Ora v Qun [2011] PGNC 273; N5344 (20 January 2011)

N5344

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 495 OF 2008

BETWEEN:

KARI ORA
Plaintiff

AND:

ZHANG ZHONG QUN
Defendant

Waigani: Hartshorn J.
2010: 20th July,
2011: 20th January

Trial – Assessment of damages

Cases cited:
Papua New Guinea Cases

John Tuink Salaman v. State (1994) PNGLR 265
Jonathan Paraia v. State (1995) N1343
Pama Anio v. Aho Baliki (2004) N 2719

Overseas Cases

Barker v. Furlong [1891] UKLawRpCh 55; [1891] 2 Ch 172
Biggin & Co Ltd v. Permanite Ltd [1951] 1 KB 422

Counsel:

Mr. A. Token, for the Plaintiff

20th January, 2011

1. HARTSHORN J: The vehicles of the parties collided on the Magi Highway in February 2008. Each party claims that the other was at fault and they both claim damages.

2. The hearing before me was the trial of the proceeding. The defendant was not present and there was no appearance on his behalf. As I was satisfied that the defendant had been informed of the date and time of the trial, the hearing proceeded in the absence of the defendant or any representation on his behalf.

3. Where a defendant does not make an appearance at trial, the plaintiff may prove his claim so far as the burden of proof lies upon him. The proof required is limited to the matters pleaded: Barker v. Furlong [1891] UKLawRpCh 55; [1891] 2 Ch 172.

4. The plaintiff relied upon 7 affidavits. After perusing the affidavits I am satisfied that the plaintiff has sufficiently proved the matters pleaded in his amended statement of claim. I find that the collision between the parties' vehicles was caused by the negligence of the defendant and that the defendant is liable to the plaintiff for the damage caused as a consequence.

5. As to the cross-claim of the defendant, as there is no appearance by him, the plaintiff is entitled to judgment dismissing the cross-claim.

Damages

6. The plaintiff has put into evidence the estimate of repairs required to his vehicle, an Izuzu truck, from Boroko Motors Ltd. The estimate is for K 47,795.15. The plaintiff has also put into evidence the receipts for the payments that he made. There is also an affidavit from the panel manager of Boroko Motors Ltd who deposes to providing the estimate of repairs, that repairs were effected and that the repairs were paid for by the plaintiff. I am satisfied that the plaintiff has proved the cost of repairing the damage to his truck in the sum of K 45,883.40.

7. The plaintiff claims consequential loss as a result of not being able to operate his vehicle as a Public Motor Vehicle during the period that the vehicle was being repaired from 10th February 2008 to 25th June 2008. He has put into evidence his PMV licence, a certificate of registration of business name and an extract showing that he is the owner of the business name. He further deposes that the total income he would have earned during this period but did not was K 98,000.00.

8. The plaintiff has not however, put into evidence any documentation to substantiate his income such as books of account and taxation returns. Such evidence is required as noted in John Tuink Salaman v. State (1994) PNGLR 265. Where the evidence is not available, the court must do the best it can on the evidence put before it: Biggin & Co Ltd v. Permanite Ltd [1951] 1 KB 422 and Jonathan Paraia v. State (1995) N1343.

9. On the evidence of the plaintiff, my calculation of the maximum he could have earned during the period that the Izuzu truck was not able to be used is K 81,900.00 being K700.00 a day x 117 days. Taking into account exigencies and the lack of proper business records, I reduce the amount of damages to which the plaintiff is entitled under this heading to K 70,000.00

10. The plaintiff also claims K 15,000.00 for frustration, distress and anxiety. In this regard I refer to the case of Pama Anio v. Aho Baliki (2004) N 2719, in which Kandakasi J. expressed the view that for claims for damages for distress and frustration, there should be proof of damage or the negative mental or physical impact on the claimant, by appropriate medical or other evidence. I respectfully agree with His Honour's comments. In this instance there is no medical evidence or to my mind, other sufficient evidence. I refuse to award any amount under this heading.

Special damages

11. The plaintiff claims reimbursement for the costs of towing the Izuzu truck. There are no receipts in evidence. The amount claimed in the amended statement of claim is K1,150.00 but the amount referred to in the plaintiff's submission is K 1,500.00. I am not satisfied that either of these amounts was actually incurred. The claim is also made for the cost of the accommodation and transport of the plaintiff's driver, 2 crewmen and a witness. Again no receipts are in evidence and further, I am not satisfied that this is an expense that arose as a consequence of the collision. This claim is also refused.

12. The plaintiff is entitled then, to damages in the sum of K 45,883.40 and K 70,000 as referred to, together with interest and costs.

Orders

13. The formal Orders of the Court are:

a) judgment is entered for the plaintiff against the defendant on the amended statement of claim in the sum of K 115,883.40 together with interest at the rate of 8% per annum from the date of issue of the writ of summons until payment of the judgment sum and interest thereon.

b) the cross-claim is dismissed

c) the defendant is to pay the plaintiff's costs of and incidental to the proceeding.
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Rageau Manua & Kikira Lawyers: Lawyers for the Plaintiff