N5319

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 801 OF 2011

BETWEEN

JOHN WARIVAMA
Plaintiff

AND

HENRY NAGT SAPAU
First Defendant

AND

MICAH SAPAU trading as WEST NEW BRITAIN BUSINESS COLLEGE
Second Defendant

AND

WEST NEW BRITAIN BUSINESS COLLEGE
Third Defendant

Kimbe: Makail, J
2013: 09th & 14th August

ASSESSMENT OF DAMAGES – Negligence – Damages arising from damage to motor vehicle – Recovery of costs of repair and loss of business income – General damages for frustration, distress and hardship – Special damages – Proof of

Cases cited

Kerekal Farming -v- Queensland [1995] PNGLR 401
Samuel Roth -v- Samuel Waironak and Lawrence Jogamup and Maigari Limited (2011) N4452
Lawrence Sausau -v- Joseph Kumgal (2006) N3253
Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958 
Peter Aigilo -v- Sir Mekere Morauta, as Prime Minister & The State (2001) N2103

Counsel:

Mr A Klewaki, for Plaintiff
No appearance, for Defendants

JUDGMENT

14th August, 2013

1.	MAKAIL, J: This is an ex parte trial on assessment of damages, default judgment having being entered against the defendants on 18th February 2012. The claim is based on negligence. It arises from a motor vehicle accident where on 16th February 2011 at 3:45 pm, the plaintiff's motor vehicle collided with the defendant's motor vehicle at Kumbango Plantation. As a result, the plaintiff's motor vehicle suffered extensive damage. The plaintiff claims: 

•	Damages for costs of repairs of K22,285.05,
•	Damages for loss of business income, 
•	General damages for frustration, distress and hardship,
•	Special damages and
•	Interest at 8%.

2.	The plaintiff relies on his affidavit sworn and filed on 10th July 2012 (Exhibit "P1") to establish his losses. It is submitted that the plaintiff bears the onus of proving his losses and based on his affidavit, he has established his losses and should be awarded damages. The law is that even where default judgment is entered, the onus of proof is on the plaintiff to prove his losses. The evidence must be clear, not vague and hearsay. 

3.	Based on the certificate of registration and third party insurance marked as annexure "A" to his affidavit, I accept that he is the owner of the motor vehicle. As to the costs of repairs, he also annexed as annexure "C" to his affidavit a quotation from Kimbe Auto and Marine Centre dated 18th February 2011 in the sum of K22,285.05. I am satisfied the plaintiff has proven this head of damages and I award this sum.

4.	As to the claim for loss of business income, the plaintiff deposes that he is a registered surveyor and runs a private surveying business under the business name of Songri Mapping Services primarily in the West New Britain Province. He started this business on 29th October 2010. The work involves transporting heavy equipment and travelling into bushes and long distances. The motor vehicle was bought to assist him and it was of great assistance. When it was damaged, he missed out on work as he could not attend to them due to lack of transport.

5.	He had several survey works including a major engagement with West New Britain Provincial Government through the Kalia Kove Local-level Government for sub-division of Silovutu Township. He was asked by the Local-level Government to complete the work quickly and had to hire a motor vehicle from Wildade Transport Services in Kimbe for six days to complete the work for a total sum of K3,900.00 which he paid. The value of the work was K477,676.00 but due to the lack of transport, work was hampered and he was paid only K66,000.00. He missed out on K411,676.00.

6.	The other survey work was with Rigula Oil Palm Estate and worth K55,602.50. He borrowed a friend's motor vehicle to attend to the work but did not put a lot of effort into it because he had to return it on time. He was paid a sum of K27,801.25 with a balance of K27,801.25 still outstanding. He claims a total sum of K439,477.25 comprising of K411,676.00 and K27,801.25. 

7.	The plaintiff's counsel submits that the loss of business earnings is a total sum of K439.477.25. On the evidence, I am satisfied that the plaintiff lost income as a result of damage to his motor vehicle. But I am not satisfied that K439,477.25 is the total loss of profit. I hold this view because he has not produced evidence of loss of profit. That is, while he has produced evidence of income for his business, he has not produced evidence of his expenses to enable the Court to work out the profit. Better still, he could have produced evidence of financial statements to show the loss of profit. In Kerekal Farming -v- Queensland [1995] PNGLR 401 at 405, the Court said that:

"The plaintiff is also claiming loss of profit whilst the vehicle was out of service because of the accident and because of the delay in the defendant meeting the claim. However, the plaintiff has not presented any financial statements to show the income received from the operation of the truck. It has merely been stated that the company had a contract for haulage with Placer and was earning an average of K22, 000.00 per month. Then there is a bank deposit book. However, there is no evidence of the details of any contract or of the breakdown of the details of that income, namely, what were the running costs etc. So how can this Court find an amount for loss of profits, when there are no detailed figures to support such?"

8.	In the absence of such evidence, I am not satisfied that he should be awarded the sum of K439.477.25. However, since he has produced evidence that his surveying business brought in income, I will follow Samuel Roth -v- Samuel Waironak and Lawrence Jogamup and Maigari Limited (2011) N4452, also a case of loss of motor vehicle and award nominal damages in the sum of K10,000.00.

9.	The third head of claim is general damages for frustration, distress and hardship. The plaintiff deposes that he has suffered stress and anxiety as a result of the loss of motor vehicle. He had to look for alternative motor vehicles to use for his work. His counsel submits that the plaintiff should be awarded general damages for the stress and anxiety caused by the defendants' negligence. Comparable awards in past cases show that the National Court has awarded general damages ranging from K3,000.00 to K20,0000.00 for frustration, distress and hardship. Some of the cases are Lawrence Sausau -v- Joseph Kumgal (2006) N3253; Peter Na-al -v- Michael Debege & Fly River Provincial Government (2000) N1958 and Peter Aigilo -v- Sir Mekere Morauta, as Prime Minister & The State (2001) N2103. These awards were made in wrongful dismissal cases. This case concerns a loss of motor vehicle.

10.	In Peter Aigilio's case, the plaintiff was the Commissioner of Police and was dismissed. He sued the State for wrongful dismissal. The Court found that the dismissal was unlawful and awarded damages. One of the head of damages awarded was for frustration, distress and hardship. The Court awarded K20,000.00. It awarded this sum because it found that the plaintiff had suffered acute severe Nephrotic syndrome, which according to a medical report from the doctor, was attributed to the dismissal. In addition, it found that the plaintiff had mitigated his losses by seeking alternative employment but was unsuccessful.

11.	Comparing this case with Peter Aigilo's case, I am of the view that an award of K5,000.00 would be reasonable given that there is no evidence of any serious illness attributed to the loss of the motor vehicle. However, the plaintiff has mitigated his losses by hiring and using alternative motor vehicle to work while his motor vehicle was being repaired. This sum is also consistent with Samuel Rot's case (supra) where K5,000.00 was awarded. For these reasons, I award K5,000.00.

12.	The fourth head of claim is special damages. Special damages must be strictly proven. There must be evidence of loss such as receipt of payment to prove the loss. Counsel for the plaintiff concedes that while the plaintiff claims K4,920.00 as monies spent on medical expense and loss of pay, there are no receipts of payment and payslips to verify his assertion. I agree with this submission. As there is no proof of this loss, this head of claim is dismissed.

13.	Fifthly, the plaintiff claims interest at 8% pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act. It is discretionary. I award interest at 8% from the date of issue of writ to the date of judgement on the total judgment of K37,285.05 (K22,285.05 + K10,000.00 + K5,000.00). The writ was issued on 29th July 2011. The total number of days between that date and date of judgment, which is today is 745. The daily rate is K8.17 and multiplying this sum by 745 days gives K6,086.65. I award this sum. 

14.	Finally, I award cost of the proceedings to the plaintiff to be taxed if not agreed.

15.	The judgment of the Court is: 

1.	The plaintiff is awarded a total sum of K37,285.05 as damages.
2.	8% interest from date of issue of writ to date of judgment of K6,086.65.
3.	Cost of the proceedings to the plaintiff to be taxed if not agreed 
__________________________________________

Kumbari Lawyers: Lawyers for Plaintiff