Tikau v Dumbrang [2009] PGDC 80; DC1011 (21 January 2009)

DC1011

PAPUA NEW GUINEA
IN THE GRADE V COURT OF CIVIL JURISDICTION

Case Number DCC 285 of 2008

BETWEEN:

SAM TIKAU
(Complainant)

AND:

CHRIS DUMBRANG
(Defendant)

MADANG: M SELEFKARIU, PM
2008: 17 December
2009: 15-21 January

CIVIL: Motor vehicle accident-Tort of negligence-Defendant’s negligent driving caused damage to complainant’s vehicle at the cost of K8, 353.00- Complainant also claims general damages for K1,647.00 with total claim of K10,000.00- Criminal liability established as defendant pleaded guilty and was convicted on 26 April 2005-Defendant did not contest both liability and quantum of damages- Evidence through affidavit only from complainant’s side as defendant although duly served the processes did not mount a case.

CASES:
None

Counsel:
Mr. T Ilaisa for Complainant.
Defendant did not make appearance at all.

21 January 2009

SELEFKARIU, PM: This complaint was filed on 1 October 2008 alleging that the defendant drove another vehicle along the Modilon Road and near the Handy Mart Service Station he did not keep proper look out for the other passing vehicles and as a result his vehicle hit the complainant’s vehicle causing extensive damages. The cost of repairing the damage was estimated at K8, 353.00 for which the complainant claims as special damages and also claims K1, 647.00 general damages making his total claim stands at K10, 000.00.

As a result of the accident police charged the defendant under section 17 (2) of the Motor Traffic Act. He pleaded guilty, was convicted and ordered by the court to pay a fine of K200.00.
The record of conviction is documented and evidenced through a copy of the certificate of conviction issued by the clerk of court on 26 April 2005.

The presiding Magistrate then sitting as a criminal court of the District Court when passing sentence also ordered that whatever the cost of the repairs for the damage the defendant bears 80% of it.

With respect to my brother Magistrate, in my opinion may have jurisdiction to order compensation (see Criminal Law (Compensation) Act) but failed to subject his mind to section 21 of the District Courts Act, the monetary jurisdictional limit of the District Court’s civil jurisdiction. I think he also fell into error when he ordered that the defendant was liable to pay 80% of the total damages a decision which is based on assumption and not based on material evidence.

It is common knowledge that for every crime there is criminal liability and civil liability.

In saying this I think we ought to also bear in mind that criminal liability and civil liability are not the same thing.

For the issue of civil liability in relation to the defendant’s wrong I think this present court is the proper constituted court where the parties are given the opportunity to properly put their cases before court and for the court to make final determination as regards liability and damages.

As a matter of interest the present complaint which arose from the traffic accident finally reaches the court some three years from the time of the conviction of the defendant for which the total claim stands at K10, 000.00.

The presiding Magistrate then, presiding over the criminal case could only hear civil claims up to K8, 000.00.

With respect, I find that the Magistrate then acted outside his jurisdiction when determining civil liability and going on to assess damages as he did.

Having said this, I am of the view that the decision made by my brother Magistrate then, as in reference to civil liability and damages is not binding on me exercising the civil jurisdiction of this court, the Grade Five Court which clearly has jurisdiction.

The main issues regarding the claim are:

1. Is the defendant liable for the damaged done to the complainant’s vehicle?

2. If so how much damages the defendant is to pay?

On the first issue I find that there is little or no weighing of evidence to do at all as the defendant did not mount any defence nor put a shred of evidence before court even though he was duly served with all the processes.

The evidence shows clearly that the defendant has pleaded guilty to the charge for negligent driving before the criminal court.

In my view this could be the reason for the defendant’s non-appearance as he would have thought that because he has been found guilty in a criminal case he is liable to pay for the damages.

In that regard I answer issue one in the affirmative and find the defendant liable for the damaged done to the complainant’s vehicle.

In relation to the second issue again there is no contest as the defendant fail to mount a case on this issue.

The only evidence before me is the evidence of the complainant who says the estimated cost of repairs is K8, 353.00.

At this stage I am not sure if the complainant has repaired his vehicle and paid for the cost out of his own pocket.

But since the time of the accident to the time of filing of this complaint it has taken the defendant more than three years to pay for the damages. Without any defence being mounted it appears most probable that the defendant has not shown any interest to pay for the cost of repairs which resulted from his own negligence.

Such as the case the complainant also claims general damages for K1, 647.00 amplifying his total claim to K10, 000.00.

In the complainant’s submissions they submitted that as a result of the defendant’s negligence the complainant also suffered loss of business from his public motor vehicle operation.

On this sub issue I find no evidence as to the records of accounts, bank statements, ledgers etc suggesting that the complainant operates such business and suffers from defendant’s negligence.

The complainant’s claim for general damages I think is not based on loss of business but on the inconvenience he has to endure as a result of the defendant’s negligence and compounded by the defendant’s refusal to assist him mitigates his losses.

Without any rebuttal evidence I do accept the complainant’s evidence as to the cost of repairs and the claim for general damages for which I find both of them quite reasonable.

Accordingly I award damages to the complainant in the sum of K10, 000.00 with interest at 8% to be calculated from the time of filing of complaint to judgement, pursuant to Judicial Proceedings (Interest on Debts and Damages) Act.

Cost is also awarded to the complainant.

_____________________________________________________________________
Lawyers for Complainant: Thomas More Ilaisa Lawyers & Attorneys
No legal representation & no personal appearance of the Defendant