Guasilu v Enga Provincial Government [2012] PGNC 99; N4774 (24 August 2012)

N4774

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1210 OF 2006

DESMOND GUASILU
Plaintiff

V

ENGA PROVINCIAL GOVERNMENT
First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Cannings J
2012: 16 March, 5 April, 24 August

DAMAGES – negligence – assessment of damages after entry of default judgment – motor vehicle accident – damages claimed for vehicle repairs, business losses and pain and suffering.

A vehicle owned by the first defendant and driven by its agent collided with a bus, a profit earning asset, owned by the plaintiff, causing damage to the bus. The plaintiff commenced a negligence action and succeeded in establishing liability against the first defendant by default judgment. At a trial on assessment of damages the plaintiff claimed three heads of damage: cost of repairs, K15,917.61, business losses, K763,363.47, and pain and suffering, unspecified, a total claim of K779,281.08 plus the unspecified sum for pain and suffering.

Held:

(1) The plaintiff failed to adduce sufficient evidence to support most of the claims.

(2) The court awarded a total amount of damages of K16,480.00 plus interest of K9,031.04, being a total judgment sum of K25,511.04.

Cases cited

The following cases are cited in the judgment:

Abel Kopen v The State [1988-89] PNGLR 655
Daniel Jifok v Kambang Holdings Ltd (2008) N3475
Daniel Occungar v Luke Kiliso (2010) N4102
Graham Mappa v ELCOM (1992) N1093
Jonathan Mangope Paraia v The State (1995) N1343
Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07

TRIAL

This is a trial on assessment of damages after entry of default judgment.

Counsel

S Tanei, for the plaintiff
B Lakakit, for the first defendant

24 August, 2012

1. CANNINGS J: On Friday 21 October 2005 there was a collision between:

• a Toyota Hiace bus owned by the plaintiff, Daniel Guasilu, and driven by his employee, Ray Gambu; and
  
• a Toyota Landcruiser utility owned by the first defendant, the Enga Provincial Government, and driven with its authority by its agent, Bane Kapukama.
  

2. The collision occurred on the Bruce Jephcott Highway near Walium, Madang Province, when the Hiace, a Public Motor Vehicle, was approaching a bridge. It slowed to cross the bridge and the Landcruiser, which was travelling close behind, collided with its rear end. The plaintiff commenced a negligence action against the Enga Provincial Government and the State. He succeeded in obtaining default judgment against the Provincial Government and a trial has been held on assessment of damages. The plaintiff claims three heads of damage: cost of repairs, K15,917.61, business losses, K763,363.47, and pain and suffering, unspecified, a total claim of K779,281.08 plus the unspecified sum for pain and suffering.

1 REPAIRS

3. The plaintiff has adduced evidence of quotes from three motor vehicle repairers, the amounts being K4,880.00, K7,480.00 and K15,917.61. The second one is by Ela Motors Madang, an authorised dealer in Toyota motor vehicles. That presents as the most reliable quote, so that is the amount I will award: K7,480.00.

2 BUSINESS LOSSES

4. If a defendant causes damage to a plaintiff's profit-earning asset, the plaintiff is entitled to damages to compensate him for profits lost during the period that is reasonable to repair the asset (Abel Kopen v The State [1988-89] PNGLR 655). Ideally the plaintiff should provide an audited set of accounts to verify his claim. However, if that evidence is not forthcoming, it does not follow, necessarily, that the plaintiff will be awarded nothing. The court will do the best it can on the evidence that is available (Graham Mappa v ELCOM (1992) N1093, Jonathan Mangope Paraia v The State (1995) N1343, Misac Pokonoming v Jeffery Simiri WS 1596/2005, 26.10.07).

5. The plaintiff claims that he could not afford to get his bus repaired and that it was unroadworthy because of the accident and that he had to sell it. He claims that he was earning annual gross income (by operating the bus six days a week between Madang and Lae) of K149,760.00, ie K12,480.00 per month. He has multiplied that sum by seven years (even though seven years have not yet passed since the accident) to make a gross claim of K1,048,320.00, from which running costs of K284,956.53 have been deducted to arrive at a total claim of K763,363.47.

6. There are two problems with this claim. First, there is no set of accounts, audited or unaudited, to verify the figures. Secondly, the period of seven years to repair or replace the vehicle is ridiculous. Any prudent PMV operator will ensure that their vehicle is covered by comprehensive motor vehicle insurance, which will significantly reduce the risk of it being off the road for a long period if it is involved in an accident. I will assess lost profits at a nominal figure of K3,000.00 per month. As for a reasonable period to effect repairs or organise a replacement vehicle I have looked at what Woods J allowed in the Kopen and Mappa cases (three weeks and 13 weeks respectively) and what I have allowed in two recent cases, Daniel Jifok v Kambang Holdings Ltd (2008) N3475 and Daniel Occungar v Luke Kiliso (2010) N4102 (three months in each), and compared the facts of this case with the facts in those cases. I will allow a period of three months. The amount of business losses is K3,000.00 per month x 3 months = K9,000.00.

3 PAIN AND SUFFERING

7. This is a nebulous claim, unsupported by particulars or any credible evidence. Nothing is awarded.

SUMMARY OF DAMAGES ASSESSED

(1) repairs: K7,480.00;

(2) business losses: K 9,000.00;

(3) pain and suffering: 0.

being a total amount of K16,480.00.

INTEREST

8. Interest will be awarded at the rate of 8 per cent per annum on the total amount of damages under Section 1(1) of the Judicial Proceedings (Interest on Debts and Damages) Act Chapter No 52. Interest is calculated from the date on which the cause of action accrued, 21 October 2005, to the date of this judgment, a period of 6.85 years, by applying the following formula:

• D x I x N = A
  

Where:

• D is the amount of damages assessed;
• I is the rate of interest per annum;
• N is the appropriate period in numbers of years;
• A is the amount of interest.
  

Thus K16,480.00 x 0.08 x 6.85 = K9,031.04.

COSTS

9. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party on a party-to-party basis. In this case there is no clear winner. The plaintiff has on the one hand succeeded in obtaining an award of damages but on the other hand has succeeded in convincing the court that only 1.18% (K9,031.04 out of K763,363.47) of his claim had merit; 98.82% of the claim was without merit. The defendant has succeeded in showing that the vast bulk of the claim had no evidentiary basis and was misconceived. In these circumstances it is appropriate that the parties bear their own costs.

ORDER

10. The court orders that:

(1) the first defendant shall pay to the plaintiff damages of K16,480.00 plus interest of K9,031.04, being a total judgment sum of K25,511.04;

(2) the parties will bear their own costs;

(3) time for entry of the judgment is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
_____________________________

Narokobi Lawyers: Lawyers for the Plaintiff
Lakakit & Associates Lawyers: Lawyers for the First Defendant