of November 2007, at 9:00 am the Complainant appeared in person and Mr. D. Umba for the defendants appeared. Mr. D. Umba served a copy of Defendants’ Notice of Intention to Defend to the Complainant. Court noted that the complainant has yet to comply with court’s direction issued on the 16th of October 2007, to file his affidavit together with two (2) additional quotations. Matter was then further adjourned to the 22nd of November 2007, at 9:00 am for mention.
   
10. On the 22nd of November 2007, at 9:00 am the complainant appeared in person and Mr. D. Umba appeared for the Defendants. Defendants have yet to file their defences. Court adjourned the matter to 12th of December 2007, at 9:00 am for further mention.
    
11. This matter was called on the 12th of December 2007, at 1:30 pm. Both parties did not show appearances. Second Defendant as noticed on the Court File, filed his affidavit dated 12th of December, 2007. Court adjourned this matter for trial on the 22nd of January 2008, at 9:00 am.
    
12. On the 22nd of January 2008, at 9:00 am the matter was called and thecomplainant showed appearance in-person but the Defendants nor their Counsel Mr. D. Umba made no appearances.
    

3. By 22nd of January 2008, it would be the 9th adjournment. Defendants have not even filed their defence as directed by the court. On the 12th of December 2007, at 9:00 am I have set this matter for trial to be conducted on the 22nd of January 2008, at 9:00 am. Since the complainant appears and the defendants made no appearances, court proceeded to determine the matter ex-parte.

4. Complainant Pokule Aukeke’s Case

The complainant was sworn in and gave evidence that he bought his vehicle Madza T3500, Registration No. EAE 515, on the 24th of February 2006. From February 2006 till 20th of November 2006 he operated his truck business. On the 20th of November 2006, the first Defendant Pala Simon negligently bumped the Complainant’s vehicle. He said how the first Defendant bumped his vehicle has been disclosed in his statement of claim. He said the second Defendant Gopsy Gozapao is vicariously liable as he is the owner of Toyota Coaster Bus, Registration No. P0354A, and the employer of the first Defendant Pala Simon. The Complainant also submitted another two (2) quotations bringing the total number of quotations to three (3). These three (3) quotations were obtained from;

(i) Atape Motors Ltd dated 03rd of May 2007 for the sum of K5, 300.00.

(ii) E.D.Z Automative Service Ltd No. 0243 (undated) for the sum of K3, 920.40; and

(iii) Ela Motors (Goroka) No. 09921 dated 23rd of November 2006 for the sum of K5, 270.25.

5. Police Road Accident Report.

Apart from the three (3) above quotations, the complainant has submitted a Police Traffic (Accident) Report. First Defendant was not charged for traffic offence and there was no Certificate of Conviction. The Police description of the accident supported the version of evidence Complainant produced before this court. For whatever reason (unknown to this court) Defendant was not charged for traffic offence. Even though, Police attended the traffic accident scene.

6. First and Second Defendants’ Case.

Both Defendants did not appear so as their Defence Counsel Mr. D. Umba to Defence did not produce any evidence. Apart from filing Notice of Intention to Defend dated 30th of July 2008, defendants did not file their Defence. Under normal practice rule, defendants should have filed their Defence 14 days after filing their Notice of Intention to Defend.

7. Issue(s)

I consider these are relevant issues that I have to solve:

1. Whether the First Defendant Pala Simon was negligent in his driving which caused the traffic accident on the 20th of November 2006?
   
2. If Issue 1, is answered in affirmative, can Second Defendant Gopsy. Gozapao be held vicariously liable for the negligent driving of the First Defendant being his driver (employee)?
   
3. Whether the complainant can successfully claim damages for the loss of Business?
   

8. Findings.

I have considered the evidence presented by the complainant. I am satisfied on the balance of probabilities that First Defendant Pala Simon who drove on the opposite lane dropped-off passengers and picked up passengers, negligently failed to give way and drove on to Complainant’s lane causing collision on Complainant’s Truck a Mazda Dyna T3500, Registration No. EAE 515. The Complainant’s truck was extensively damaged and is currently not on the road. I find Second Defendant Gopsy Gozapao vicariously liable for the negligent driving of First Defendant, his driver and servant (employee). Both Defendants are liable to pay for the damages.

9. Assessment of Damages.

1. Special Damages.
   

The Complainant claimed special damages in the sum of K5, 270.25 for the damage caused to his vehicle Dyna T3500, Reg. No. EAE 515, damages for loss of business in the sum of K1, 500.00 and costs. The amount of K5, 270.25 is based on the quotations supplied by the Ela Motors. He has chosen the Ela Motors quotation as the amount is higher than that of the E.D.Z Automative Service Ltd and has decided to drop the quotation supplied by Atape Motors Ltd for the sum of K5, 300.00. Ela Motors no doubt provides quality service and because of this, Ela Motors were preferred over the others. Plaintiff claimed for special damages on the reason that in special damages the avowed aim is to put the plaintiff in the same financial position he would have been in had the accident had not happened. So, to say plaintiff is entitled to restitution in integrum. Unlike, in general damages, the plaintiff receives compensation and not restitution. See John G. Fleming, ‘The Law of Torts, 7th Ed. (1987) at p. 208. I do allow plaintiff’s claim of damages under the head of special damages as this head of damages is intended to put the plaintiff back to his normal financial position. I would therefore, accept Complainant’s damages claim in the sum of K5, 270.25. I consider this amount to be fair and reasonable.

1.1 Loss of Business.

Apart from his claim for special damages the Complainant claim for loss of Business in the sum of K1, 500.00. The Complainant submitted that after the accident on the 20th of November 2006, he could not do business as his Madza Dyna T3500 Truck was off the road. As a result, the Complainant said he has not made any money. He also claim for the loss of business.

10. Can Complainant Successfully Claim for Loss of Business?

The complainant has not substantiated his claim for the loss of business by producing evidence on his daily transaction on how much does he earn on daily basis. There were no records produced before the court. It is a fundamental requirement for any entrepreneur (business enterprise) involved in modern-type business must have basic book-keeping records in order to claim for such losses. On that basis I refuse to grant order sought for the claim of loss of business, even though the Complainant said he makes in one day around K450.00 to K500.00.

11. However, the Second Defendant Gopsy Gozapao filed a sworn affidavit dated 12th of December 2007. In his affidavit he deposed the following facts that he is the owner of a Toyota Coaster Bus Registration No. P. 0354A and operates a PMV Bus within Goroka town as town bus one (1). In paragraph 3 of his affidavit he stated that, the First Defendant was not his driver. He said his driver was attacked by his wife on the day of accident. He said the First Defendant was driving his PMV Bus without his knowledge and authority when the accident happened. The rest of Second Defendant’s evidence contained in paragraphs 4, 5, 6, 7, 8 and 9 are hearsay evidence as he was not physically present to and witnessed what he deposed happened.

12. Damages are usually compensatory: they are intended to compensate the plaintiff, as far as can be done in terms of money, for the loss he/she has suffered. The normal principle on which damages are awarded is that the plaintiff should be placed in the same position as he was in before he/she suffered wrong. Lord Blackburn in Livingstone –v- Rawyards Coal Co. [1880] 5 App. Cases 25 at p. 39 – gave a good description.

“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”.

13. Almost twelve (12) years later, description given by Lord Blackburn in Livingstone Case was further expounded by Bowen LJ, in Ratcliffe [1982] 2 QB 524 at pp. 532 – 533.

“In all actions accordingly on the case 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 certainty 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.”

14. The Courts in Papua New Guinea have set down minimum requirements for the claim for damages for loss of business. And the condition is that for anyone who operate a modern business, and wish to claim damages for loss of business that is modern day business like trade stores, PMV buses, public transports, kaibar, coffee cherries buying etc... they must comply with the modern laws. In the event, there is loss and if one tries to recover the loss, there is need to produce proper certified business record to prove whether any profit over and above business running costs was earned.

15. Plaintiff Pokule claimed for loss of business in the sum of K1, 500.00. he told this court he makes around K450.00 to K500.00 in one day. Apart from giving these verbal figures, he has not produced any form of evidence to substantiate his claim for loss of business. Applying the minimum requirement for certified business record, it shows the plaintiff has failed to conform to such modern day practice.

16. Injia, J (as he then was) emphasized this minimum requirement in the case of Koim –v- The State [1988] PNGLR 247. His Honour stated, “plaintiffs must actually prove the damage they claim to have suffered in such claims instead of merely providing a list of items and request court to pay damages.”

17. The more relevant case to this case is Graham Mappa –v- PNG Electricity Commission [1995] PNGLR 170. The brief facts of this case are as follows: Plaintiff Graham Mappa claimed for damages for loss of income following damage caused to his Isuzu 25 Seater Passenger Bus. The bus collided with a vehicle owned by the Defendant PNG Electricity Commission. A trial was heard at the National Court N1093 on this claim and an award of K7, 800.00 in damages was made in judgment, Defendant not satisfied with the judgment appealed to the Supreme Court against the assessment of damages.

18. On appeal, the Supreme Court found that the plaintiff did not establish his damages by calling of sufficient evidence. Supreme Court discovered that the only evidence before the National Court was a statement by the plaintiff that his business earned K1, 200.00 per week and did not accept it. The highest court also found there was no documentary on other kind of evidence to establish that fact, apart from some comparison with other similar business run by someone else. There were bank records, tax returns or balance sheets or other kind of evidence and in the Supreme Court held, that was not sufficient to establish the damages in law. The Supreme Court clearly stated:

“if you wish to establish matters like loss of profits from the operation of a modern business, then it is necessary to comply with the modern law, for example, producing such records as are required by the law. If you wish to have the advantages of a modern world of business, then you must comply with modern matters like tax laws. This would require appropriate business records to show whether any profit over and above business running costs was earned. And then, if a profit was earned, there are requirements to pay taxes.”

19. The Courts have been reluctant to award damages in claims not complying with such modern day business practice. Woods, J (as he then was) emphasized once again the need to comply with practice, in Komaip Trading –v- George Wangulo and The State [1995] PNGLR 165 and at p. 168 at I quote:-

“The law is quite clear that, if you wish to operate a modern business you must comply with the modern laws, because it is only by such compliance and the payment of your share of taxes that people have modern world to do business in.”

20. The practice established by the National Court and the Supreme Court in Graham Mappa’s Case (Supra) is to ensure there is no abuse of the court process. It also acts as a safety value to put courts in a clear picture to satisfactorily arrive at proper calculation and eventually award damages for loss of income.

21. Order. (Ex-parte)

I enter judgment in favor of the Complainant in the sum of K5, 270.25 plus the costs of K300.00. Total judgment in the sum of K5, 370.25. I do order that the amount of K5, 370.25 shall be settled in full within two (2) months as from the date of this order.

Counsel:
Complainant Pokule Aukeke: In Person
Defendants & Defence Counsel: Mr. D. Umba – Nil Appearances