Anis v Taksey [2013] PGNC 189; N5431 (6 December 2013)

N5431

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 850 OF 2007

ALLEN ANIS
Plaintiff

V

DOBON TAKSEY
First Defendant

GOGOL NARU RESOURCE OWNERS ASSOCIATION INC
Second Defendant

Madang: Cannings J
2013: 30 September, 18 October, 6 December

DAMAGES – negligence – assessment of damages after liability established after trial – motor vehicle accident – damages claimed for vehicle repairs, business losses and pain and suffering.

A vehicle owned by the second defendant and driven by its employee, the first defendant, collided with a truck, a profit earning asset, owned by the plaintiff, causing damage to the truck. The plaintiff commenced a negligence action and succeeded in establishing liability against the defendant. At a trial on assessment of damages the plaintiff claimed three heads of damage: cost of repairing the truck K17,432.68, consequential losses (loss of income K17,757.60 and future economic loss K22,936.00) and stress and anxiety (at the discretion of the court), being a total claim of K58,126.68 plus the unspecified amount for stress and anxiety. The defendants argued that a total of only K14,000.00 should be awarded.

Held:

(1) The plaintiff was entitled to the actual cost of repair of the vehicle, K17,432.68.

(2) In addition he was awarded damages to compensate him for profits lost during the period that was reasonable to repair the vehicle. The claim for loss of income was calculated at K3,000.00 per month and a reasonable time for repair was three months, thus K9,000.00 was awarded.

(3) Nothing was awarded for future economic loss or stress and anxiety, so total damages awarded was K17,432.68 + K9,000.00 = K26,432.68, plus interest of K14,231.35, being a total judgment sum of K40,664.03.

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
Desmond Guasilu v Enga Provincial Government (2012) N4774
Livingston v Raywards Coal Co [1880] 5 App Cases 25
Samuel Roth v Samuel Waironak (2011) N4452

TRIAL

This was an assessment of damages after entry of judgment on liability.

Counsel

T M Ilaisa, for the plaintiff
B B Wak, for the first defendant

6th December, 2013

1. CANNINGS J: This is an assessment of damages after the defendants in an earlier trial were found liable in negligence arising from a road accident in Madang on 26 March 2007. The plaintiff's Dyna truck was damaged in a collision with a Hyundai truck, driven by the first defendant, who was the employee of the owner, the second defendant. Judgment was handed down in favour of the plaintiff on 22 December 2011 (Allen Anis v Dobon Taksey & Gogol Naru Resource Owners Association Inc (2011) N4468).

2. The plaintiff claims three categories of damages: cost of repair of the truck K17,432.68, consequential losses (loss of income K17,757.60 and future economic loss K22,936.00) and stress and anxiety (at the discretion of the court), being a total claim of K58,126.68 plus the unspecified amount for stress and anxiety. The defendants argued that a total of only K14,000.00 should be awarded.

1 COST OF REPAIRING TRUCK

3. The plaintiff has adduced evidence that the cost of repairing the truck was at least K17,432.68. Ela Motors Madang provided a quote for that amount. The purpose of an award of damages is to put the innocent party in the same position, as far as possible, as he would have been in if the wrongdoer had not committed the wrongful act (Livingston v Raywards Coal Co [1880] 5 App Cases 25, Samuel Roth v Samuel Waironak (2011) N4452). To put the plaintiff in the same position he was in before his truck was negligently damaged, I consider a reasonable amount to award is the amount claimed, as the quote is provided by the a company that sells Toyota Dyna Trucks and repairs such vehicles. The sum of K17,432.68 is awarded.

2 CONSEQUENTIAL DAMAGES: LOSS OF INCOME & FUTURE ECONOMIC LOSS

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).

5. The plaintiff claims K17,757.00. However, I am not satisfied with the evidence in support of that sum. The best and fairest approach is to assess lost income at the nominal figure that I have applied in similar cases such as Desmond Guasilu v Enga Provincial Government (2012) N4774: K3,000.00 per month. As for a reasonable period to effect repairs I allow the standard period adopted in cases such as Daniel Jifok v Kambang Holdings Ltd (2008) N3475 and Daniel Occungar v Luke Kiliso (2010) N4102: three months. Nothing will be awarded for future economic loss as such a claim is already taken care of by the award of damages for loss of income. The total amount awarded for consequential damages is K9,000.00.

3 PAIN AND SUFFERING

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

SUMMARY OF DAMAGES ASSESSED

7. The assessment is:

(1) repair cost of truck: K17,432.68;

(2) consequential damages: K9,000.00;

(3) pain and suffering: 0.

being a total amount of K26,432.68.

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, 26 March 2007, to the date of this judgment, a period of 6.73 years, by applying the 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 K26,432.68 x 0.08 x 6.73 = K14,231.35.

COSTS

9. The general rule is that costs follow the event, ie the successful party has its costs paid for by the losing party. 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 45.5% (K26,432.68 out of K58,126.68) of his claim had merit; 54.5% of the claim was without merit. The defendant has succeeded in showing that the bulk of the claim was misconceived. It is appropriate in these circumstances that the parties bear their own costs.

ORDER

(1) The defendants shall pay to the plaintiff damages of K26,432.68 plus interest of K14,231.35, being a total judgment sum of K40,664.03.

(2) The parties will bear their own costs.

Judgment accordingly.
_________________________________________________________

Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the Plaintiff
Kunai & Co Lawyers: Lawyers for the First Defendant