Dae Won Trading Ltd v Duma [2011] PGNC 87; N4356 (14 January 2011)

N4356

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 996 OF 2006

BETWEEN:

DAE WON TRADING LIMITED
Plaintiff

AND:

ARIS DUMA
First Defendant

AND:

WAGI VALLEY TRANSPORT LIMITED
Second Defendant

Waigani: Hartshorn J.
2010: 9th July,
2011: 14th January

Assessment of damages

Facts:

This is a hearing for an assessment of damages. The claim is for the loss of the plaintiff's flour that was being transported from Lae to Mount Hagen in the second defendant's truck. The first defendant driver fell asleep, an accident occurred and the plaintiff's flour was lost as a consequence.

Held:

The plaintiff has not properly proved its loss. No award of damages is made. The costs of the defendants' of and incidental to the assessment of damages are to be paid by the plaintiff.

Cases cited:
Papua New Guinea Cases

Yange Lagan v. State (1995) N1369
Jonathan Paraia v. State (1995) N1343
Albert Baine v The State (1995) N1335
Kopung Bros Business Group v Sakawar Kasieng [1997] PNGLR 331
Tabie Koim v State [1998] PNGLR 247
Kolaip Palapi v Sergeant Poko (2001) N2274
Yooken Pakilin v State (2001) N2212
William Mel v Coleman Pakalia & Ors (2005) SC790
Rabaul Shipping Ltd v Peter Aisi (2006) N3173

Overseas cases

Biggin & Co Ltd v. Permanite Ltd [1951] 1 KB 422

Counsel:

Mr. A. Chillion, for the Plaintiff
Mr. R. J. Mann-Rai, for the Defendants

14 January, 2011

1. HARTSHORN J: The plaintiff's flour was being transported from Lae to Mount Hagen in the second defendant's truck. While the first defendant was driving the truck, he fell asleep and an accident occurred. The plaintiff's flour was lost as a consequence and this proceeding was issued seeking damages.

2. Default judgment was ordered on 21st May 2009 with damages to be assessed. The hearing before me was for an assessment of those damages.

Assessment of damages – law

3. The Supreme Court in William Mel v. Coleman Pakalia & Ors (2005) SC790 stated:

"The principles that apply to a trial on assessment of damages following entry of default judgment were summarised by Kandakasi J. in Coecon Ltd (Receiver/Manager Appointed) v National Fisheries Authority (2002), National Court, N2182.

His Honour stated:

A survey of the authorities on assessment of damages after entry of judgment on liability mainly in default of a defendant's defence, clearly show the following:

1. The judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim.

2. Any matter that has not been pleaded that is introduced at the trial is a matter on which the defendant can take an issue on liability.

3. In the case of a claim for damages for breach of contract as in this case, such a judgment confirms there being a breach as alleged and leaves only the question of what damages necessarily flow from the breach.

4. The plaintiff in such a case has the burden to produce admissible and credible evidence of his alleged damages and if the Court is satisfied on the balance of probabilities that the damages have been incurred, awards can be made for the proven damages.

5. A plaintiff in such a case is only entitled to lead evidence and recover such damages as may be pleaded and asked for in his statement of claim.

The Supreme Court adopted and applied those principles in Papua New Guinea Banking Corporation v Jeff Tole (2002) SC694, Amet CJ, Sheehan J, Kandakasi J.

Kandakasi J. applied those principles recently in the National Court in Desmond Huaimbukie v James Baugen (2004) N2589. We believe His Honour succinctly and correctly stated the law. We elaborate on the first principle by saying that once default judgment is entered, the facts as pleaded and their legal consequences in terms of establishing the cause of action as pleaded must be regarded as proven. (See Keith Reid v Murray Hallam and Allcad Pty Ltd (1995) N1337, National Court, Kapi DCJ and Andale More and Manis Andale v Henry Tokam and The State (1997) N1645, National Court, Injia J.)........................

Turning back to the issue raised above as to the role of the trial judge after entry of default judgment, we consider the following to be the correct approach:

the trial judge should make a cursory inquiry so as to be satisfied that the facts and the cause of action are pleaded with sufficient clarity; if it is reasonably clear what the facts and cause of action are, liability should be regarded as proven; only if the facts or the cause of action pleaded do not make sense or would make an assessment of damages a futile exercise should the judge inquire further and revisit the issue of liability."

The claim

4. From a perusal of the statement of claim, it is accepted as proved that amongst others, the flour was lost as a result of the accident, the accident was caused by the negligence of the first defendant in the course of his employment by the second defendant and the second defendant is liable to compensate the plaintiff for the loss of the flour.

5. I am satisfied that the statement of claim properly discloses a cause of action in tort for negligence and that the second defendant is vicariously liable for the negligence of its employee.

Damages

6. I now must determine whether the plaintiff has sufficiently proved the damages that it claims.

7. The plaintiff claims damages in the sum of K 55,511.39 for the loss of its goods, and costs. It relies upon the affidavit of Mr. Kevin Yore, an employee of the insurer of the plaintiff. Counsel for the defendants objected to the use of the affidavit and its content on the basis that certain parts of the evidence is hearsay and opinion. It was submitted that the statements made by Mr. Yore are based on an assessment report prepared by a third party and there was no direct evidence to verify or corroborate the report.

8. Counsel for the plaintiff submitted that the evidence was not hearsay as Mr. Yore had direct knowledge of the money that was paid by the plaintiff's insurer to the plaintiff. I allowed the affidavit into evidence on the basis that I would assess the appropriate weight if any, to be accorded to the evidence, in due course.

9. Upon a perusal of the affidavit, it is clear that much of the evidence as to the loss suffered by the plaintiff is outside the personal knowledge of Mr. Yore. Notwithstanding that it is apparent that the plaintiff's insurer is exercising its rights of subrogation, the loss to be proved is still that of the plaintiff and not the plaintiff's insurer.

10. As to the evidence that this court should accept in the proof of damages, in Yange Lagan v. State (1995) N1369, Injia J (as he then was) said:

"In my view, the minimum requirement in any action is for the plaintiff himself to give admissible evidence in support of his claim....... When the primary evidence of the plaintiff is lacking, there is a serious gap in the plaintiff's case, all other evidence being inadmissible as being hearsay or hearsay upon hearsay."

11. Yange's case (supra) has been cited with approval in numerous other cases including Tabie Koim v. State [1998] PNGLR 247, Kolaip Palapi v. Sergeant Poko (2001) N2274 and Yooken Pakilin v. State (2001) N2212.

12. In Rabaul Shipping Ltd v. Peter Aisi (2006) N3173, Lay J (as he then was), entirely agreed with Injia J's "minimum requirement" observation but added that where a plaintiff is a company it can only give evidence by its officers and employees.

13. Here the evidence given by Mr. Yore is the only evidence relied upon by the plaintiff to prove its loss. In Jonathan Paraia v. State (1995) N1343, Injia J referred to the following observation of Devlin J in Biggin & Co Ltd v. Permanite Ltd [1951] 1 KB 422 at 438:

"Where precise evidence is obtainable, the Court naturally expects to have it (but) where it is not, the Court must do the best it can."

14. In this instance it is apparent that the evidence required was available, but was not presented to this court in the appropriate way. This is notwithstanding amongst others, that the defendants had given a notice of objection to the use of the affidavit almost three months before the hearing date.

15. In the circumstances, I am not inclined to attach much weight to the evidence in the affidavit, given that the material parts concerning the loss suffered are based upon hearsay and opinion. As mentioned there is no other evidence relied upon to prove the loss that the court may take into account to do "the best it can."

16. As to the corroboration of evidence in relation to the proof of damage, there are numerous decisions in this jurisdiction concerning its desirability. These decisions include: Albert Baine v. The State (1995) N1335, Kopung Bros Business Group v. Sakawar Kasieng [1997] PNGLR 331 and Yange's case (supra)

17. Consequently, I am not satisfied that the plaintiff has properly proved its loss. I refuse to make any award of damages in favour of the plaintiff. The costs of the defendants' of and incidental to the assessment of damages are to be paid by the plaintiff.

_____________________________________
O'Briens Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for the Defendants