Nom v Mendi Town Authority [2017] PGNC 54; N6676 (23 March 2017)

N6676

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS No. 896 OF 2013

BETWEEN

SAPUNAIK OPI NOM

Plaintiff

AND

MENDI TOWN AUTHORITY

Defendant

Mendi: Ipang, J

2017: 13^th February & 23^rd March

CIVIL – Trial on assessment of damages – Plaintiff bears the burden to prove his damages – that is proving both facts and the amount of damages claimed before he can recover his damages.

CIVIL – Plaintiff claimed the Defendant owed him K60, 890.00 for outstanding invoices for hire of his vehicle – No invoices produced in Court.

Cases cited
Komasa-v- Jossy [2012] PGNC 155; N48632 October, 2012)
Lagan-v-The State [1995] PGNC32; N1369 (15 September, 1995)
William Patitts for and on behalf of Sasaova Business Group-v-Independent State of Papua New Guinea N3088 (29 September, 2006)

Overseas Cases:

Robinson-v-Harman [1848] EngR 135; (1848) 1 Exch 850
Livingstone—v-Rawyards Coal Co. (1880) 5 App. Cases 25
Ratcliffe-v-Evans [1892] 2QB 524

Counsel:
T. Berem, for the Plaintiff

JUDGMENT

23^rd March, 2017

1. IPANG J: This is the assessment on damages were the claim is part admitted by the Defendant. The claim by the Plaintiff is for non-payment for invoices for garbage collection services for his motor vehicle rendered to the Defendant from 2^nd February, 2005 to 24^th December, 2007.

2. On 02^nd February, 2005 the Defendant orally engaged the Plaintiff’s vehicle, a Toyota Dump Truck bearing Registration Number AGK 204 to render garbage and rubbish collection in Mendi town, Southern Highlands Province. Under the said verbal agreement, the Defendant agreed to settle the Plaintiff’s invoices as and when they were due and owing. The Plaintiff’s vehicle was engaged for three (3) years from 02^nd February, 2005 to 24^th December, 2007. On the 24^th December, 2007 the Defendant terminated the said agreement. At the time of the termination of the agreement the Defendant’s have settled the Plaintiff’s invoices on three (3) occasions only;
(i) K4, 800.00 by BSP Cheque (Cheque No. 512) dated 08^th December, 2011
(ii) K3, 000.00 by BSP Cheque (Cheque No. 650) dated 10^th December 2012
(iii) K500.00 cash in or around November, 2013.

3. The Defendant through its agent John Koaba admitted in his Affidavit in Support sworn and filed on the 25^th February, 2016 the Plaintiff’s claim however said that the Defendant is only indebted to pay the Plaintiff on K12, 500.00 which is the outstanding invoice. Otherwise, he denied the balance of the claim as pleaded in the prayer of relief. The Plaintiff maintains that he is owed K60, 890.00 in outstanding invoices. He further claims that his vehicle broke down and was unroad worthy as he was unable to maintain due to the failure by the Defendant to pay the invoices on time or as and when they were due and owing.

4. Issues

1. Whether the Defendant has breached the oral agreement when it failed to pay the Plaintiff’s invoices on time and as and when the invoices were due and owing.

2. If the answer to the above (1) is affirmed, then what are the Plaintiff’s losses.

Law & Practice

5. The aim of compensatory damages for breach of contract is to put the claimant in to as good a position as it would in if the contract had been performed.

The compensatory aim is of fundamental importance. It guides the whole process of assessment. In Robinson-v-Harman [1848] EngR 135; (1848) 1 Exch 850 at p. 855 Parke B stated:

“The rule of common law is that where a party sustains a loss by a breach of contract he is, so far as money can do it, to be placed in the same situation with respect to damages as if the contract has been performed.''

6. In the most cited tort authority case of Livingstone-v-Rawyards Coal Co. (1880) 5 App. Case 25 at 39, Lord Blackburn stated;

“... that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation or reparation."

7. In order to prove damages to a standard of reasonable certainty to a loss, Bowen LJ stated in Ratcliffe-v-Evans [1892] 2QB 524 at pp. 532-533;

“... As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligence principles. To insist upon more would be vainest pedantry,”

8. The terms of the oral agreement between the Plaintiff and the Defendant were as follow;

1. The motor vehicle will be engaged five (5) days a week.

2. The hourly engagement rate is K16 per hour K128 per day.

3. The truck owner shall at all material times ensure that the truck is regularly serviced and kept in an excellent mechanical condition.

4. The OIC Town Services will be keeping daily time sheets/log books and the owner of the truck will arrange counter records for cross checking at and of each day and reconcile before close of business.

5. Hire of the driver will be by the owner himself.

6. If payment is not made as early as possible then owner must wait until funds are made available for payment.

9. On the date of termination of the agreement on 24^th December, 2007 there were no records of invoices or letters of demand of claim by the Plaintiff to the Defendant in relation to outstanding sum of K60, 890.00 and the Defendant has also failed to keep and provide daily records and worksheets. However, the Defendant only provided a list of outstanding payments (Annexure B), Credit Account Balance (Annexure C), List of outstanding payments for various contractors (Annexure D) and Plaintiff’s Ledger Records (Annexure E) Refer to Affidavit of John Koaba sworn and filed on 25^th February, 2016.

10. Defendant claimed as of 30^th June, 2010, the Plaintiff is owed the sum of K24, 809.00. From this amount the Plaintiff was paid;

(1) 21^st July, 2010 Cheque Number 000267 K3, 000.00 – K21, 809.00

(2) 19^th November, 2010 Cheque Number 000341 K509.00 – K21, 300.00

(3) 01^st April, 2011 Cheque Number 000138 K500.00 – K20, 800.00

(4) 08^th December, 2011 Cheque Number 000512 K4, 800.00 – K16, 000.00

(5) 10^th December, 2012 Cheque Number 000650 K3, 000.00 – K13, 000.00

(6) 10^th November, 2013 Cheque Number Cash Paid K500.00 – K12, 500.00

Outstanding: K12, 500.00

11. The Plaintiff claimed the Defendant owed him the outstanding sum of K60, 890.00 as of 24^th December, 2007. That is for the hire of his truck for rubbish collection. Defendant has not kept proper records so as the Plaintiff as per the term (s) of the oral agreement. That included the payments that were made out to the Plaintiff. Plaintiff claimed three (3) payments were made totalling K8, 300.00. Whilst the Defendant claimed six (6) payments were made totalling K12, 500.00. Thus a difference of K4, 200.00.

12. Under this principle claim of K60, 890.00 for hire services there is no proper records kept by the Plaintiff and Defendant. In Lagan-v-The State [1995] PGNC 32; N1369 (15^th September, 1995) Injia, J (as he then was) adopted the words of Lord Coddard CJ in Bonham-v-Hyden Park Hotel Ltd [1948] 64 TLR 177 at p.178 and I find very much appropriate to adopt here:

“Plaintiff must understand that, if they bring action for damages, it is for them to prove their damages, it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying: “This is what I have lost, I ask you to give me these damages! They have to prove it.”

13. In Lagan’s case (supra) Injia, J (as he then was) quoted from McGregor on Damages (Sweet & Maxwell, 13^th Ed. 1972, London at p.35.

“The Plaintiff has the burden of proving both fact and the amount of damages before he can recover substantial damages. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a given allegation forms an essential part of a person’s case, the proof of such allegation falls on him. Even if the Defendant fails to deny the allegation of damages or suffers default, the Plaintiff must still prove his loss.”

14. Injia, J (as he then was) said in Lagan (supra) that:

“the minimum requirement in any action is for the plaintiff himself to give admissible evidence in support of his claim. He is not exonerated from this duty in anyway by the fact that default judgment has been entered and that trial on assessment of damages is proceeding ex parte or that he has authorised another person to give evidence on his behalf. 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.”

Non-payment of invoices at K60, 890.00

15. I would award 50% of the sum claimed. That would be K30, 445.00. Taking into account K12, 500.00 already paid leaves the balance of K17, 945.00 still owing. See William Patitts For and On Behalf of Sasaova Business Group-v-Independent State of Papua New Guinea (2006) N3088 & Komasa-v-Jossy [2012] PGNC 155, N4863.

Loss of Plaintiff’s Vehicle

16. The Plaintiff claimed for loss of his vehicle through the natural process of wear and tear and for its break down after the Plaintiff was not able to put his vehicle for service as his invoices were not paid. Plaintiff stated his vehicle was valued at around K60, 000.00 and ask for that amount. Defendant said there is no evidence to substantiate the Plaintiff’s loss. No mechanical report nor valuation report. The plaintiff claimed for K60, 000.00. I will award K10, 000.00

Physical, Financial Hardships Suffered

17. It is evident that the Plaintiff was not paid when his payments were due. There were delays. Plaintiff is entitled to be compensated for stress, financial hardships, embarrassment and inconveniences. Plaintiff claimed K10, 000.00. Defendant admitted liability of K5, 000.00. I will award a sum of K8, 000.00.
    

Special Damages

18. Both parties agreed at K2, 500.00. I therefore award K2, 500.00 for special damages.
    

Costs

19. Plaintiff asks for K3, 000.00 for costs. Defendant submitted that parties bear each other costs. I will award a sum of K2, 000.00 for costs.

Interests

20. I award interests on the total judgment at the rate of 2% per annum pursuant to Judicial Proceedings (Interests on Debts and Damages) Act, 2015 (No. 15 of 2015).

Summary

21. I award the following;

(i) Hire of truck – K17, 945.00

(ii) Loss of Plaintiff’s vehicle – K10, 000.00

(iii) Physical & Financial stress, hardship – K8, 000.00

(iv) Special Damages – K2, 500.00

(v) Costs – K2, 000.00

Sub-Total K40, 445.00

Plus 2% interest K808.90

Total K41, 253.90

Judgement in the sum of K41, 253.90

______________________________________________________________

Public Solicitor: Lawyer for the Plaintiff