Niangu v Dieter Service Engineering [2019] PGNC 1; N7631 (9 January 2019)

N7631

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1309 OF 2009

JACKIE NIANGU
Plaintiff

V

DIETER SERVICE ENGINEERING
Defendant

AND
DIETER SERVICE ENGINEERING
Cross-claimant

V

JACKIE NIANGU
Cross-defendant

Madang: Cannings J
2017: 29 December,
2018: 9 October,
2019: 9 January

NEGLIGENCE – motor vehicle repairer – duty of care to customer – whether vehicle negligently repaired – onus of proof – whether customer proved that repairer was negligent.

PRACTICE AND PROCEDURE – cross-claim by defendant – burden of proof on cross-claimant – whether cross-claim disclosed cause of action – whether cross-claimant could prove facts on which cross-claim based.

The plaintiff took his PMV truck to the defendant motor vehicle repairer on several occasions. On the last occasion the truck remained with the defendant for four months before the plaintiff collected it. The plaintiff returned the truck one day later, claiming that the problem had still not been fixed and demanded that the defendant supply a new engine. The defendant refused, claiming that the engine problem was fixed and demanded that the plaintiff pay for the repairs. The plaintiff refused to pay and the truck remained in the defendant’s yard. The plaintiff then commenced proceedings against the defendant, claiming damages of K195,812.00 in respect of loss of profits, for the tort of negligence. The defendant filed a cross-claim against the plaintiff, claiming K4,653.00 for the costs of repairs and storage fees of K50.00 per day. At the time of trial, the truck had remained in the defendant’s yard for more than nine years.

Held:

(1) To establish a cause of action in negligence the plaintiff has to prove all elements of the tort: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached that duty (acted negligently); (c) the breach of duty caused damage to the plaintiff; and (d) the type of damage was not too remote.

(2) The repairer of a motor vehicle, such as the defendant, owes a duty of care to their customer, such as the plaintiff, so the first element was proven.

(3) The plaintiff was unable to prove the facts required to establish that the defendant negligently repaired the truck, due to lack of credible corroboration. The second element was not proven and he was unable to establish a cause of action in negligence.

(4) The defendant’s cross-claim failed to disclose a reasonable cause of action and was dismissed for that reason alone; but if it were presumed that the cause of action was breach of contract, the claim was unsupported by the evidence and also failed for that reason.

(5) Both the claim and the cross-claim were dismissed and the parties were ordered to bear their own costs.

(6) As to the truck, which remains in the possession of the defendant, the Court decided that it was necessary, to do justice and reduce the likelihood of further litigation, to order that the plaintiff had 30 days to retrieve it, without charge, failing which it would become the property of the defendant.

Cases cited:
Papua New Guinea Cases

The following cases are cited in the judgment:

Magiten v Tabai (2008) N3470
Kaipa v RD Tuna Canners Ltd (2017) N6650

Overseas Cases

Donoghue v Stevenson [1932] AC 562

STATEMENT OF CLAIM & CROSS-CLAIM

This was a trial in which the plaintiff sought damages for negligence and the defendant cross-claimed for repair costs and storage charges.

Counsel

B Tabai, for the Plaintiff & Cross-Defendant
M Murray, for the Defendant & Cross-Claimant

9^th January, 2019

1. CANNINGS J: The plaintiff, Jackie Niangu, took his Hyundai truck to the defendant motor vehicle repairer, Dieter Service Engineering, of Wewak, on several occasions for engine repairs and service. On the last occasion the truck remained with the defendant for four months before the plaintiff collected it. The plaintiff returned the truck one day later, claiming that the problem had still not been fixed and demanded that the defendant supply a new engine. The defendant refused, said that the engine problem was fixed and demanded that the plaintiff pay for the repairs. The plaintiff refused to pay and the truck remained in the defendant’s yard. The plaintiff then commenced proceedings against the defendant, claiming damages of K195,812.00 in respect of loss of profits, for the tort of negligence. The defendant filed a cross-claim against the plaintiff, claiming K4,653.00 for the cost of repairs and storage fees of K50.00 per day. The following issues arise:

1. Has the plaintiff established a cause of action in negligence?
   
2. Has the defendant proven the cross-claim?
   
3. What order should the Court make?
   
1. HAS THE PLAINTIFF ESTABLISHED A CAUSE OF ACTION IN NEGLIGENCE?
   

2. To establish a cause of action in negligence the plaintiff has to prove all elements of the tort: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached that duty (acted negligently); (c) the breach of duty caused damage to the plaintiff; and (d) the type of damage was not too remote (Kaipa v RD Tuna Canners Ltd (2017) N6650).

3. I uphold the submission of Mr Tabai for the plaintiff that under the neighbour principle of the classic case of Donoghue v Stevenson [1932] AC 562 a person who takes his vehicle to a repairer of vehicles is the neighbour of the repairer as it is reasonably foreseeable that the repairer could cause harm to the customer if he does not use reasonable care in the repair of the vehicle. The defendant clearly owed a duty of care to his customer, the plaintiff, so the first element is proven.

4. As to the second element, it is non-contentious that the defendant had to use reasonable care and skill in the repair of the truck (Magiten v Tabai (2008) N3470). The defendant was duty-bound to act professionally and diligently. The question is whether he maintained that standard. This is where the facts of the case become critical. The plaintiff and the defendant have given different evidence.

Plaintiff’s evidence

5. He purchased the truck brand new in January 2005 in Lae and shipped it to Wewak. He first took the truck for repair to the defendant in May 2007 as the engine had an overheating problem, there were vibrations in the crankshaft and the engine was leaking oil. The defendant worked on the engine but the problem was not fixed and this happened on at least four occasions in 2007 and 2008. He kept taking the truck back to get it repaired. The last time it happened was on 30 September 2008. He picked up the truck but the problem was still not fixed so he returned it the next day and refused to pay any more and demanded that the defendant install a new engine.

6. The plaintiff gave evidence of these events in two affidavits and his evidence was corroborated by affidavit and oral evidence by Leo Maghing who said that he was a mechanic working at the defendant’s workshop at the time. Mr Maghing recalled the problems repairing the plaintiff’s truck which he said were caused by the defendant’s proprietor, Mario Sarita, directing one of his mechanics, Gerard Jalkwe, to fit a new head gasket, which was the wrong one. Mario then wanted the timing gear checked so he instructed Gerard to remove the timing cover and the crankshaft pulley. The timing cover was removed but the crankshaft pulley was too strong to remove so Mario resorted to the use of oxyacetylene, which he applied to the crankshaft pulley until it was red hot. This cracked the fan belt housing. Eventually the pulley and the timing cover were removed and the timing gear was checked. There was nothing wrong with it. So Mario directed that the head be removed. It was then confirmed that the wrong gasket had been fitted. Mario gave the cracked crankshaft pulley to the workshop welder to weld. That was done but then there was a problem fitting the pulley because worn threads would not allow the lock-nuts to be fully tightened. This caused noisy vibrations from the fan belt housing when the engine was started.

Defendant’s evidence

7. Mario Sarita agreed that the plaintiff had brought the truck several times to his workshop in 2007-2008 for service and other minor matters but refuted the plaintiff’s claim that it was a new vehicle and that the engine was overheating. Mr Sarita said the truck was reconditioned and that the problem reported to him was not an overheating engine but that the truck was losing power going uphill. In May 2008 he fitted a new crankshaft and pulley. He test drove the truck himself and it ran beautifully. The truck remained in the workshop for four months before the plaintiff came in and collected it on 30 September 2008 without making payment. Then he came back the next day with the police and demanded that he be given a new engine. He and the plaintiff have remained at loggerheads since then. Meanwhile the truck has remained in his yard and as far as he is concerned it is in good working condition.

8. As for the evidence of Leo Maghing, he was at the time a trainee mechanic who only lasted 12 months in the job before his employment was terminated for inadequate performance.

Findings of fact

9. I uphold the submission of Mr Murray, for the defendant, that the evidence of Leo Maghing is of little probabtive value as he was only a trainee at the time and he worked for only a short time before his employment was terminated. He cannot be regarded as an independent or reliable witness. He conceded during cross-examination he was still (nine years after the events on which he was giving evidence) not a qualified mechanic.

10. That makes the plaintiff’s case vulnerable as apart from the evidence of Leo Maghing there was, with one exception, no corroboration of his version of events . The exception is with his claim that he purchased the truck brand new. He has provided corroboration in the form of a purchase invoice from PNG Motors in Lae in which the vehicle is described as new. So I find that the truck was purchased new in 2005.

11. As to the claim that the truck was presented to the defendant with an overheating engine problem, which the defendant tried to fix unsuccessfully on several occasions, making the problem worse, I have great difficulty accepting the plaintiff’s evidence. It lacks corroboration. The defendant’s evidence is also uncorroborated. But it is not the defendant’s case. It is the plaintiff who must prove contentious facts according to the civil standard of proof: on the balance of probabilities. I find that the plaintiff has failed to discharge that burden.

12. He is unable to prove the facts required to establish that the defendant negligently repaired the truck. He has not proven the second element of the tort of negligence. He is therefore unable to establish a cause of action in negligence.

2. HAS THE DEFENDANT PROVEN THE CROSS-CLAIM?
   

13. The cross-claim is poorly pleaded. The claim is vaguely claimed to be that the plaintiff (the cross-defendant) did not pay his repair bill and has incurred storage charges of K50.00 per day. No cause of action is pleaded. Even if it were presumed that the cause of action is breach of contract, the claim is unsupported by the evidence. On both accounts – inadequate pleading and inadequate evidence – the cross-claim has not been proven.

3 WHAT ORDER SHOULD THE COURT MAKE?

14. Both the plaintiff’s statement of claim and the defendant’s cross-claim will be dismissed and the parties will bear their own costs. What happens to the truck? I invited both counsel to address the court on this issue but their responses were shilly-shallying. This case needs to be brought to a close. It has dragged on far too long. It took the parties nine years to get the case ready for trial. I am authorised by Section 155(4) of the Constitution to make such orders as are necessary to do justice in the circumstances of this case. I consider that it is necessary, to do justice and reduce the likelihood of further litigation, to order that the plaintiff have 30 days to retrieve the truck, without charge, failing which it will become the property of the defendant.

ORDER

1. All relief sought in the statement of claim is refused and the statement of claim is dismissed.
   
2. All relief sought in the cross-claim is refused and the cross-claim is dismissed.
   
3. The truck at the centre of these proceedings, a Hyundai HD65, shall during business hours on a working day, by 8 February 2019, be retrieved by the plaintiff from the defendant’s yard, without charge or encumbrance, and the defendant shall cooperate in releasing the truck to the plaintiff; and if the plaintiff fails to retrieve the truck in accordance with this order, the truck shall thereupon become the property of the defendant.
   
4. Subject to any specific costs order made in the course of the proceedings the parties shall bear their own costs of the proceedings.
   
5. Time for entry of this order is abridged and the file is closed.
   

Judgment accordingly.
_____________________________________________________________
Tabai Lawyers: Lawyers for the Plaintiff & Cross-Defendant
Murray & Company Lawyers: Lawyers for the Defendant & Cross-Claimant